Scope of Reproductive Rights : Daily Current Affairs

Date: 29/10/2022

Relevance: GS-2: Issues Relating to Development and Management of Social Sector/Services relating to Health; Government Policies and Interventions for Development in various sectors and Issues arising out of their Design and Implementation.

Key Phrases: Assisted Reproductive Technology, In Vitro Fertilisation, Gender Disparity gamete, Equitable Access, Reproductive Rights, Expensive Privatised Medical Industry, Genetic Parenthood, Legal, Ethical and Social Dilemmas, Reproductive Autonomy, Oocyte Donors, Shadow Market, Commercial Surrogacy, Altruistic Surrogacy, Parliamentary Standing Committee, Non-traditional Families, National Assisted Reproductive Technology and Surrogacy Board.

Context:

Recently, a petition was filed in the Supreme Court and Delhi High Court to challenge the validity of the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021 and the accompanying Rules with the two legislations.

Key Highlights:

A Parliamentary Standing Committee in 2017 recommended compensated surrogacy and stated that mandating altruistic surrogacy was based on moralistic and paternalistic assumptions, and expecting free reproductive labour from women was “grossly unfair and arbitrary”.
A Parliamentary Select Committee recommended that commercial surrogacy was unethical and antithetical to the “noble” and “selfless” instinct of motherhood.

Surrogacy (Regulation) Act 2021

Terminology:
- Altruistic surrogacy:
  - It means the surrogacy in which there are no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and insurance coverage given to the surrogate mother.
- Commercial surrogacy:
  - It means commercialisation of surrogacy services or procedures or its component services or component procedures.
  - It includes selling or buying of human embryo or trading in the sale or purchase of human embryos or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative.
- Intending couple:
  - It means a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy.
- Intending woman:
  - It means an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy.
- Surrogacy:
  - It means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.
- Surrogate mother:
  - It means a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb
Provision:
- National Assisted Reproductive Technology and surrogacy Board:
  - The Central Government shall, by notification, constitute to exercise the powers and perform the functions.
    - Chairperson- The Minister in-charge of the Ministry of Health and Family Welfare (ex officio).
    - Vice-Chairperson- Secretary of Ministry of Health and Family Welfare (ex officio).
  - Board shall meet at least once in six months.
- Appropriate Authority:
  - The Central Government shall, by notification, appoint appropriate authority for each of the Union territories.
  - The State Government shall, by notification, appoint appropriate authority for the State.
  - Functions of appropriate authority:
    - To grant, suspend or cancel registration of a surrogacy clinic.
    - To enforce the standards to be fulfilled by the surrogacy clinics.

Issues related to Act:

Discriminatory:
- It is discriminatory and violative of reproductive autonomy and choice by denying access to ARTs to single persons and people in live-in and same-sex relationships.
Ban on Commercial Surrogacy:
- It is unreasonable and deprives surrogate mothers of reproductive agency.
Availability of Donor Oocytes:
- A limited number of oocytes can be retrieved and women can be oocyte donors only once.
Shadow Market of Gametes:
- Shortage of oocytes due to regulatory pressures may lead to a shadow market of gametes.
Privacy Concern:
- The ART Act also requires the oocyte donor to share their Aadhaar number, which threatens the donors’ privacy.

Assisted Reproductive Technologies (Regulation) Act 2021

Provision:
- Assisted Reproductive Technology:
  - It means all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the reproductive system of a woman.
- Assisted Reproductive Technology Bank:
  - It means an organization which shall be responsible for collection of gametes, storage of gametes and embryos and supply of gametes to the assisted reproductive technology clinics or their patients.
- Commissioning Couple:
  - It means an infertile married couple who approach an assisted reproductive technology clinic or assisted reproductive technology bank for obtaining the services.
- Infertility:
  - It means the inability to conceive after one year of unprotected sex or other proven medical condition preventing a couple from conception.
- Written Informed Consent:
  - The clinic shall not perform any treatment or procedure without the written informed consent of all the parties seeking assisted reproductive technology.

Way Forward:

In the question of whether commercial surrogacy should be allowed or not, persons acting as surrogates should have their voices reflected in deciding the said issue.
Assess the acts through the framework of reproductive rights and justice.
Recent constitutional jurisprudence on the right to privacy, reproductive autonomy, and recognition of non-traditional families should be extended to these acts.

Conclusion:

The promotion of reproductive rights should be the fundamental basis for government and community-sponsored policies and programs.

Source: Indian Express

Mains Question:

Q. What are the issues with respect to the Surrogacy (Regulation) Act 2021? How do these issues affect the reproductive rights of a woman? Critically Analyse. (250 Words)