Assisted Reproductive Technology Regulation Bill addresses regulation lacunae in fertility industry, but its non-inclusiveness is troubling

Gita Aravamudan

When it comes to women and their wombs, legislators don't seem to understand the necessity of having well thought out, supportive €" and timely €" laws. Maybe the gender imbalance in the two Houses of Parliament is responsible for this lack of empathy. So whether in the case of abortion or fertility treatment, there is no sense of urgency in formulating and rolling out the laws. As a result, more often than not, the law is not in sync with technology which is advancing by leaps and bounds. This kind of delay in regulating technology can lead to a backlash, and the very medical interventions which are supposed to heal can harm.

Take Assisted Reproductive Technology (ART), for instance, which has been around for decades now. The very first child born through in vitro fertilisation (IVF) in India was delivered in Kolkata in the early '80s. Since then, fertility treatment using ART has undergone a sea change. Today, babies can be created outside the womb using donor gametes and gestated in the womb of unrelated women €" again a development that has been around for nearly two decades. It has helped women born without wombs to have their own genetic babies. It has helped infertile couples, same sex couples and single parents to make babies who are genetically related to them.

The booming ART industry is expected to have a compounded annual growth rate of 10 percent. Fertility clinics with no proper equipment or qualified doctors have mushroomed all over the country and exist cheek by jowl with state-of-the-art ones. And there are no regulatory laws.  All we have are non-enforceable guidelines issued by the Indian Council for Medical Research (ICMR) in 2005. Although these guidelines are pretty comprehensive, they are also ineffective €" which accounts for the unregulated growth.

But is there hope in sight?  The Assisted Reproductive Technology (ART) Regulation Bill 2020, which was first proposed in 2008 and has been amended several times over the years, has finally been approved by the Union Cabinet this month. Specialists worked for years on this Bill, which hadn't even been tabled in the House until now. While the Bill addresses many of the problems of regulation which the fertility industry faces, it has been amended in ways that make it non-inclusive.

The history

The final draft of the Bill was ready in 2017.  But before it could be taken up, the highly controversial and flawed Surrogacy Bill, hastily put together in 2016, was passed by the Lok Sabha in 2018. Experts pointed out that surrogacy was just a part of the fertility treatment process and that without the ART Bill in place, the Surrogacy Bill could cause more harm than good. Fortunately, when it was introduced for approval in the Rajya Sabha, many members said that the concerns raised by experts should be addressed a panel before approving the Bill. The Surrogacy Bill has now been tweaked and both Bills are ready. When they will be actually passed is anyone's guess as there are still contentious issues to be ironed out.

The provisions

The ART Bill, when passed, will address some important concerns regarding regulation.  All clinics will have to be properly registered. A National Board will lay down a code of conduct and mandate minimum standards for laboratory and diagnostic equipment. It will set up an ART Bank to supply gamete donors and surrogate mothers to the clinics or patients. It will also make pre-implantation genetic testing of the embryo mandatory. All states and Union Territories will have to form State Boards and State Authorities within three months of the notification of the proposed legislation; the State Board will be mandated to follow the policies and plans laid by the National Board for Clinics and Banks in the state. A national registry and registration authority will maintain a database to assist the National Board.

Positive developments

It was a pleasant surprise when, in the last couple of weeks, our legislators came up with not one but three womb-centric Bills: Along with the two Bills relating to fertility treatment, the Union Cabinet also approved amendments to the Medical Termination of Pregnancy (MTP) Act, 1971, which will help strengthen women's reproductive rights and prevent unsafe abortions. The MTP (Amendment) Bill, 2020, proposes to extend the upper limit for abortions from 20 weeks to 24 weeks. Experts in the field have hailed it as a progressive step which brings it up to date with medical advancements.  It is also welcomed as a move which will strengthen women's reproductive rights and hopefully reduce the number of unsafe abortions.

But issues remain

The Bills are still flawed and have some way to go before they become properly inclusive.  Even the newly amended MTP Act has been criticised for not giving all women their reproductive rights. Some of the provisions of the ART Bill and the Surrogacy Bill have also been challenged. For instance, allowing ART treatment for only infertile couples and putting an age limit on eligible couples eliminates whole groups of people who may most need the treatment. Ironically the ICMR Guidelines were much more inclusive. So why were they ignored?

The panel re-examining the Surrogacy Bill backed the provision that only altruistic surrogacy should be allowed and not commercial surrogacy because "the sublime and divine instinct of motherhood could not be allowed to be turned into mechanical paid service of pro-creation devoid of divine warmth and affection".

Women activists have questioned this romantic perception of pregnancy and surrogacy.  Surrogacy, they say, is a job like any other and as long as a woman is not forced into becoming a surrogate, she has every right to demand compensation for the job she is doing. Maybe calling it compensated surrogacy might make it more acceptable.

And the central problem of course, remains unaddressed: Namely, even though women are the main stakeholders in matters related to their wombs, male legislators do not include them in the decision-making process.

Gita Aravamudan is an award-winning author and journalist from Bengaluru whose books include Disappearing Daughters: The Tragedy of Female Foeticide and Baby Makers: The Story Of Indian Surrogacy, among others.

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