The Assisted Reproductive Technology (Regulation) Act, 2021 (hereinafter ‘ART Act’) was recently passed by both houses of the parliament and received the assent of the President on 18th December 2021. The ART Act was tabled with the objective of regulating the clinics and banks that deal exclusively with Assisted Reproductive Technology and ensuring that no unethical malpractices are being followed. The Act was first tabled in the Lok Sabha in September 2020. However, the first time it was put in front of the legislature, it was opined that the same is not fit to be an enforceable law yet.
In regard to the same, a department-related parliamentary standing committee was constituted. The committee was given the task of filling up the lacunae in the Bill and presenting it before the parliament. The committee did a commendable job at dealing with a number of issues that were raised by the legislature and other stakeholders regarding the Bill however, concerns related to equality and the rights of the LGBTQIA+ community, live-in couples, and single male parents have been left unresolved by the committee and the legislature. The author in the following sections of this article has elucidated how the ART Act goes against the spirit of equality and the stance of the established law regarding the rights of same-sex couples.
Composition of the Act
Provision 2(1)(e) of the Assisted Reproductive Technology (Regulation) Act, 2021 lays down the definition of the term ‘commissioning couple’. The definition states that ‘commissioning couple’ refers to “an infertile married couple who approach an ART clinic or ART bank for obtaining the services authorized of the said bank or clinic”. Furthermore, provision 2(1) of the act uses a gender-specific term i.e. ‘woman’ under clause 2(1)(u) of the said Act.
After an exhaustive reading and analysis of the aforementioned provisions of the ART Act, it can be concluded that it fails to include persons belonging to the LGBTQIA+ community, live-in couples, and single male parents from availing the facilities provided by the ART clinics and banks. The exclusion is discriminatory and goes against the spirit of equality and the constitutional rights of the individuals concerned. Moreover, the author herein argues that putting limitations on who can avail of the said facilities might result in the opposite of what the Act desires to achieve. The exclusion encourages people to resort to the black-market and follow the same unethical practices at the ART clinics and banks which the Act seeks to eradicate in the first place. In the following section of this article, the author has challenged the constitutionality of the above-mentioned provisions of the ART Act.
Constitutionality of the ACT & what did the legislature miss
Every individual deserves recognition and respect to lead a dignified life in society. These principles should be expressed in all elements of a person’s life, including the right to reproductive health and the freedom to form a family, regardless of sexual orientation, marital status, or gender. The fundamental rights to which all Indian people are entitled and are protected by the Indian constitution.
Article 14 of India’s Constitution ensures equality before the law and prohibits the execution of arbitrary legislation that does not provide a just, fair, and reasonable justification for unequal treatment. As a result, the legislature cannot deny a certain group of people the right to use the services provided by ART Banks and Clinics without presenting sufficient legal justification. However, the ART Act fails to abide by the same as it fails to treat all classes of individuals as equal and arbitrarily denies some of them availing the benefits of the Act.
Furthermore, the Act not only goes against the spirit of the Constitution but also against certain pre-existing Acts. For instance, the adoption law in India allows single and divorced individuals to adopt. Section 7 and 8 of the Hindu Adoptions and Maintenance Act, 1956 and Section 57 of the Juvenile Justice (Care and Protection of Children) Act, 2015 permit single and divorced persons to adopt children. The rationale behind the aforementioned provisions makes a strong case for single and divorced individuals, irrespective of their gender, to be provided with the right to avail the facilities offered by ART clinics and banks.
Moreover, the ART Act also goes against several landmark precedents handed down by the Apex Court. The Supreme Court in the case of Navtej Singh Johar & Ors v. Union of India held Section 377 of the Indian Penal Code, 1860 to be unconstitutional and created the path for legal recognition of homosexuality in India. Since homosexual relationships are legal in India and then it can be assumed that such homosexual couples living together should be classified as live-in couples. The Apex Court, in the case of S.PS. Balasubramanyam v. Suruttayan, held that the children born out of a live-in relationship are considered to be equivalent to biological children of a married couple and as per the judgment of the Supreme Court in the case of Tulsa & Ors v. Durghatiya & Ors, there is a presumption of marriage for couples living together for a long time.
In light of the above-stated law, the exclusion of persons belonging to the LGBTQIA+ community, live-in couples, and single or divorced male individuals from availing the benefits provided by the ART Act can be deemed to be unconstitutional, arbitrary, biased, and against the letter and spirit of the pre-existing law. Not only is the said Act unlawful and unconstitutional, the legislature also failed to provide a just and reasonable explanation for bringing in such a backward and manifestly biased law. Every time questions were raised to the legislature regarding the issue, the only response that was adduced was that the idea of live-in couples, LGBTQIA+ individuals, and single male parents having kids through assisted reproductive technology goes against our ethos.
In its report, the Standing Committee stated that, given the Indian family structure and archaic way of thinking accepting a kid whose parents are together but not legally married will be difficult. The Committee also stated that it would not be suitable to allow live-in couples and same-sex couples to use the ART Act’s facilities due to the welfare of the child born through ART services and other parentage difficulties in the event of their separation. The Standing Committee’s rationale, on the other hand, runs against well-established conventions of what constitutes a child’s welfare. It thrusts upon its own ideas which are not in sync with the reform oriented mandate of the Law and needs of the time.
Over the years, the concept of ‘child welfare’ has been a source of heated dispute. In the case of Mausami Moitra Ganguli v. Jayanti Ganguli, the Supreme Court held that a child’s welfare is a holistic term that comprises of stability and security, affection, and an atmosphere conducive to a child’s healthy growth. There’s no reason to believe that stable homosexual couples can’t raise a child with the same upbringing as a heterosexual marriage. Independence of the gender or sexual orientation of the parents, the circumstances of a child’s upbringing is ultimately a consequence of prevailing circumstances and individual temperament of the child and parents.
To sum up, the author claims that the sexual orientation, gender, or marital status of the intended parent(s) has no bearing on the child’s upbringing and welfare and that it should not automatically disqualify a couple or individual from using the services provided by clinics and banks under the ART Act.
The exclusionary nature of the Act as demonstrated above finds its roots in individual orthodox morals, unscientific notions and legally unsound rationale. Legislators of the state have resorted to unorthodox beliefs to restrict the scope of the Act and it should be unacceptable in a country striving to embrace a modern outlook. The concepts of sexual orientation, gender, and marital status should no longer determine the ability to start a family and the Supreme Court has attempted to weed out our laws of moralistic restrictions on liberty. The Act in its current form is unacceptable and in furtherance to the same, the author suggests the Act to be amended and the terms “infertile couple” and “women” in Section 2(1) (e) and Section (1)(u) respectively to be replaced by “couple or individual” to provide the opportunity of having and raising a child to single people, divorcees, and people belonging to the LGBTQIA+ community.
(This post has been authored by Aniruddh Saraswat and Oindrala Mondal, 4th-year students at National Law University Odisha, Cuttack.)