Assisted Reproductive Technology: the Scheme

In one line

Conception outside the body separated the people who supply the material, the person who carries the child, and the people who will raise it, and the law had to decide what each of them is.

In the wording a student can write in an exam: the Assisted Reproductive Technology (Regulation) Act 2021 regulates clinics and banks that provide assisted reproductive technology, defined as all techniques that seek to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or embryo into the reproductive system of a woman; it establishes a National Board and State Boards shared with the Surrogacy Act, a National Registry, and appropriate authorities; it imposes duties as to consent, records, sourcing of gametes, storage and research; and it settles the status of the child and the position of the donor.

Why the law has this at all

The capability created three legal questions that had no answers, and the Act is organised around them.

What is the child, and whose? Where gametes come from donors and an embryo is transferred to a woman who may or may not be the intended mother, the ordinary presumptions of parentage fail. Section 31 answers it.

What is a donor? A person who supplies gametes is neither a parent nor a patient nor a seller, and each of those characterisations would produce a different set of consequences. Sections 27 and 31(2) answer it.

What stops a market? Gametes and embryos are transferable and valuable, and the same reasoning applies as in [Trade in Organs and Its Punishment]. Section 29 answers it.

Before the Act, all three were governed by contract and by professional guidance, which is the delay failure described in [Health and Medical Technology]: the capability arrived and the law did not.

Sections 1 and 2: application and definitions

Section 1 gives the short title, extent and commencement. Section 2 contains the definitions, and the ones that decide questions are:

• assisted reproductive technology, which covers all techniques that seek to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or embryo into the reproductive system of a woman;
• assisted reproductive technology bank, an organisation registered under the Act for supplying gametes;
• assisted reproductive technology clinic, a premises equipped with requisite facilities for the procedures;
• commissioning couple, an infertile married couple who approach a clinic or bank for the services;
• donor, a person who provides sperm or oocyte; and
• infertility, the inability to conceive after a year of unprotected coitus or such other proven medical condition preventing conception.

Section 45 provides that the application of other laws is not barred, so the Act sits alongside the PCPNDT Act, the Surrogacy Act and the general law rather than displacing them. Section 46 is the power to remove difficulties.