Reproductive Rights And Autonomy - The Law Leans Backwards; A Critical Analysis Of The Laws On Surrogacy & Assisted Reproductive Technology

Update: 2022-07-06 05:18 GMT

"You may have to fight a battle more than once to win it." – Margaret Thatcher

Infertility as a medical condition is an impediment in the overall well-being of couples. It is an emotional roller coaster, often accompanied by grief and loss. It is not the process of surrogacy or ART, but the miracle of "conception" that guarantees success to those yearning to experience parenthood. Research suggests that about 10 to 15 percent of the country's population suffers from infertility issues[1]. The reasons could be aplenty, ranging from medical conditions, lifestyle habits, age factor, deferring parenthood, or due to unknown causes. In these circumstances, assisted reproductive technology treatments come to the aid of infertile couples. When all fails, surrogacy is the only hope for couples wanting to have their biological child. In many cases, the child born through surrogacy is not genetically related to either parent.[2]

On 25 December 2021, the Government of India notified two of the most awaited legislations governing procreation – The Surrogacy (Regulation) Act, 2021[3] (the "Surrogacy Act") & The Assisted Reproductive Technology (Regulation) Act, 2021[4] (the "ART Act") (collectively, the "Acts"). At first brush, this seems like a step in the right direction, to govern and regulate surrogacy, an industry that was thriving until now without proper laws or governance. However, a closer look at the Acts reveal that they violate the very rights of women they are intended to protect.

It is further disturbing to note that the Acts lack comprehension of ground realities and practical difficulties experienced by infertile couples or surrogates. A consolidated review of the Acts reveal that the intention of the Legislature seems to be to curtail reproductive rights, and force adoption as the only option available to infertile couples. In this write-up, I will be focusing on the practical difficulties faced in implementation of the Acts, in addition to its disregard for fundamental rights, together with suggestions to make the Acts more beneficial to its target group.

Who can avail the services?


Summary of relevant provisions:

Under the ART Act, "commissioning couple"[5] is defined as "infertile married couple" where the woman is to be aged between 21 years and 50 years; and the man to be aged between 21 years and 55 years.

On the contrary, the Surrogacy Act defines "intending couple"[6] as those who have a medical condition necessitating surrogacy, and where the woman is aged between 23 years to 50 years; and the man is aged between 26 years to 55 years. If the woman is a widow or divorcee, to avail surrogacy, she should be aged between 35 to 45 years.

Additionally, to avail surrogacy, the "intending couple" should not have a surviving child (who is not mentally or physically challenged, whether biological or adopted or through surrogacy)[7].

Identified issues:

The primary issue here is that the Acts recognizes, as a couple, only legally married Indian man and woman above the age of 21 years and 18 years, respectively[8]. It excludes the LGBTQ community, couples in live-in relationships, and single men from having children through ART methods or surrogacy. Only recently, the Constitutional Bench of the Supreme Court decriminalized homosexuality[9], holding that bodily autonomy is individualistic and choice of partner is part of the fundamental right to privacy. With the Apex Court recognizing the homosexuals in 2018 itself, it is disturbing to note that the legislators choose to ignore their very fundamental right of reproduction. With the passing of these Acts, for the LGBTQ community, having a family is no longer an option.

What these Acts have failed to also recognize is that marriage is a choice. While single women are permitted to avail ART or surrogacy services, the same right is denied for single men. There seems to be no logical reason for carving out such discrimination, especially when single men are permitted to adopt, and there are real life instances of single men having successfully raised children while also balancing a career.

Another lacuna in the Surrogacy Act is that it does not recognize the issue of secondary infertility. There are people who, for medical reasons, are unable to bear more than one child. Preventing them from opting for surrogacy to have another child is a direct infringement of their reproductive right.

One of the conditions for a couple to be eligible to opt for surrogacy is to not have a surviving child (who is not mentally or physically challenged, whether biological or adopted or through surrogacy). India does not have a one child policy, therefore there is no rationale to impose this condition.

There is no explainable rationale to have different age limits for availing ART and surrogacy services. Consider a case where a woman is married at 21 years of age and has a known condition that prevents her from having a child naturally. While she is eligible to opt for ART services (that is, if she is using her own eggs) at 21 years, she can opt for surrogacy only when she is 23 years.

The situation is worse for a widow or a divorcee, as she can opt for surrogacy only after she turns 35 years of age[10]. The Acts further imply that while a single unmarried woman can opt for ART services[11], she cannot avail surrogacy services, whether or not she has a medical condition preventing her from bearing a child naturally. There is no rationale in carving out such sub-classes of woman based on their marital status and age, when medical conditions necessitating ART methods or surrogacy to have children can be prevalent at any point in time.

It is undeniable that there can be no surrogacy without ART. While so, there is no rationale for having different thresholds under the Acts, and further carving a separate threshold for a widow and divorcee and excluding single unmarried woman.

In fact, the Ministry for Women and Child Development suggested (as noted in the 102nd Report of the Parliamentary Standing Committee[12] which reviewed the Surrogacy (Regulation) Bill, 2016) (the "102nd Report") suggested that the option of surrogacy must be made available to every lawfully married infertile couple and also to every woman (whether married, single, separated or widowed). However, despite making this suggestion while reviewing the Surrogacy (Regulation) Bill, 2016, the drafters have failed to take in relevant recommendations into consideration.

Suggestions:

As noted in the 102nd Report, it is only fair to extend the scope of application of surrogacy services to single men, single women, while also taking note of the LGBTQ community and their fundamental rights, including the right to procreate.

The condition imposing restriction on couples to not avail surrogacy if they have a surviving child (who is not mentally of physically challenged) needs to be omitted, as it infringes on the reproductive rights of the couple and fails to take into consideration secondary infertility issues. It is also not clear if a widow or divorcee, who has a biological child of her own, can avail surrogacy services to have another child.

It is further necessary to have a relook at the varying age thresholds mentioned in both these Acts and harmonize the provisions, taking into consideration other compelling reasons that necessitate people to opt for surrogacy.

Donors and requirements

Summary of relevant provisions:

Sec. 2 (h) of the ART Act defines "gamete donor" as "a person who provides sperm or oocyte with the objective of enabling an infertile couple or woman to have a child."

Sec. 21(e) of the ART Act requires the clinics and banks to keep confidential, information about the couple seeking treatment, and the donor (if involved).

Sec. 22 (1) (b) of the ART Act requires the couple opting for an egg donor, to obtain an insurance coverage for a period of 12 months from an insurance company or agent recognized by the Insurance Regulatory and Development Authority (IRDAI). The Explanation (ii) further clarifies that the insurance is taken to provide "guarantee of compensation for specified loss, damage, complication or death of oocyte donor during the process of oocyte retrieval".

Sec. 25(1) of the ART Act restricts the adoption of Pre-implantation genetic testing of the embryo only for known, pre-existing, heritable or genetic diseases.

Sec. 27 (2) of the ART Act specifies that (i) males between 21 years and 55 years of age and (ii) females between 23 years and 35 years of age, can be donors. It is further specified that the sperm or oocyte of a single donor shall not be supplied by the bank to more than one commissioning couple; and that an oocyte donor shall donate only once in her lifetime.

Identified issues:

The decision to conceive using a donor (egg, sperm, or embryo adoption) embodies in it a host of medical, ethical, and moral issues. The restrictions provided in the ART Act as regards donor poses many questions on its implementation and viability.

The Act does not specify for a donor to be married and / or have a child prior to donating their gamete. Given that the treatment for ovum pick up involves administering hormones and taking medications, there is likelihood of the donor suffering from medical issues after the procedure.

Though not explicitly stated, from the foregoing provisions, it follows that a sperm donor can donate only once (irrespective of whether there has been a successful pregnancy using his sperms or not).

While the sperm quality can be tested through a simple semen analysis, there is no test as of date to check for the egg quality[13]. It is believed that a woman in her 20s is more fertile, and her fertility begins to decline as the biological clock ticks. However, age is not the only determining factor of egg quality. While it is generally believed that in vitro fertilization (IVF) or Intra Cytoplasmic Sperm Injection (ICSI) with donor eggs has a higher success rate, the live birth rates depend on a lot of other factors, including egg quality.

Infertility treatment is no doubt extremely stressful and draining, emotionally and financially. Unlike a surrogate, whose permission is required to be sought under the existing laws, a donor voluntarily donates her eggs, knowing fully well the process involved and its consequences. While so, expecting the commissioning couple or woman to incur expenses towards insurance coverage for donor, in addition to compensating the donor for using her eggs is an unwarranted added financial burden to commissioning couple.

It may be noted that under the Surrogacy (Regulation) Rules, 2022[14] the surrogate can attempt surrogacy procedure upto three (3) cycles, whereas a donor can donate only once. At the cost of being unfair to surrogates, the ART Act paves way for a donor to benefit more. She gets paid for eggs she has voluntarily donated, irrespective of its viability in achieving pregnancy, in addition to an insurance coverage, as a guaranteed compensation to cover for "loss, damage, complication or death of oocyte donor during the process of oocyte retrieval"[15]. When in fact, surrogacy is more complicated, in the sense, the surrogate must go through an ART process, if successful, spend the next 10 months of her life carrying a child for the intending couple, bear with pregnancy symptoms and complications, undergo mental and emotional stress, and yet her services should not be compensated for.

Suggestions:

While the quality of sperms can be assessed with a simple semen test, it is not possible to assess the quality of eggs until its fertilized.[16] Given the exorbitant costs involved in the process, it is suggested to consider as donor, a person who has had atleast one successful pregnancy.

If donors are permitted to donate only once, and for any reason the gamete does not result in a successful pregnancy, it severely restricts the pool of eligible donors. Considering the declining fertility rate in India[17], it is suggested to consider permitting donors to donate atleast twice.

The fact remains that donors (whose identity is always kept confidential) voluntarily choose to donate their gamete in return for a compensation, knowing fully well the consequences and complications involved in undergoing the egg pick up process. In these circumstances, the provision requiring commissioning couple to incur expenses towards insurance coverage for the egg donor (in addition to payment of a compensation for using donor eggs) is unreasonable.


Surrogate mother and requirements

Summary of relevant provisions:

"Surrogate mother" is defined to mean "a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb and fulfils the conditions as provided in sub-clause (b) of clause (iii) of section 4.[18]"

To qualify as a surrogate, it is imperative that the surrogate mother is married, aged between 25 to 35 years of age, and has a child of her own[19].

The Act further states that a woman can be a surrogate only once[20].

Identified issues:

It is a fact that without ART there cannot be gestational surrogacy (where the surrogate is not genetically related to the child). However, the first obvious conflict in the Surrogacy Act is the provision that defines "gestational surrogacy"[21] (a practice whereby a surrogate mother carries a child for the intending couple through implantation of embryo in her womb and the child is not genetically related to the surrogate mother) and the definition of "surrogate mother" which requires the surrogate mother to be genetically related to the intending couple or the intending woman. These provisions are conflicting.

In a country like India where infertility is still considered a social stigma, seeking the assistance of close relatives (not defined in the Bill or Act) to bear a child through surrogacy creates a conflict of interest, and leads to exploitation of the intending couple or intending mother in future by such relative who agrees to be a surrogate. Not every infertile couple will be comfortable discussing their issues with family or friends. Such disclosures could also lead to other problems like domestic violence, shaming, abuse, or name calling. By simply removing the "commercial" component, surrogacy does not become "altruistic". In fact, it is more exploitative than compensatory surrogacy.

The 102nd Report[22] & the Report of the Select Committee on the Surrogacy (Regulation) Bill, 2019[23], both noted the criticism and suggestions received from various stakeholders against permitting only close relatives from providing surrogacy services.

Another seemingly unintended consequence of this Act is the direct contradiction between the definition of "gestational surrogacy" which states that the surrogate mother should not be genetically related to the child; and the definition of "surrogate mother" which requires such a person to be genetically related to the intending couple or intending mother.

Take a case where the intending couple uses their own gametes to create embryos and the surrogate happens to be the sister of the wife. The surrogate is now both genetically related to the child and to the intending couple. The definitions of "gestational surrogacy" and "surrogate mother" are thus self-contradictory and need to be rephrased.

Today, many people choose to postpone marriage or childbearing for various reasons. So even assuming a genetically related close relative "willingly" agrees to be a surrogate, she may not qualify owing to the other conditions imposed by the Act. All these years, the identity of a surrogate has been kept confidential. However, this discretion has now been done away by the Act.

The Act bans commercial surrogacy and permits only altruistic surrogacy. However, the restrictions imposed on surrogates is a perfect opportunity for eligible surrogates to exploit the intending couple by resorting to emotional threats or seeking financial gains. Altruistic model can also promote "forced labour", where the eligible woman is forced to act as surrogate for the intending couple.

Permitting altruistic surrogacy by removing the commercial component alone does not guarantee that a close relative will not be coerced to be a surrogate, thereby causing emotional and physical exploitation. The drafters have failed to identify and understand the ground reality faced by infertile couples, and the cost expended by them in availing ART or surrogacy, to fulfil their dreams of parenthood.

Suggestions:

It is suggested that compensatory surrogacy be allowed, within a clearly defined legal structure and framework. If women from low-income groups are eligible to be surrogates and the compensation they receive helps them provide food, education or other benefits to their family, there is no reason why it should not be permitted[24]. It was further suggested in the 102nd Report than the compensation amount be fixed by authorities, and not be subject matter of bargain between the intending couple and the surrogate mother.

It was further observed[25] that adoption is a benevolent choice, and the Government cannot force adoption in lieu of surrogacy. It may be noted that if the Surrogacy Act were to be implemented in its current form, it does seem like a move to force infertile couples wanting to experience parenthood to choose adoption.

The identity of the surrogate should be always kept confidential. The IVF clinics, or agencies to be appointed under the Act can maintain a comprehensive national level database of surrogates. For this purpose, it is essential to permit commercial surrogacy with a clear legal framework. Disallowing close relatives from acting as surrogates also saves the intending couple from a lot of trauma and hardship.

While it is understandable to have age restrictions to be a surrogate, other restrictions need a relook, which helps widen the pool of eligible candidates who are otherwise fit to be a surrogate. Many women choose to not have children, even if they are otherwise eligible to. Permitting such women to be surrogates will widen the eligibility pool.

While the consent of surrogate mother and authorization from the appropriate authority is mandated for opting for an abortion,[26] the consent of the intending couple finds no place. The position needs a relook, as ultimately, the surrogate bears the child for the intending couple.

The Act could have also done away with the many procedural aspects that make the process even more cumbersome, like seeking an order on parentage and custody of child even before availing a successful pregnancy through surrogacy. In fact, the 102nd Report[27] observed that once a couple has had undergone ART treatment without success, that itself should be sufficient reason to avail surrogacy option. Therefore, the condition necessitating certificate of medical indication necessitating surrogacy from a District Medical Board[28] only causes more hardship to the couple and delays the process.

It is obvious that there can be no surrogacy without availing ART treatment. While so, it would have benefitted if a single comprehensive legislation governing both was enacted. This will harmonize the eligibility criteria in terms of age or medical requirements for infertile couples / single women (they are the only categories of eligible persons presently recognized under the Acts) who resort to fertility treatments. It is pertinent to note that writ petitions are pending before the Hon'ble Delhi High Court, where select provisions of the Acts have been challenged, with the matters listed on 19 November 2022[29]. In these circumstances, it is unclear what the path looks like for couples already undergoing infertility treatment.

The right of procreation and reproductive autonomy is an inalienable right and not the domain of the State to intervene. People opt for surrogacy not out of choice, but out of necessity. However, instead of addressing the issue of exploitation and regulating surrogacy, the Surrogacy Act deters a large section of people facing a roadblock in conceiving naturally from opting for surrogacy, pushing them to remain childless or consider adoption. The ART Act, by imposing time-consuming procedural compliances and added costs, makes the IVF process more expensive for the service seekers. In the end, it is those longing for a child who are compelled to undergo the trauma of having to watch everyone else's dream come true, while theirs is far away from becoming a reality.

The author is an advocate based in Mumbai. Views expressed are personal

  1. https://www.expresshealthcare.in/news/infertility-affects-around-10-per-cent-to-15-per-cent-of-married-couples-in-india/423681/#:~:text=In India, infertility affects around,and desperately look for solutions

  2. Suggested read: Surrogate Motherhood – Ethical or Commercial, report submitted by Centre for Social Research (CSR), available at https://wcd.nic.in/sites/default/files/final report.pdf

  3. https://egazette.nic.in/WriteReadData/2021/232118.pdf

  4. https://egazette.nic.in/WriteReadData/2021/232025.pdf

  5. Sec. 2 (1) (e) of the ART Act

  6. Sec. 2 (1) (r) of Surrogacy Act

  7. Sec. 4 (iii) (c) (II) of Surrogacy Act

  8. Sec. 2 (1) (h) of Surrogacy Act & Sec. 2 (3) of ART Act

  9. Navtej Singh Johar vs. Union of India, (2018) 10 SCC 1

  10. Sec. 2 (1) (s) of Surrogacy Act

  11. Sec. 2 (1) (u) of ART Act

  12. http://164.100.47.5/committee_web/ReportFile/14/100/102_2018_6_15.pdf

  13. https://www.yalemedicine.org/news/fertility-test

  14. Surrogacy Regulation rules 2022

  15. Sec. 22 (1) (b) read with S. 22 (4) Explanation (ii) of the ART Act

  16. https://extendfertility.com/your-fertility-3/egg-quality/

  17. https://timesofindia.indiatimes.com/india/in-7-charts-indias-fertility-rate-drops-to-2-0-according-to-latest-national-family-health-survey/articleshow/91373789.cms

  18. Sec. 2 (1) (zg) of Surrogacy Act

  19. Sec. 4 (iii) (b) of Surrogacy Act

  20. Sec. 4 (iii) (b) (iv) of Surrogacy Act

  21. Explanation to Sec. 4 (ii) (a) of Surrogacy Act

  22. http://164.100.47.5/committee_web/ReportFile/14/100/102_2018_6_15.pdf at Pg. 11

  23. https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/70/137/1_2020_2_17.pdf

  24. http://164.100.47.5/committee_web/ReportFile/14/100/102_2018_6_15.pdf at Pg. 13

  25. http://164.100.47.5/committee_web/ReportFile/14/100/102_2018_6_15.pdf at Pg. 14

  26. Sec. 3(vi) of Surrogacy Act

  27. http://164.100.47.5/committee_web/ReportFile/14/100/102_2018_6_15.pdf at Pg. 36

  28. Sec. 4(iii) (a) of Surrogacy Act

  29. https://www.livelaw.in/news-updates/delhi-high-court-surrogacy-law-single-men-married-women-having-child-200222

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