'Restrictions On Egg Donations Unreasonable' : Another Plea By IVF Specialists Challenging ART Act; Supreme Court Issues Notice
The Supreme Court on Monday issued notice on a petition challenging certain provisions of the Assisted Reproductive Technique (Regulation) Act, 2021 and the Assisted Reproductive Technique (Regulation) Rules, 2022, and directed it to be tagged with another pending plea on a similar issue. A Division Bench comprising Justices Ajay Rastogi and Bela M. Trivedi was hearing a petition filed...
The Supreme Court on Monday issued notice on a petition challenging certain provisions of the Assisted Reproductive Technique (Regulation) Act, 2021 and the Assisted Reproductive Technique (Regulation) Rules, 2022, and directed it to be tagged with another pending plea on a similar issue.
A Division Bench comprising Justices Ajay Rastogi and Bela M. Trivedi was hearing a petition filed by over 200 in vitro fertilisation (IVF) specialists across India alleging that the extant legal regime completely excluded certain categories of persons like single women, single men, same-sex couples and live-in couples from the purview of the impugned Act, beside imposing other ‘unscientific and irrational restrictions’ such as limiting the number of donations made by an oocyte donor. Such restrictions, it was claimed, were also violative of the principle of reproductive autonomy, which has been judicially read into the fundamental right to life under Article 21. The petitioners further pointed out the lack of any provision for monetary compensation for oocyte donors, which, according to them, was ‘a major oversight’ since it failed to consider the losses in terms of time or wages incurred by the donor on account of the egg retrieval surgery.
Apart from this, the petitioners have also called into question the soundness of the decision to subject medical practitioners to the rigours of the Indian Penal Code, 1860 and to make the offence under Section 33 of the ART Act cognizable. This, they have strenuously argued, would have a ‘chilling effect’ on IVF practitioners across the country, dissuading them from discharging their professional duties due to the fear of prosecution. In this connection, the petitioners have relied on the observations made by Justice D.Y. Chandrachud, as he was then, in X v. Principal Secretary, Health and Family Welfare Department, Government of National Capital Territory of Delhi, 2022 LiveLaw (SC) 809, regarding the cascading effects of the fear of prosecution among medical practitioners. The petitioners submitted that the collective effect of these issues was that IVF cycles through donor eggs have been brought to a complete standstill.
The bench led by Justice Rastogi issued notice on this writ petition deciding to hear all of them together on January 24. The bench also instructed the centre to make a representation to the National Assisted Reproductive Technology and Surrogacy Board constituted in December 2022 to consider the prayers in the petition and file a suitable response. Additional Solicitor-General, Aishwarya Bhati appeared on behalf of the central government, while the petitioners were represented by Advocate Mohini Priya.
Priya told LiveLaw, “This petition specifically deals with the rights of egg donors. IVF through third-party donor eggs constitutes 40 per cent of all IVF procedures and the Act completely overlooks their rights to compensation for the time and effort of going through the surgical procedure of going through egg retrieval and other expenses like food, travel, and accommodation, which is unjust and unreasonable leading to an extreme shortage of egg donors in the country. While surrogacy consists of three to five per cent of assisted reproduction, IVF makes up 97 to 98 per cent of it. Therefore, the number of people affected by it is very large. The provision of allowing only one oocyte donation in the lifetime of a donor and other ancillary provisions are not just unscientific and unreasonable but against international best practices. These issues have not been dealt with, in the surrogacy PIL.”
Case Title
Aniruddha Narayan Malpani v. Union of India & Ors. | W.P. (Civil) No. 1129 of 2022