INTRODUCTION
The Assisted Reproductive Technology (Regulation) Act of 2021 specifies eligibility requirements for both commissioning parties and donors. Married couples or women who meet the following criteria can seek ART services: (i) the woman must be between 21 and 50 years of age, and (ii) the man must be between 21 and 55 years of age.1 Additionally, married couples must be diagnosed with infertility, defined as the inability to conceive after one year of unprotected intercourse or due to any other medically proven condition that hinders conception. For donors, ART banks are authorized to obtain semen from males between 21 and 55 years of age and eggs from females between 23 and 35 years of age. A woman may donate eggs only once in her lifetime, with a maximum of seven eggs retrieved during a single procedure. ART banks are prohibited from providing gametes from a single donor to more than one commissioning party (i.e., couples or single women seeking ART services). Moreover, the rights of the child born through assisted reproduction are fully protected by deeming them to be the legal biological child of the commissioning couple and will be entitled to the rights and privileges available to a natural child of the commissioning couple. A donor will not have any parental rights over the child.2 Though the Act has tried to provide a complete mechanism for facilitating the ART services and has provided stricter criteria for availing these services, the Act still has many lacunas within it, which has been described in detail in the next segment of the paper.
IMPACT ON THE REPRODUCTIVE AUTONOMY OF WOMEN
While the Assisted Reproductive Technology (ART) Regulation Act of 2021 in India represents an attempt to regulate and oversee assisted reproductive practices, there are concerns and aspects within the Act that may be perceived as potential impediments to women's reproductive autonomy. Some of these issues are listed below:
Firstly, the eligibility criteria for ART services are restrictive and exclusionary, limiting access to only infertile heterosexual married couples or single women who are either widowed or divorced. This narrow definition overlooks the needs and desires of the LGBTQ+ community and unmarried partners, effectively excluding them from availing ART services. Excluding single unmarried women from the scope of ART restricts their right to bodily autonomy and hampers their reproductive choices. The ART Act imposes strict eligibility criteria for commissioning couples, restricting access to individuals who are legally married, above the age of 23 for women and 26 for men, diagnosed with infertility, and have no existing children. Even within a heteronormative context, this exclusionary framework disregards the aspirations of newly married couples (such as a couple where the woman is between 18-23 years old and the man is between 21-26 years old) who desire to have a child, or those who have an existing child but are unable to conceive another and wish to pursue surrogacy as an alternative. The degree of interference with regard to varying age restrictions, marital status, sexual orientation, and identity is unrelated to the regulatory goals that the Act aims to achieve.
Secondly, the Act forbids compensatory surrogacy and modifies the nation's surrogacy laws. By doing this, the act maintains a paternalistic paradigm that is harmful to women's authority and autonomy and her process of reproduction. These tougher requirements for surrogates also run the risk of driving the practise underground and endangering the lives and rights of women. If the Act does include restrictive rules pertaining to surrogacy, it might affect the women who decide to use surrogacy as a way of becoming mother or those who become surrogates. This provision also presents an additional challenge for these families and women, who are either unable to proceed with or ineligible for altruistic surrogacy because they are also excluded by the scope and applicability of the ART Act and from the application and jurisdiction of Indian surrogacy laws.
CONCLUSION
As demonstrated above, the Act's discriminatory nature results from a confluence of old-fashioned ideas, legal reasoning that is faulty, and conventional morality. The Act's framers used antiquated wisdom to limit its application, which is inconsistent with a country that aspires to a modern viewpoint. No longer should the ideas of gender identity, sexual orientation, and marital status determine an individual's capacity to start a family. These characteristics don't affect a child's upbringing or well-being, so a couple or individual shouldn't be automatically excluded from using the services that ART clinics and banks are required to offer under the Act. Putting individual rights first, creating clear consent processes, and maintaining privacy are critical to creating a culture that honours and empowers people as they navigate reproductive health.
In conclusion, it is critical to fight for a fair system that respects both the values of medical ethics and the freedom of individuals—especially women—to make decisions that are consistent with their goals and values as we navigate the moral and legal complexities of ART regulations. This calls for continued discussion, improved regulations, and a dedication to making sure that the moral and legal aspects of ART coexist peacefully with the changing landscape of reproductive healthcare.
REFERENCES
1 The Assisted Reproductive Technology (Regulation) Act, 2021 § 21(g).
2 Id., § 31.
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