TITLE- ASSISTED REPRODUCTIVE TECHNOLOGY BILL, 2010:A CRITICAL STUDY

MRS. PYALI CHATTERJEE

ASSISTANT PROFESSOR
DISHA LAW COLLEGE

ADRESS--

C/O.VIJAY MARDEKAR
NEW SHANTI NAGAR, NEAR DISHA COLLEGE ROAD,
STREET NO.5, RAIPUR, 492101 (C.G)
pyali.chatterjee@gmail.com
7489371981

BIOGRAPHY OF AUTHOR
I am Pyali Chatterjee, I have completed my schooling from Govt. Higher Secondary School,
Itanagar, Arunachal Pradesh. After that I have completed my BA.LLb from Department of Law,
Calcutta University in the year 2009. Then I have completed my LLM (specialization in Contract
law) from Mahatma Gandhi University, Kottayam, and Kerala. And MPhil from Jodhpur
National University, Rajasthan. And now am perusing my PhD from Amity University, Noida
under the guidance of Prof. A.K Kanthroo.
During my graduation I have done internship with two NGO dealing with legal Aid. For one and
half year I have done practice under Calcutta High Court as Criminal Lawyer. After that I joined
Quislex Legal Services Pvt. Ltd, Hyderabad as Junior Legal Associate and afterwards I have
joined V.K MUNSHI Associates, Raipur, Chhattisgarh. There I worked for One year dealing with
criminal matters. And now I have joined Disha Law College as Assistant Professor for Law
Department.
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ABSTRACT
Being a lawyer we all know about the difference between a Bill and an Act. A bill is legislative
proposal which is presented before the parliament for its approval when both the houses i.e Lok
Shabha and Rajya Sabha approved it. Now when the parliament accepts and approves this
legislative proposal then it becomes an Act which becomes the law of the land and binding to all.
Now as I have discussed about the difference between bill and an Act, so from here we get that
Assisted Reproductive Technology Bill, 2010 is a Bill only and not an Act, so this bill is not
binding to anyone. Now the question is even though this bill is pending before the parliament for
its approval but whether this bill will be sufficient to regulate the process of Surrogacy in India
which is purely commercial in nature here. Supreme Court while deciding the nationality of child
born through Surrogacy in the case of Baby Manji Case asked parliament to bring a law to
regulate

this

process

i.e

in

2008.

But

still

now

there

is

no

law.

Now from my research paper I would like to highlight those points in ART, Bill 2010 which need
to be discussed elaborately and certain points which need to be added in the Bill before it get
approval from parliament. One of the points which I want to discuss is about the dosage of
synthetic hormone which is used in the egg removal process. And it is one of the important and
dangerous loopholes of the ART Bill, 2010 as nothing is mentioned about its dosage and that is
why it is found that this hormone is misused by the reproductive clinic.
Key words: - ART Bill, Synthetic hormone, trafficking, egg donor, Surrogacy, Reproductive
Clinic.

A.INTRODUCTION
We know that every Bill and Act has some merit and demerit in it. And it is easy to amend a Bill
and not an Act. Because once the Bill gets approval from Parliament as well as assent from the
President it becomes the Act. So its, better to correct the loopholes when it is a Bill. Like any
other Bill, ART BILL, 2010 also has some merit and demerit. Through my research paper I am
trying to highlight those points which I think is a great loophole of the Bill. And also I will try to
give some suggestive measure so that, this wonderful process can be regulated well in future
when it will become an Act. Also through my research paper I would like to seek the attention of
the Government of India in some points which I think should be added in the Bill before it
become an ACT. I will discuss about The ART Bill, 2010 Chapter wise.
1.PREAMBLE OF THE ART BILL, 2010
Preamble of the ART Bill, 2010 starts with It is estimated that 15 percent of couples around the
world are infertile. This implies that infertility is one of the most highly prevalent medical
problems. The magnitude of the infertility problem also has enormous social implications.
Besides the fact that every couple has the right to have a child, in India infertility widely carries
with it a social stigma. In the Indian social context specially, children are also a kind of oldage
insurance.
With the enormous advances in medicine and medical technologies, today 85 percent of the
cases of infertility can be taken care of through medicines, surgery and/or the new medical
technologies such as in vitro fertilization (IVF) or intracytoplasmic sperm injection (ICSI). It
may be recalled that the birth of the first child, Louise Brown in 1978, through the technique of
in vitro fertilization by Robert G Edwards and Patrick Steptoe, was a path-breaking step in
control of infertility; it is, in retrospect, considered as one of the most important medical
advances of the last century.
Most of the new technologies aimed at taking care of infertility, involve handling of the gamete
spermatozoa or the ooctye outside the body; they also often involve the donation of
spermatozoa or oocyte, or the use of a surrogate mother who would be carrying a child with
whom she has no biological relationship. These technologies not only require expertise but also
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open up many avenues for unethical practices which can affect adversely the recipient of the
treatment, medically, socially and legally.
The last nearly 20 years have seen an exponential growth of infertility clinics that use techniques
requiring handling of spermatozoa or the oocyte outside the body, or the use of a surrogate
mother. As of today, anyone can open infertility or assisted reproductive technology (ART) clinic;
no permission is required to do so. There has been, consequently a mushrooming of such clinics
around the country.
In view of the above, in public interest, it has become important to regulate the functioning of
such clinics to ensure that the services provided are ethical and that the medical, social and
legal rights of all those concerned are protected.
The bill details procedures for accreditation and supervision of infertility clinics (and related
organizations such as semen banks) handling spermatozoa or oocytes outside of the body, or
dealing with gamete donors and surrogacy, ensuring that the legitimate rights of all concerned
are protected, with maximum benefit to the infertile couples/individuals within a recognized
framework of ethics and good medical practice.1
From the very first paragraph of the preamble we will find that, the main motive of the Bill is to
treat the infertile couple and to help them so that they can have their own child through the
Assisted Reproductive Technology. But in reality we will find that from this Reproductive
Technology not only the infertile couple were being treated but some where the couples who
were physically fit to have their own baby and already they have their own baby were also
getting baby from this Technique. Best example of this, one can find from the surrogate baby of
the Bollywood film star Shah Rukh Khan2.
Even the preamble and Section 2 (u) which defines infertility, means the inability to conceive
after at least one year of unprotected coitus; or an anatomical / physiological condition that
1 The Assisted Reproductive Technologies (Regulation) Bill 2010, 1, http://icmr.nic.in/guide/ART
%20REGULATION%20Draft%20Bill1.pdf
2 Reuters, Full text of Shah Rukh Khan's statement on surrogate son AbRam, The Indian Express, ( Jul.10, 2013,
13:28
pm)
http://archive.indianexpress.com/news/full-text-of-shah-rukh-khans-statement-on-surrogate-sonabram/1140010/
4

would prevent an individual from having a child 3 is silent for those couples who already have
their own baby born through naturally.
2.DEFINITIONS
Section 2 (h) of the Bill defines couple 4 as two persons living together and having a sexual
relationship that is legal in India. Now here it is important to mention here that In India
Homosexual is a criminal offence under Section. 377 of IPC 5. So, couples who are homosexual
like Gay and Lesbian they cannot go for this ART Clinic to have their own baby. But in reality it
is opposite. And we can find it from the article of Nilanjana Bhowmick6.
Another point for discussion here is that as per the definition of Couples given in Section 2(h)
two persons living together and having a sexual relationship that is legal in India will be called as
couple and can avail the facility of ART Bill. And the definition which is given under section
2(g) relating to Commissioning parents/couples/individuals, means parents, couples or
individuals, respectively, who approach an ART clinics or ART bank for providing a service that
the ART Clinic or the ART bank is authorized to provide. 7 Here we will find that nothing is
defined specifically about the Individuals. So in such case a single parent can also be called as
Individual including Gay, lesbians as they are also individual. But, from the preamble we can
find that through the technique of ART one who is infertile can have their baby through it
especially in cases of those couple where wife is unable to conceive due to any health issue. But,
What about a single parent? Why they will avail this facility? If they really want a baby then they
can go for adoption. Here, in ART Bill single parents should not be allowed to use this technique.
If they are allowed then gay, lesbian should also be allowed to avail this facility. Because
infertility arises where any one of the couples is having any problem either its related to sperm,
ova or uterus. And in case of Single parents no question of infertility?
3. DUTIES OF AN ASSISTED REPRODUCTIVE TECHNOLOGY CLINIC
3 Supra. 1 at 4.
4 Supra. 1 at 3.
5 Ratan & Dhirajlal, The Indian Penal Code,719, Wadwa & Company Nagpur,( 30th edi., Reprint 2016)
6 Nilanjana Bhowmick, Why People Are Angry About Indias New Surrogacy Rules, TIME (Feb.15,
2013)http://world.time.com/2013/02/15/why-people-are-angry-about-indias-new-surrogacy-laws/
7 Supra.4
5

Now Section.20 of the Bill, deals with General duties of Assisted Reproductive Technology
Clinics. According to Section.20 (14) No assisted reproductive technology procedure shall be
performed on a woman below 21 years of age, and any contravention of this stipulation shall
amount to an offence punishable under this Act8 But in reality it is different. This section has
been violated by Infertility Clinics and that we can find from the article published by Debesh
Banerjee9, he mentioned that, while making the famous documentary movie, filmmaker Ishani K
Dutta, first did research for her documentary film Womb on rent. The movie was based on
Surrogacy. While doing her research she found that, even though it is in the ICMR guidelines
that, a girl below 18 years could not donate her eggs. However, in reality it is opposite. Because
while doing research for her film, she found that girls below 18 years were also donating eggs.
She expressed her fear that by this way, girls after attaining her puberty will become a machine
for printing money for others. She also found that, the conditions of surrogate mothers in India
are not good and they were exploited by the moneymaking fertility Clinics.
4. SOURCING, STORAGE, HANDLING AND RECORD KEEPING FOR GAMETES,
EMBRYOS AND SURROGATES
According to section.26 (8) No woman shall donate oocytes more than six times in her life, with
not less than a three-month interval between the oocyte pick-ups10. Now here comes my
question relating to monitoring. Who is going to monitor that a women who is coming for egg
donation is coming for the first time or what if she has already donated her eggs for six times and
again she came for the same?
Again according to section.26 (9)Eggs from one donor can be shared between two recipients
only, provided that at least seven oocytes are available for each recipient.11 Another point which
I want to highlight here, in this section is that, nothing is mentioned about the number of eggs
which can be removed at a time from a donor. So, there is a great chance of misuse of the ART
Bill regarding the number of eggs which can be removed at a time because of lack of instruction
and guidelines regarding the number of eggs which can be removed at a time.
8 Supra.1 at 16.
9Debesh
Banerjee,
A
Surrogate
Story,
http://www.geneticsandsociety.org/article.php?Ibid=7631
10 Supra.1at 20.
11 Id.

THE

INDIAN

EXPRESS,

Mar.21,2014

5. RIGHTS AND DUTIES OF PATIENTS, DONORS, SURROGATES AND CHILDREN

According to section.34 (2)12 All expenses, including those related to insurance if available, of
the surrogate related to a pregnancy achieved in furtherance of assisted reproductive technology
shall, during the period of pregnancy and after delivery as per medical advice, and till the child
is ready to be delivered as per medical advice, to the biological parent or parents, shall be borne
by the couple or individual seeking surrogacy. First of all the word insurance is itself not
clear means whether it speaks about medical insurance or Life Insurance? Again here from the
section we can find that insurance for surrogate mother is not compulsory here. So in case of
death of Surrogate mother nothing will be done to compensate her family leaving behind, which
is another loophole of the Bill. When a women is renting her womb for 9 months it means that
someone is getting benefit from her service. So at least, for her service, where she is risking her
life, compulsory Life and medical Insurance should be given her.
Again, according to section. 34(5)13 No woman less than twenty one years of age and over thirty
five years of age shall be eligible to act as a surrogate mother under this Act. Provided that no
woman shall act as a surrogate for more than five successful live births in her life, including her
own children.
It is not clear from this section that, whether a women who dont have their own children can
become a surrogate mother for other? If the answer is Yes in that case unmarried lady should also
be allowed to become Surrogate mother.
B. SUGGESTION
Nothing is mentioned about the dosage of Synthetic Hormone used in the egg retrieval
process. So, a standard dosage should be mentioned there in the Bill.
Proper monitoring is required for the entire process.
The total number of egg which can be removed at a time should be mentioned in the ART
Bill.
12 Supra.11at 26
13 Id.
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 Even Insurance should be provided to egg donor also.

Proper counseling should be done for the surrogate mother as well as for the egg donor to
find out that whether they are coming for the process willingly or by force. By this way
also we can control the trafficking up to certain extent.
Surrogacy should be used as a treatment for the infertility and not for those who are
healthy.
C. CONCLUSION
Every new Bill has some merit and demerit on it. So its better to find out the loophole of the
Bill immediately and to rectify it within time before it becomes an ACT. So that, maximum
people of the society can get benefited from it and also proper monitoring is required. So that
no one should become the victim of exploitation, trafficking etc.