ART: Offences and Penalties

In one line

The Act's severest punishment is not for anything done to an embryo but for advertising that you will choose its sex.

In the wording a student can write in an exam: the offences fall into three groups: sex selective advertising under section 32, punished most severely of all; the seven prohibited acts in section 33(1), which include abandoning or exploiting the child, trading in embryos or gametes, importing them, exploiting the commissioning couple or donor, transferring an embryo into a male person or an animal, selling for research, and using intermediates to obtain donors; and the residual offence in section 34; with cognizance under section 35 confined to a complaint by the National Board or a State Board.

Section 32: sex selective advertising

Section 32(1): the clinic, or bank, or agent thereof, shall not issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner including internet, regarding facilities of sex selective assisted reproductive technology.

Section 32(2): contravention is punishable with imprisonment not less than five years, extending to ten, or with fine not less than ten lakh rupees, extending to twenty-five lakh, or with both.

That is the heaviest penalty in the Act, and it is worth pausing on why. The section punishes an advertisement, not a procedure. Nothing need have been done to any embryo, and no woman need have been treated. The legislature has ranked the creation of a market for sex selection above the individual acts in section 33, which is the same judgment reflected in section 22 of the PCPNDT Act and in section 19(f) of the Transplantation Act: a demand cultivated by advertising produces the practice, so the advertisement is attacked first.

Section 33: the seven prohibitions

Section 33(1): any medical geneticist, gynaecologist, registered medical practitioner or any person shall not:

• (a) abandon, disown or exploit, or cause to be abandoned, disowned or exploited in any form, the child or children born through assisted reproductive technology;
• (b) sell human embryos or gametes, or run an agency, a racket or an organisation for selling, purchasing or trading in human embryos or gametes;
• (c) import or help in getting imported in whatsoever manner human embryos or human gametes;
• (d) exploit the commissioning couple, woman or the gamete donor in any form;
• (e) transfer a human embryo into a male person or an animal;
• (f) sell any human embryo or gamete for the purpose of research; or
• (g) use any intermediates to obtain gamete donors or purchase gamete donors.

Section 33(2): contravention of clauses (a) to (g) is punishable with a fine not less than five lakh rupees, extending to ten lakh, for the first contravention; and for a subsequent contravention, imprisonment not less than three years, extending to eight, and fine not less than ten lakh rupees, extending to twenty lakh.