Explained: India's New Reproductive Laws And How They Would Regulate Medical Procedures

The Assisted Reproductive Technology (Regulation) Bill and the Surrogacy (Regulation) Bill, both recently enacted by the Indian Parliament, will have a significant impact on Indian women's reproductive rights and health. Both of this legislation came into effect on January 25, 2022.

What do the two acts say?

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The goal of the new legislation, according to Health Minister Mansukh Mandaviya, is to "regulate" and "supervise" assisted reproductive technology (ART) clinics and surrogacy, as well as to curb unethical practices such as sex selection and surrogate mother exploitation, by imposing both monetary penalties and jail terms for violations.

The ART Bill was introduced to regulate ART clinics (locations with the necessary facilities and medical practitioners registered with the National Medical Commission to perform ART procedures) and banks (suppliers of sperm, semen, oocytes, or oocyte donors to ART clinics or their patients), as well as to ensure ethical practices in a previously unregulated sphere. The Indian Council of Medical Research (ICMR) issued guidelines on these practices in 2005, but they were not backed by legislation.

On the other hand, The surrogacy bill will only permit "ethical" and "altruistic" surrogacy which will be free of any monetary transaction or payment to surrogates. In an altruistic surrogacy, other than medical bills and insurance during the pregnancy, the surrogate mother receives no monetary compensation. Women's rights campaigners claim that this clause will deprive poor women of a way to monetize their services as surrogates if they are unable to find other work.

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It also seeks to establish a National Surrogacy Board, State Surrogacy Boards, and the appointment of relevant authorities to oversee the surrogacy process and practice.

Offenses and penalties

According to the new legislation, any couple who engages in commercial surrogacy is subject to a penalty of up to five years in prison and a fine of up to 50,000 rupees for the first violation, and up to ten years in prison and a fine of up to 100,000 rupees for any successive offense committed.

The use of sex-selective ART shall be punishable by imprisonment for a period of five to ten years, a fine of INR 10 to 25 lakhs, or both.

The bill also includes provisions for a number of offenses abandoning or exploiting children born through ART, selling, purchasing, racketeering, trading, or importing human embryos or gametes, exploiting commissioning couples, selling an embryo or gamete for research, and using intermediaries to obtain or purchase donors, among other things.

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All of these offenses are punishable by a fine ranging from INR 5 to 10 lakhs in the first occurrence, and a fine ranging from INR 10 to 20 lakhs and imprisonment for a term of eight to twelve years in consecutive instances. Furthermore, no court may take notice of any offense punishable under this Act unless the National Board or the State Board, or an officer appointed by them, files a complaint.

What is the difference?

The Surrogacy (Regulation) Bill is about surrogacy, which is an infertility procedure in which a woman acts as the surrogate mother for another woman. In ART, treatments can be obtained by the commissioning couple directly, with no necessary requirement of a third person/party.

Surrogacy is only permitted for married Indian couples, whereas, married couples, live-in partners, single women, and foreigners are all eligible for ART treatment.

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A 2015 notification prevents foreigners, overseas citizens of India (OSI) or persons of Indian origin (PIO) cardholders, from commissioning surrogacy in India, however, NRIs with Indian citizenship can do so. Foreigners can visit India for ART services through medical tourism. Medical tourism in India means patients from other nations visit India for medical treatment.

Surrogacy facilities in India are believed to number less than 1,000, according to the Health Ministry, whereas ART clinics are anticipated to number less than 1,000.

The long route to the enactment

Both the ART and Surrogacy Bills were originally part of a single piece of legislation that dealt with reproductive medical procedures.

The Surrogacy (Regulation) Bill, 2016 was introduced in the Lok Sabha in response to pressure from women's groups to pass legislation to regulate the unregulated surrogacy industry. However, the Rajya Sabha blocked the bill's passage, relegating it to a Parliamentary Standing Committee for deliberation.

In 2017, the Rajya Sabha issued a one-hundred-second report, which recommended gradual changes to the existing legislation, setting the way for the Surrogacy (Regulation) Bill, 2019.

More physical autonomy for women was pushed for, including the right to participate in commercial surrogacy and/or compensation for the surrogate. On February 26, last year, the Union Cabinet approved the updated legislation, the Surrogacy (Regulation) Bill 2020.

Concerns raised

The surrogacy bill attempts to make altruistic surrogacy legal while prohibiting commercial surrogacy. The surrogate mother gets compensated for her services in commercial surrogacy in addition to reimbursement for her medical expenses. It was alleged that the compensation structure in an unequal society could lead to surrogate mothers and intending parents being exploited.

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Some experts are concerned that the new restrictions may prevent millions of Indian individuals from having access to ART and surrogacy. Such services are not available to single men, cohabiting heterosexual couples, same-sex couples, or LGBTQ people.

This is despite of the Supreme Court's judgement that consensual sexual conduct between adults of the same sex is no longer illegal. The Supreme Court also reaffirmed the importance of same-sex couples being included in all aspects of life and confirmed that the right to procreate is part of their right to privacy.

According to Charu Malik of the Jagori Women's Resource Center in Delhi, the exclusion of unmarried people and the LGBTQ community from the law is "narrow and discriminatory.¡±

Even for heterosexual married couples seeking a child through surrogacy, the new laws impose lengthy and tedious processes, the activist added. "For example, the requirement that couples seeking surrogacy be married for at least five years is an attempt to limit their ability to start a family earlier if they so desire," Malik told The Diplomat.

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