Context: There are several issues with the Assisted Reproductive Technology Bill and these issues need consideration before the passage of the Bill.
Aim of the Bill

• To regulate ART banks and clinics
• Allow safe and ethical practice of ARTs 
• Protect women and children from exploitation
• To supplement the Surrogacy (Regulation) Bill, 2019 (that awaits consideration by the Rajya Sabha)

Associated Concerns with the Bill
1)  Exclusion in the access of ART

• The Bill allows for a married heterosexual couple and a woman above the age of marriage to use ARTs.
• It excludes single men, cohabiting heterosexual couples and LGBTQI individuals and couples from accessing ARTs.
• This violates Article 14 of the Constitution and the right to privacy jurisprudence of Puttaswamy, where the Supreme Court held that “ the liberty of procreation, the choice of a family life” concerned all individuals irrespective of their social status and were aspects of privacy.
• In Navtej Johar case, Justice Chandrachud exhorted the state to take positive steps for equal protection for same-sex couples.
• Unlike the SRB, there is no prohibition on foreign citizens accessing ARTs.
• Foreigners can access ART but not Indian citizens in loving relationships.
• This fails to reflect the true spirit of the Constitution.

2) Consent

• The ART Bill does little to protect the egg donor.
• Harvesting of eggs is an invasive process which, if performed incorrectly, can result in death.
• The Bill requires an egg donor’s written consent but does not provide for her counselling or the ability to withdraw her consent before or during the procedure.
• She receives no compensation or reimbursement of expenses for loss of salary, time and effort.
• Failing to pay for bodily services constitutes unfree labour, which is prohibited by Article 23 of the Constitution.
• The commissioning parties only need to obtain an insurance policy in her name for medical complications or death; no amount or duration is specified.
• The egg donor’s interests are subordinated in a Bill proposed in her name.
• The Bill restricts egg donation to a married woman with a child (at least three years old).

3) Threat of eugenics

• The Bill requires pre-implantation genetic testing.
• If the embryo suffers from “pre-existing, heritable, life-threatening or genetic diseases”, it can be donated for research with the commissioning parties’ permission.
• These disorders need specification or the Bill risks promoting an impermissible programme of eugenics.

4) Overlap with Surrogacy Regulation

• There is considerable overlap between ART and SRB sectors. Yet the Bills do not work in tandem.
• Core ART processes are left undefined; several of these are defined in the SRB.
• Definitions of commissioning “couple”, “infertility”, “ART clinics” and “banks” need to be synchronised between the Bills.
• A single woman cannot commission surrogacy but can access ART.
• The Bill designates surrogacy boards under the SRB to function as advisory bodies for ART, which is desirable.
• However, both Bills set up multiple bodies for registration which will result in duplication or lack of regulation (e.g. surrogacy clinic is not required to report surrogacy to National Registry).
• Also, the same offending behaviours under both Bills are punished differently + punishments under the SRB are greater.
• Offences under the Bill are bailable but not under the SRB.
• Finally, records have to be maintained for 10 years under the Bill but for 25 years under the SRB.
• The same actions taken by a surrogacy clinic and ART clinic  attract varied regulation.

Other concerns

• Children born from ART do not have the right to know their parentage, which is crucial to their best interests and protected under previous drafts.
• There is no distinction between ART banks and ART clinics, given that gamete donation is not compensated, economically viability of ART Banks raises a question.
• In previous drafts, gametes could not be gifted between known friends and relatives if this is not changed, gamete shortage is likely.
• The Bill’s prohibition on the sale, transfer, or use of gametes and embryos is poorly worded and will confuse foreign and domestic parents relying on donated gametes.
• Unusually, the Bill requires all bodies to be bound by the directions of central and state governments in the national interest, friendly relations with foreign states, public order, decency or morality — being broadly phrased, it undermines their independence.

Suggestion

• The Bill to maintain a grievance cell but clinics must instead have ethics committees.
• Mandated counselling services should also be independent of the clinic.
• The poor enforcement of the PCPNDT Act, 1994, demonstrates that enhanced punishments do not secure compliance — lawyers and judges also lack medical expertise.
• Patients already sue fertility clinics in consumer redressal fora, which is preferable to criminal courts.

Road Ahead

• The Bill raises several constitutional, medico-legal, ethical and regulatory concerns, affecting millions and must be thoroughly reviewed before passage.