The Kerala High Court recently challenged the upper age limit for assisted reproductive technology (ART) under the Assisted Reproductive Technology (Regulation) Act, 2021, claiming it infringes on a person’s fundamental right to establish a family. This Act is now in the spotlight, with its various provisions and potential implications under scrutiny.
Understanding the Concerns
The court addressed these concerns through numerous petitions calling into question the legitimacy of the age limit of 50 years for women and 55 years for men wanting to utilise ART. Petitioners argue that this restriction is unreasonable, arbitrary, and in violation of their acknowledged right to reproduction. They are seeking to declare it unconstitutional.
In response, the High Court has urged the National Assisted Reproductive Technology and Surrogacy Board to consider revising the aforementioned age limit. Moreover, medical practitioners questioned the provision where they fall under the jurisdiction of the Indian Penal Code, resulting in fears of prosecution and discouragement from performing their professional duties.
Crucial Features of the ART (Regulation) Act, 2021
The ART Act 2021 outlines legal frameworks governing surrogacy, supervised by the National Assisted Reproductive Technology and Surrogacy Board. The Act aims to regulate ART clinics and banks, prevent misuse, and ensure safe and ethical practices.
ART services encompass techniques attempting to achieve pregnancy by manipulating sperm or oocyte (immature egg cell) outside the human body and transferring the gamete or embryo into a woman’s reproductive system. This includes gamete donation, In Vitro Fertilization (IVF), and gestational surrogacy.
Banks can seek semen from males aged between 21 and 55 years, and eggs from females aged 23-35. Women can donate eggs once in her lifetime, not exceeding seven per donation. A single donor’s gamete must not be supplied to more than one commissioning party.
Consent from both the commissioning parties and the donor is mandatory. Insurance coverage in favour of the egg donor for potential loss, damage or death is obligatory.
A child born through ART is recognized as the biological child of the commissioning couple, giving them entitlement to rights and privileges of a natural child. The donor does not have any parental rights over such a child.
Identifying Shortcomings
The Act has been criticised for exclusion of certain sections of society such as unmarried men, divorced men, widowed men, unmarried heterosexual couples, trans persons and homosexual couples from availing ART services. Similar exclusions are present in the Surrogacy Act as well.
This law significantly reduces reproductive choices as it only caters to infertile couples, defined as those unable to conceive after one year of unprotected coitus.
Another issue lies in unregulated prices for services which can potentially be exploited.
Looking at Solutions
Independent organizations should provide mandatory counselling, not dependent on clinic ethics committees. All directions issued in the national interest, including friendly relations with foreign states, public order, decency, and morality, should bind all ART bodies. Thorough reviews addressing constitutional, medico-legal, ethical, and regulatory concerns must be done before implementing widespread changes.
