'Restrictions On Egg Donations Unreasonable' : Another Plea By IVF Specialists Challenging ART Act; Supreme Court Issues Notice

Apart from this, the petitioners have also called into question the soundness of the decision to subject medical practitioners to the rigours of the Indian Penal Code, 1860 and to make the offence under Section 33 of the ART Act cognizable. This, they have strenuously argued, would have a ‘chilling effect’ on IVF practitioners across the country, dissuading them from discharging their professional duties due to the fear of prosecution. In this connection, the petitioners have relied on the observations made by Justice D.Y. Chandrachud, as he was then, in X v. Principal Secretary, Health and Family Welfare Department, Government of National Capital Territory of Delhi, 2022 LiveLaw (SC) 809, regarding the cascading effects of the fear of prosecution among medical practitioners. The petitioners submitted that the collective effect of these issues was that IVF cycles through donor eggs have been brought to a complete standstill.

The bench led by Justice Rastogi issued notice on this writ petition deciding to hear all of them together on January 24. The bench also instructed the centre to make a representation to the National Assisted Reproductive Technology and Surrogacy Board constituted in December 2022 to consider the prayers in the petition and file a suitable response. Additional Solicitor-General, Aishwarya Bhati appeared on behalf of the central government, while the petitioners were represented by Advocate Mohini Priya.

Priya told LiveLaw, “This petition specifically deals with the rights of egg donors. IVF through third-party donor eggs constitutes 40 per cent of all IVF procedures and the Act completely overlooks their rights to compensation for the time and effort of going through the surgical procedure of going through egg retrieval and other expenses like food, travel, and accommodation, which is unjust and unreasonable leading to an extreme shortage of egg donors in the country. While surrogacy consists of three to five per cent of assisted reproduction, IVF makes up 97 to 98 per cent of it. Therefore, the number of people affected by it is very large. The provision of allowing only one oocyte donation in the lifetime of a donor and other ancillary provisions are not just unscientific and unreasonable but against international best practices. These issues have not been dealt with, in the surrogacy PIL.”

Case Title

Aniruddha Narayan Malpani v. Union of India & Ors. | W.P. (Civil) No. 1129 of 2022

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