LS Passes ART Bill: Provisions for Donors, Couples, & How It's Against LGBTQIA+

In 2008, the Indian Council for Medical Research (ICMR) valued the reproductive segment of the medical tourism market at more than $450 million. It predicted that the market will rise to six billion dollars a year, within a decade.

Thirteen years later, India still does not have a single-umbrella law that covers and has provisions for Assisted Reproductive Technology (ART) – which includes medical practices like egg or sperm donation, in-vitro fertilisation (IVF), intrauterine insemination (IUI), and gestational surrogacy, among others.

On Wednesday, 1 December, the Lok Sabha passed the Assisted Reproductive Technology (Regulation) Bill, approved by the Union Cabinet in 2020. The bill is expected to be passed in the Rajya Sabha as well, during the ongoing Winter Session.

However, while the need for such a bill has been underlined by parties across lines, the Opposition has sought the inclusion of LGBTQIA+ community into the framing of the law, ahead of giving it a complete green signal.

What Does the Bill State?

The bill aims to provide for the “safe and ethical practice of assisted reproductive technology services." It contains provisions to protect the rights of donors, the couple who are seeking to have a child through ART, and children born out of it. Here's what it entails.

Registration of Clinics/Banks:

First and foremost, it seeks to establish a national registry of clinics and banks that provide such services.

The registration will be granted based on the position of the clinics to provide and maintain certain standards – including manpower, infrastructure, and diagnostic facilities.

The licence will be valid for five years, and would have to be renewed thereafter.

Establishment of Boards:

The bill seeks to establish both national and state boards for regulation of ART services.

These boards will look into the implementation of the law, as well as the functioning of the clinics.

Conditions for Offering ART Services:

The bill seeks to make written consent mandatory for all parties involved in ART services mandatory – including donors and commissioning couple.

The couple must provide insurance coverage for the donor, the bill suggests.

The clinics shall not offer to provide either the couple or a woman seeking a child of pre-determined sex.

Conditions for Donation and Commissioning

As per the bill, only the following is allowed, in terms of donation:

• Collect semen from males between 21 to 55 years of age

• Collect oocytes (a cell in the ovary) from females between 23-55 years of age

• A oocyte donor shall be a married woman, who has at least one child of her own

• She can donate only once in her life, and not more than seven oocyte shall be retrieved from her

For Commissioning:

For the ART services to be applied, the woman should be above the legal age of marriage (18 years) and below the age of 55 and a man should be above the age of 21 and below 55.

However, and most importantly, such services are available only to a commissioning couple or a woman.

What Are the Penalties?

Offences under the bill are:

• Abandoning or exploiting children born through ART

• Selling, purchasing, trading, or importing human embryos or gametes

• Using intermediates to obtain donors

• Exploiting commissioning couple, woman, or donor in any form

• Transferring human embryo into a male or animal

These offences are punishable with fines between Rs 5 lakh and 10 lakh for first-time contravention.

Subsequent contraventions will lead to imprisonment between eight and 10 years, and a fine up to 20 lakh.

Why the Bill Is Against LGBTQIA+

To put it in a single sentence, the bill excludes LGBTQIA+ community, live-in couples, and single men from accessing ART services.

Congress MP from Tamil Nadu Karti Chidambaram called it "discriminatory", stating that it was violative of Article 14 of the Constitution (equality before law.)

"There are many people who are unable to have children and who find the benefit from ART. It is essential that this technology is available to all and is regulated and ensured best medical practices are followed," he said, reported LiveLaw.

Maharashtra NCP MP Supriya Sule, too, pointed out that besides heterosexual couples, there is a cross-section of people in this country who want to have a child – especially the LGBTQ community.

Sule also added that according to the adoption rules of 2017, single men cannot adopt a girl.

“This is something we, as a society, need to introspect… I think we should not deprive any human being who deserves or wants to have a child. Why do we not put all the bright minds together… and see how we can make sure that everybody can make use of all legislations we make,” Sule told the Lok Sabha on Wednesday.

According to FirstPost, RSP MP NK Premachandran said, “Surrogacy Bill is pending in the Upper House, that has not been passed. How can this House pass a law depending upon another law… My point is that this bill cannot be taken into consideration, this bill cannot be discussed.”

Health Minister Mansukh Mandaviya clarified that both the Surrogacy Bill and the ART Bill will be tabled in the Rajya Sabha – and the latter will be passed only after the former.