The Lok Sabha and Rajya Sabha recently passed the Assisted Reproductive Technology (Regulation) Bill, 2021 (ART) and the Surrogacy (Regulation) Bill, 2021 (SRB). Both laws were once a consolidated law which sat on a wall like ‘Humpty Dumpty’ for years.

But in 2016, the nationalist rage against foreigners exploiting Indian women’s wombs led Humpty Dumpty to have a great fall. The SRB was introduced as a standalone law in 2016 leaving the ART to catch up.

The members of three parliamentary committees like the valiant ‘king’s men’ tried to put Humpty Dumpty back together again but this was not an easy task.

Thus sixteen years, eight drafts and three parliamentary committees later, the legislative process concluded last week, amidst Opposition protests and uncertainty over what the MPs were debating. The SRB is not publicly available and MPs had to piece together amendments moved by the Health Minister to a version drawn up by the Select Committee of the Rajya Sabha in 2020 in turn based on a 2019 draft.

Boards and registry

The Bills require the creation of the National and the State ART and the Surrogacy Boards, the National ART and Surrogacy Registry, and appropriate authorities that are common to both laws. The Boards will advise the government on regulation and policy matters and the Registry will maintain a database of the ART treatments undertaken across the country.

An appropriate authority will register the ART banks and clinics and ensure that they abide by the law. Definitions are sought to be aligned so that terms left undefined in one Bill are used as defined in another. Yet inconsistencies remain (for example, the scope of insurance for the surrogate and egg donor, varied punishments for the same offending behaviour).

Both Bills exclude millions of citizens from accessing ARTs and surrogacy. Single men, cohabiting heterosexual couples, same sex couples and LGBTQIA persons cannot access either, despite vast strides in our constitutional jurisprudence on equality and privacy.

The Supreme Court has held that consensual sexual activity between adults of the same sex is no longer a crime, has reiterated the need for inclusion of same sex couples in all walks of life and has confirmed that the liberty to procreate is part of the right to privacy.

Sadly, the exclusionary provisions of the ART and SRB contravene this jurisprudence, are inconsistent with domestic laws like the Transgender Persons (Protection of Rights) Act, 2019 and Juvenile Justice Act, 2015 (under which single and divorced people can adopt) and violate Articles 14 and 21 of the Constitution. This will open up both Bills to constitutional litigation for years to come.

Varied discrepancies

Even when it comes to those who can access ARTs and surrogacy, namely legally married heterosexual couples and some single women, there are discrepancies between the Bills. Under the SRB, only a widow or divorcee between 35 and 45 years of age can commission surrogacy whereas an unmarried, separated, divorced or widowed woman above the age of 21 years can access ARTs.

The Bills do little to protect egg donors and surrogates. Admittedly, the ART offers insurance to an egg donor for 12 months which will cover loss, damage, and complications but does not provide for the donor’s right to counselling, right to withdraw her consent, or compensation for medical expenses, lost time, lost wages, and pain and inconvenience caused by weeks of hormonal treatment and an invasive egg retrieval procedure.

The surrogate is only slightly better off. She now has 36 months of insurance that will cover medical expenses, health issues, specified loss, damage, illness or death but she too will receive no compensation for lost wages, for ten months of reproductive labour in pregnancy, for lost services to her family, and for a likely C-section, the scars of which she will bear for life.

She is entitled to ‘prescribed expenses’ details of which are relegated to the delegated legislation but which the Select Committee (whose recommendations form the basis of the SRB) suggested could include the costs of nutrition and maternity clothing.

Dynamics of supply and demand

Finally, both Bills are oblivious to the dynamics of supply and demand. Foreigners could always avail of ARTs but now the SRB allows PIOs and OCIs to commission surrogacy after getting a letter of recommendation from the Surrogacy Board. We have hung out the ‘open for business’ sign yet again which will lead to greater demand for services.

Except that the ART prohibits the sale or transfer of third-party gametes within and outside India. The ART demands exclusivity so that gametes from one donor can be used only by one commissioning party. A woman can offer no more than seven eggs at a time, that too only once in her lifetime.

Thus, the ART demands that more donors step forward while simultaneously disincentivising supply. After all, sperm and egg donors who cannot even recover medical expenses are unlikely to line up outside the ART Banks.

This will result in a massive shortage of gametes. Similarly, unlike the SRB 2019, the surrogate need not be a close relative of the commissioning parties but simply a ‘willing woman’.

However, any intermediation by agents, brokers, or clinics to locate a surrogate is criminalised, so the commissioning parties have to find an altruistic surrogate on their own, adding to the time and expense involved. Couples will in effect turn to close relatives to undertake surrogacy.

Either way, in the absence of price regulation under the Bills, only wealthy Indian residents, foreigners and PIOs and OCIs will be able to afford ARTs and surrogacy while the ART banks and the clinics laugh all the way to the bank.

Although the transnational surrogacy was banned in 2015, ARTs and domestic commercial surrogacy have continued, and networks of agents and private clinics remain in place. If the ART and SRB are in fact enforced, both sectors will likely shrink substantially with a drop in the quality of services. Since both Bills impose heavy prison sentences and penalties, some clinics will likely leave the ART sector because of the risk of prosecution. More risk taking and less law-abiding clinics will then enter the fray.

Meanwhile, where commissioning parties cannot convince relatives to undertake altruistic egg donation or surrogacy, poor women will take their place. The Bills will likely contribute to the development of an illegal, informal market in egg donation and surrogacy services. Attempts to criminalise medical practices (for example, sex selective abortion) have been hard to enforce in the past.

Hence, the sharp edge of the knife of prohibition will fall on economically vulnerable egg donors and surrogates who occupy the pedestal of altruism with no protection whatsoever against unscrupulous doctors and intermediaries.

Meanwhile, despite calls to expand the public provision of ART to 27 million infertile couples (which the ICMR recommended in 2005), neither Bill entertains the possibility.

The Bills are welcome so that regulation can ensure accountability on the part of the ART clinics and the banks. However the Bills, in their zealousness to curb the commercialisation of the sector, will have uncertain and likely perverse consequences that hurt the very women they intend to protect.

The author is Professor of Law and Social Justice, King’s College London

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