ARTICLE
15 March 2024

Traversing The Ethical And Legal Maze: Analysing The Art Regulations' Constitutionality

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Khurana and Khurana

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The Assisted Reproductive Technology (Regulation) Act of 2021 specifies eligibility requirements for both commissioning parties and donors.
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INTRODUCTION

The Assisted Reproductive Technology (Regulation) Act of 2021 specifies eligibility requirements for both commissioning parties and donors. Married couples or women who meet the following criteria can seek ART services: (i) the woman must be between 21 and 50 years of age, and (ii) the man must be between 21 and 55 years of age.1 Additionally, married couples must be diagnosed with infertility, defined as the inability to conceive after one year of unprotected intercourse or due to any other medically proven condition that hinders conception. For donors, ART banks are authorized to obtain semen from males between 21 and 55 years of age and eggs from females between 23 and 35 years of age. A woman may donate eggs only once in her lifetime, with a maximum of seven eggs retrieved during a single procedure. ART banks are prohibited from providing gametes from a single donor to more than one commissioning party (i.e., couples or single women seeking ART services).Moreover, the rights of the child born through assisted reproduction are fully protected by deeming them to be the legal biological child of the commissioning couple and will be entitled to the rights and privileges available to a natural child of the commissioning couple. A donor will not have any parental rights over the child.2 Though the Act has tried to provide a complete mechanism for facilitating the ART services and has provided stricter criteria for availing these services, the Act still has many lacunas within it, which has been described in detail in the next segment of the paper.

CONSTITUTIONALITY OF THE ACT AND THE LACUNAS THEREIN

The validity of the Act has been contested on various grounds, including its perceived violation of Article 14 of the Indian Constitution, which guarantees equal protection under the law and prohibits arbitrary legislation that lacks a just, fair, and reasonable basis for unequal treatment.3 Consequently, the legislature cannot deny a specific group of people access to ART Bank and Clinic services without providing adequate legal justification. However, the ART Act falls short in this regard, as it fails to treat all individuals equally and arbitrarily denies certain groups the benefits of the Act. Provision 2(1)(e) of the Assisted Reproductive Technology (Regulation) Act of 2021 defines the term "commissioning couple" as "an infertile married couple who seek the services authorized by said bank or clinic from an ART clinic or ART bank."4 Furthermore, the act includes a gender specific term, i.e. "woman"5 to whom the assisted reproductive technology services would be applicable. The term 'married couple' and 'woman' excludes the live-in couples, LGBTQ+ communities as well as single male parents from availing the facilities of ART provided by ART clinics and banks. These terms made it appear like the paternalistic and heteronormative values have driven the ART Act.6 The exclusion is prejudiced and violates the individuals' constitutional rights as well as the spirit of equality.

The ART Act also goes against several landmark precedents handed down by the Apex Court in this regard. In a landmark judgment of the Hon'ble Supreme Court of India in the case of Navtej Singh Johar & Ors v. Union of India, the Apex Court has held Section 377 of the Indian Penal Code, 1860 to be unconstitutional and created a path for legal recognition of homosexuality in India.7 The Act, at the core of it, goes against the decision of the Supreme Court in this case, and continues to discriminate against same-sex couples in their right to raise a family. During the discussion of the ART Bill in Lok Sabha, members highlighted that "the bill allows only married couples and single women to avail the ART services and includes LGBTQ+ and single men from the scope of ART services, which is violative of Article 14 of the Constitution". To this, it was clarified by the Minister of Health and Family Welfare clarified that "single women, inclusive of LGBTQ+ communities will have access to ART services; however, single men will not be able to avail such services as they are not allowed to adopt a child as per the current adoption rules".8

Moreover, in several other judgments of the Hon'ble Apex Court, it has recognised the legality of live-in relationships. In Tulsa & Ors v. Durghatiya, the Apex Court has stated that there is a presumption of marriage in the case of couples living together for a long period of time. 9 On the similar note, in the case of S.P.S. Balasubramanyam v. Suruttayan the Court held that the children born out of a live-in relationship are considered to be equivalent to biological children of a married couple. 10 Given the aforementioned cases, it is evident that the exclusion of individuals from the LGBTQ+ community, live-in couples, and single or divorced men from accessing ART services under the Act is unconstitutional, arbitrary, prejudiced, and contrary to the principles and spirit of existing laws. Not only is this Act unlawful and unconstitutional, but the legislature has also failed to provide a justifiable or reasonable explanation for introducing such an outdated and blatantly discriminatory law. Whenever the issue was raised with the legislature, the only response offered was that the concept of live-in couples, LGBTQ+ individuals, and single male parents having children through assisted reproductive technology is incompatible with our values.11

The Standing Committee noted in its report that in the event of their separation, there would be issues with parenthood and the welfare of the child born through ART services, making it inappropriate to permit same-sex and live-in couples to use the ART Act's facilities. The Standing Committee's reasoning defies accepted norms regarding what qualifies as a child's welfare. It imposes its own beliefs that are out of step with the law's reform-oriented mandate and the demands of the time.

The Second concern which has come up with the Act is that the parties' right to privacy may be violated by the provisions on data sharing. The Act creates a National Registry, which will act as a single, national database for all banks and clinics that use assisted reproductive technology (ART). These entities are mandated by the Act to convey specific information to the Registry. The Act necessitates that ART clinics and banks furnish the National Registry with sensitive personal information pertaining to commissioning parties and donors. This includes intricate details regarding their identities, the procedural interventions they undergo, and the subsequent outcomes, potentially impinging upon their rights to privacy.

Moreover, with the establishment of the Registry, ART clinics and banks are compelled to divulge particular information encompassing updates on the progress of commissioning parties, as well as statistics on the screening, maintenance, and provision of donors. The National Registry is further obligated to disseminate this data to the National Board for research and policy formulation objectives. The requirement for ART clinics and banks to disclose personal information of donors and commissioning parties to the National Registry raises concerns about potential infringements upon the privacy rights of individuals seeking ART services. This data-sharing provision within the Act clearly contravenes the Right to Privacy as upheld by the Hon'ble Supreme Court in the landmark case of Justice K. S. Puttaswamy and Ors. v. Union of India and Ors. The Honorable Apex Court has established that this right may be restricted only if there is a justifiable public purpose and that purpose are proportionate to the privacy infringement. 12

However, the Act fails to provide a clear justification for the collection and sharing of this personal information, making it questionable under the Right to Privacy. Moreover, the Act specifies that ART banks must collect certain information of the donor including name, address and Aadhar number. This may violate the Supreme Court's Justice K.S. Puttaswamy v. Union of India (Puttaswamy-II) judgement.13 In this case, the Hon'ble Supreme Court has held that the Aadhar card/number may only be made mandatory for expenditure on a subsidy, benefit or service incurred from the Consolidated Fund of India, however the Act does not provide for any such benefit or service, thus violating the privacy of individuals availing the benefits of this Act.

Footnotes

1 The Assisted Reproductive Technology (Regulation) Act, 2021 § 21(g).

2 Supra note 3, § 31.

3 The Constitution of India, Art. 14.

4 The Assisted Reproductive Technology (Regulation) Act, 2021 § 2(1)(e).

5 The Assisted Reproductive Technology (Regulation) Act, 2021 § 2(1)(u).

6 Gauri Anand, Assisted Reproductive Technology (Regulation) Bill, 2021: An Explainer, THE LEAFLET (December 8, 2021), https://theleaflet.in/examining-the-assisted-reproductive-technology-regulation-bill-2021/.

7 AIR 2018 SC 4321

8 The Adoption Regulations, 2017, Ministry of Women and Child Development, January 4, 2017.

9 2008 (4) SCC 520

10 1994 SCC (1) 460

11 Aniruddh Saraswat and Oindrala Mondal, 'The Assisted Reproductive Technology (Regulation) Act, 2021: A Step Forward, Two Steps Back?' (THE CONTEMPORARY LAW FORUM, 21 April 2022) https://tclf.in/2022/04/21/the-assisted-reproductive-technology-regulation-act-2021-a-step-forward-two-steps-back (Last visited 15th November, 2023)

12 AIR 2017 SC 4161

13 Writ Petition (Civil) 494 of 2012.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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