Sidhu Moosewala’s Parents Under Scanner for IVF Baby: What Does India’s Law Say?

The Centre warned of IVF law violation risks following Sidhu Moosewala's brother's birth.

(photo: FIT/Chetan Bakhuni)

On 17 March, Balkaur Singh, father of late Punjabi singer Shubhdeep Singh Sidhu Moosewala, took to social media to announce the birth of his second son.

However, just a couple of days later, on 19 March, he accused the government of "pressuring him to prove the legitimacy of his child."

This, after the Ministry of Health and Family Welfare sent a notice to the Punjab government, seeking a report on the IVF treatment that the couple opted for and if they violated the rules laid down in the Assisted Reproductive Technology (Regulation) Act, 2021.

Why has the government intervened in this case? What does the law say? What will happen to the child now? FIT explains.

Why Has the Government Intervened?

The child's birth came under the scanner of the state and central health authorities after it was revealed that the couple had the child via IVF (in vitro fertilisation).

After the Centre raised the issue with the Punjab government, the state Department of Health and Family Welfare issued a show-cause notice to the state's principal secretary of health, Ajoy Sharma, seeking a response.

The letter stated,

"You proceeded to act in the matter without bringing this issue to the notice of your Minister-in-charge and Hon'ble Chief Minister and without taking any orders from them seeking a response on the details of the IVF and further course of action...This is a serious lapse on your part."

The letter goes on to ask him to Show Cause within two weeks as to why disciplinary action shouldn't be taken against him.

Why have the central and state governments gotten involved in this case?

The ART Act in India oversees the activities and services of all fertility centres, and outlines the parameters within which they can operate.

According to the Act, only women between the ages of 21 to 50 and men between the ages of 21 to 55 can undergo IVF treatment.

Considering the mother, Charan Kaur, is 58 years old, and the father, Balkaur Singh, is 60 years old, if the couple did have the baby via IVF, they would be in violation of the age limit outlined in the law.

Moreover, considering all doctors and technicians treating infertility in India have to adhere to this law, the question arises, how was the procedure allowed to this couple?

Why Is There an Age Limit for IVF Treatment?

Advancements in IVF technology have made it possible for women to conceive and birth children long after their 'biological clock' stops ticking.

"It is important to understand that a woman's uterus can still conceive a child at the age of 50-55, and carry the pregnancy to term."

Dr Prachi Benara, Senior Consultant, Birla Fertility & IVF, Gurugram

However, IVF, too, has its limitations.

Dr Benara says, "If a woman becomes pregnant after the age of 50, the risk of complications and health-related issues is very high."

Furthermore, experts highlight that one must also consider that as the child grows older, the parents would also grow older and risk depriving their children of parental care at a young age, which raises ethical questions.

Speaking to FIT, Dr Sonia Malik, Chief Clinical Mentor, Nova IVI Fertility, explains that it is important to also note the risks associated with age-related illnesses that the parents may develop, which can make it child-rearing difficult.

"It is often observed that upon reaching the age of 50, various health issues start to arise, such as diabetes, high blood pressure, or any other illness. Due to this reason, it becomes challenging for such couples to nurture and care for a child."

Dr Sonia Malik, Chief Clinical Mentor, Nova IVF Fertility

The age limit for IVF treatment was put in place considering all these factors.

Speaking of the child born through IVF treatment to Moosewala's parents, Dr Malik says,

"Now in this case, it is possible that the woman may have been healthy and didn't have any major complications, but it's still a huge risk and the defined age limit is crucial to ensure that the mother's health isn't compromised during pregnancy and delivery."

What Happens if the ART Act Is Violated?

The ART Act details the action that can be taken against any clinic or patient that fails to comply with the provisions in the Act for IVF treatment. This could be a hefty fine or even imprisonment.

Speaking to FIT, Dhvani Mehta, Co-founder, Vidhi Centre for Legal Policy explains this saying,

"There's a minimum fine of 5 lakhs that may extend to a fine of 10 lakhs for the first contravention. For subsequent contraventions, it says the punishment is a minimum of 3 years imprisonment which may extend to 8 years."

Adding to this, Dr Prachi Benara says, "Srict actions can be taken against the director, consultants, embryologists, and patients of the fertility centre that fails to adhere to the rules and regulations outlined in the ART Act."

However, the Act also mentions that a court will take cognisance of an offence only if there is a complaint by a national or state board.

Dhvani Mehta explains, "This means that an individual person can't just file a complaint against someone (in this case, Sidhu Moosewala's parents). The complaint has to be made by one of these authorities mentioned in subsection 1."

If the parents are found guilty of violating the age limit, what happens to the child born through IVF treatment?

There is no clear directive in the law regarding the custody of the child born through IVF in case of a violation.

"In such cases, the authority over the child is usually given to the couple itself," says Dr Prachi Benara.

Dhvani Mehta, on the other hand says, "I don't think the Act contains provisions regarding what happens to the child that is born through violations of this Act. In case the parents do end up being sentenced to jail time, the child's guardianship would be dealt with the same way it is in any other case where both parents are sent to jail."

Have there been past instances where clinics, and more importantly, couples have been convicted for violating the ART Act?

It's difficult to say because the Act has only been in force since January 2022, and data on it wasn't recorded in the latest NCRB (National Crime Records Bureau) report (2022).