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Proposed ART Law in India - an analysis

The Fertility Treatment Market

Infertility treatment has come of age in India. Since the country first witnessed its surrogate baby on June 23, 1994 in Chennai, it has been over 20 years during which Assisted Reproductive Technology (ART) quietly grew and developed into whopping millions of dollars industry in India. But IVF market, which is estimated to grow by ~20% to ~260,000 cycles by 2020 in India as per the latest Ernst &Young report (July 2015), is “unregulated,”  victim of lax laws, and has  sloppy guidelines.

The Draft Assisted Reproduction Bill

Recently, the revised draft of the Assisted Reproductive Technology, (Regulation) Bill 2014 has been uploaded on the Ministry of Health and Family Welfare website for recommendations from all its stakeholders by November 15, 2015. The new draft has already raised questions on barring foreign nationals from procuring surrogacy in India. It has also opened up the intense debate over the modern reproduction techniques and their social and ethical repercussions.

While the draft is silent over single men and women obtaining parenthood through surrogacy, it has strongly tried to take care of the rights of surrogate mothers and children born through surrogacy. It proposes stricter regulations on the ART Banks and fertility clinics in the country. The use of brokers or middlemen to obtain gamete donors or surrogates shall be punishable offense that may lead to three years of imprisonment.

Instances like, gay or unmarried couples procuring surrogacy in India in spite of the ICMR guidelines, which permits only married couples of at least two year for bearing children through IVF or surrogacy, would be forbidden, if the ART (Regulation), 2014 Bill draft is passed as a law in the Indian parliament.

Lack of Regulations in ART

At present about 2000 fertility clinics are said to be thriving across the country offering ART treatments such as artificial insemination, In-Vitro Fertilization (IVF), and surrogacy. The couples around the world come to India for IVF and surrogacy due to its cheap medical services, qualified doctors, easily available surrogate mothers, and permissible commercial surrogacy.

But the millions of dollar industry functions solely on ICMR guidelines which are not mandatory to abide. There is no provision of punishable acts in case of misuse of ART or any medical accident. Over the time, the industry has given way to much misconduct which results in unauthorized fertility centers, exploitation of surrogate mothers, spawning of middlemen, and cases of unclaimed babies born through ART.

Our view on the draft art bill, 2015

There is absolutely no denying that fact the Assisted Reproductive Technology (ART) entities in India badly need regulation. While lack of govt hassles and red tapism have helped bringing in significant investment and enabled establishment of hundreds of highly efficient IVF centres across the country. On the other-hand, however, absence of regulations have helped many unscruplous clinics and agents to fish in troubled water. The need of the hour thus, is to have a fair ART procedure that takes a humanistic approach to ART and seeks to avoid the negative elements in the game.

The bill’s prohibition of surrogacy for foreign couples as well as silence on single and same sex couples does not look progressive enough, as legitimate people would suffer for that. Blanket ban on particular aspect of services or community is not just a loss of economic opportunity, but a denial of opportunity to legitimate recipients.

The Medical Council of India should actively involve itself in the functioning of IVF and Surrogacy clinics and mandate them to submit regular reports on procedures conducted, success rate achieved and so on on the lines of  Society for Assisted Reproduction (SART), USA and Huma Embryo and Embryo Authority (HFEA) in UK. This can be done either directly or through a designated body for the same.