Author: Chhawi Kumari Gupta, II year of B.A.,LL.B.(Hons.) from Chanakya National Law University
Co-author: Ayush Upadhyay, II year of B.A.,LL.B.(Hons.) from Chanakya National Law University
About a year ago, on 25th January 2021 Assisted Reproductive Technology Act, 2021 came into force. The act addressed the need to regulate ART Clinics and Banks. Prior to the Act being passed and receiving the President’s assent in December 2021, there existed only certain guidelines issued by the Indian Council of Medical Research regarding both compliance norms for unregulated ART clinics as well as for procedures related to surrogacy.[i] However, it has faced backlash from the LGBTQIA+ right activists.
It was deemed to be highly classificatory and restrictive in its very nature, as it limited the usage of ART to cisgender heterogeneous couples. It excluded LGBTQIA+ communities wholly. Thus, the constitutionality of the act has remained questionable.
The definition of "commissioning couple" is set forth in Section 2(1)(e)[ii] of the Assisted Reproductive Technology (Regulation) Act, 2021, it defines, "commissioning couple is an infertile married couple who are permitted to approach an ART clinic or ART bank to seek the services that bank or clinic offers”. Additionally, clause 2(1)(u)[iii] of the aforementioned Act employs the gender-specific term "woman".
The Act excludes LGBTQIA+ Community, single male parents, live- in couples from the group of people who can utilise ART. However, article 14[iv] of the Indian constitution states that the State shall not deny anyone's right to equal protection under the law or equality before the law. ART Act is differentiating people based on their gender and excluding a certain group of people from having the access to ART Banks and clinics. This is contrary to the principle of equality enshrined an Article 14.
Reasonability of classification
This omission by the legislature is intentional. In the report of parliamentary standing committee concerning the ART bill 2020 this omission was pondered over. The rationale given for the exclusionary provision was that “given Indian family structure and social milieu and norms, it will not be very easy to accept a child whose parents are together but not legally married. The Committee feels that keeping the best interest of that child born through ART services and other parentage issues in case of their separation, it would not be appropriate to allow live-in couples and same sex couples to avail the facility of ART.”[v]
The rationale provided is based on the fact that the current status of homosexuality and live-in relationships does not have the acceptance of society. However, the apex court, by decriminalising homosexuality, has taken a step to change this status quo. Thus, on the issue of equality for same-sex couples, both the judicial and legislative approaches must be those of a harbinger of change and not those of custodians of archaic norms. The present legislation, instead of bringing change, validates the present repressive norms. This serves as a major set-back to the progressive judicial trend set by the apex court in the case of Navtej Singh Johar v. Union of India[vi].
Thus, differentiation that the ART Act does by denying access to use the services provided by ART Banks and Clinics is contrary to the current judicial trend and is not reasonable by any means.
Arbitrary Differentiation
The differentiation is also arbitrary on many fronts. The objective behind bringing this Act is to regulate ART Clinics and Banks and to ensure right and ethical practices but denying the access to certain communities will lead to illegal way of accessing it via black marketing. The sole objective behind the Act stands unfulfilled. Thus, the classification done has no nexus with the primary objective of the act. Hence, the classification is arbitrary and unreasonable.
Moreover, To attribute characteristics grounded in stereotypes to groups of people, on the grounds prohibited under Article 15(1) is discriminatory State action and impermissible, as per the Supreme Court’s landmark ruling in Navtej Singh Johar & Ors. versus Union of India (2018)[vii].
Excluding members of the LGBTQ+ community from availing ART and surrogacy services, based on their identity and sexual orientation, is discriminatory and falls afoul both Articles 14 and 21. [viii] Article 21[ix] of Indian constitution guarantees personal liberty and Right to life. This act goes against Article 21 and as well as against judicial trend.
In Navtej Singh Johar v. Union of India[x], Chief Justice Dipak Mishra emphasized about sexual orientation being a inherent aspect of privacy, everyone, including LGBTQIA+ people, have the right to freely express their sexual preferences without fear of discrimination and legal repercussions. In same case the apex court decriminalised homosexuality and held section 377[xi] of the Indian Penal Code, 1860 as unconstitutional. Since homosexuality is legal in India so it gives a valid ground to treat homosexual couples living together and live-in couples at par with the heterosexual married couples. The repressive act may stop queer couples from associating with partner of their choice. Thus, impeding their right to choose partner.
The act also negatively impacts the same sex couples from freely expressing their sexual orientation. As they would have to hide their homosexuality if they wish to utilise ART. This in turn negatively impacts their right to freedom and expression[xii].
Lawmakers are torchbearers and they are in a position to influence society. The legislative intent behind bringing an Act that is not inclusive in nature. It sets a dangerous trend for social awareness. It is also against the internationally accepted norms of guaranteeing equal rights to same sex couples.
Comparative Analysis
A comparative analysis of the provisions regarding the ART of various countries provides a better perspective on the repressiveness of the act. Moreover, the analysis also suggests a way forward for the prospective changes in the act.
England
When Louise Brown was delivered at Oldham and District General Hospital in 1978, she became the first person to be born as a result of in-vitro fertilization. With her birth itself, the question of the regulation of Assisted Reproductive Technology was raised. The first attempt to regulate was made in 1990, with the introduction of the Human Fertilisation and Embryology Act. The Human Fertilization and Embryology Authority was established as a result of the Act, and it is now in charge of overseeing and regulating fertility clinics as well as conducting research on embryos. The primary objective of the act was to regulate three aspects of assisted reproduction: the creation, care, and use of human embryos outside of the body of a mother (ex vivo ); the collection, care, and use of donated human sperm and eggs (donated gametes); and the storage of these human gametes and embryos.[xiii]
However, this act was not inclusive for the same sex couples. The use of the phrase “the need for a father” in the act [xiv] impeded the inclusion of non-binary couples. Later as the awareness regarding the LGBTQ community grew, the demand for inclusive law also grew. The Civil Partnerships Act 2004 granted same-sex couples who enter into a civil partnership the same rights and entitlements as those of different sex couples. Later, the Equality Act (Sexual Orientations) Regulations 2007 made it unlawful to discriminate on the grounds of sexual orientation in the provision of goods, facilities and services. This includes healthcare. The natural follow up was amendment of 2008 [xv] which addressed the issue of inclusivity in Human Fertilisation and Embryology Act,1990. The amendment expanded the allowable roles of same sex couples under the law. It adopted a gender-neutral phrase "need for supportive parenting" instead of the discriminating phrase of “the need for a father”. Thus, inclusivity was achieved.
Australia
In Australia, states have been entrusted with the regulation or use of procedures involving assisted reproductive technology. Thus, the regulation is not uniform throughout the country. In the state of New South Wales (NSW), the Assisted Reproductive Technology Act 2007 allows all women to access these procedures, regardless of whether they are married or not. In recent years, all states and territories in Australia have introduced laws that recognise non-birth mothers in lesbian relationships as legal parents of children conceived in the relationship.[xvi]. The relevant provision in state of NSW is following-
“When a woman who is married to or who is the de facto partner of another woman has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) the other woman is presumed to be a parent of any child born as a result of the pregnancy…
(b) the woman who has become pregnant is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.”[xvii]
Thus, the regulation in Australian states are very inclusive and non-discriminatory in nature as they recognise the same sex couple’s right to utilise Assisted Reproductive Technology and provides them the status of legal parent.
Way forward
Equality and inclusivity are basic principles of Indian Constitution. There exists a diversity of sexual orientation beyond the binary framework, yet equal rights for the non-binary genders are far from reality. With decriminalisation of homosexuality[xviii] the recent trend is towards inclusivity. However, to bring a definitive change in society, the judicial trends must be complimented by legislations. The Assisted Reproductive Technology Act 2021 fails to provide equal rights. In order to be inclusive, the act must provide equal access to the LGBTQIA+ community. In addition, the language should be made gender neutral. Specifically definition of “commissioning couple” under section 2(1)(e) and usage of gender specific terms like “woman” needs to be amended to make it more inclusive.The demand of the LGBTQIA+ community has been overlooked for a year, thus, its high time that the act must be amended to make it more inclusive.
[i] Reproductive Justice: Constitutional Issues Plaguing ART and Surrogacy Laws in India | NewsClick .
[ii] The Assisted Reproductive Technology (Regulation) Act, 2021, 2(1)(e), No. 42.
[iii] The Assisted Reproductive Technology (Regulation) Act, 2021, 2(1)(u), No. 42.
[iv] INDIA CONST. art. 14.
[v] Department Related Parliamentary Standing Committee on Health and Family Welfare, Report on The Assisted Reproductive Technology (Regulation) Bill, 2020, One hundred and nineteenth report. (https://prsindia.org/files/bills_acts/bills_parliament/2020/SCR%20The%20Assisted%20Reproductive%20Technology%20(Regulation)%20Bill,%202020.pdf ).
[vi] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[vii] Ibid.
[viii] https://www.newsclick.in/Reproductive-Justice-Constitutional-Issues-Plaguing-ART-Surrogacy-Laws-India .
[ix] INDIA CONST. art. 21.
[x] Supra note, vi.
[xi] The Indian Penal Code, 1860, Section 377.
[xii] INDIA CONST. art. 19.
[xiii] LaTourelle, Jonathan, "Human Fertilisation and Embryology Act (1990)". Embryo Project Encyclopedia (2014-12-19). ISSN: 1940-5030 http://embryo.asu.edu/handle/10776/8270.
[xiv] Human Fertilisation and Embryology Act 1990. UK Legislation, Chapter 37 (Passed 1 November 1990). (https://www.legislation.gov.uk/ukpga/1990/37/contents ).
[xv] UK Department of Health. Human Fertilisation and Embryology Act 2008.( https://www.legislation.gov.uk/ukpga/2008/22/contents ).
[xvi]https://www.findlaw.com.au/articles/5975/lgbti-and-family-law.aspx#:~:text=The%20states%20regulate%20the%20use,they%20are%20married%20or%20not .
[xvii] Status of Children Act 1996 (NSW), Section 14(1A)(https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1996-76#:~:text=(1)%20The%20presumptions%20arising%20under,the%20commencement%20of%20that%20subsection.) .
[xviii] Supra note, vi.