The Embryo Embargo: Understanding Prohibition of Commercial Sale And Purchase Of Embryo In Light Of Assisted Reproductive Technology Regulation Bill 2020

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Chaired by the Prime Minister, the Union Cabinet has approved the Assisted Reproductive Technology Regulation Bill 2020. One of the prominent provisions of the Bill is a prohibition on sale and purchase of human embryos.

A human embryo is an early stage of growth and differentiation from fertilization to the beginning of the third month of pregnancy. It is important to understand that India allows gamete donation i.e. sperm and egg donation is allowed. IVF procedures and altruistic surrogacy is also allowed. Then why is it that the sale of an embryo, which is the combination of the gametes is not allowed?

Yes, dealing in the embryo is going to be much cheaper, but it involves too many legal and ethical complications with it. Ethical objections vary from the scope of coercion and exploitation of women by the rich to the poor. It also includes the essence of ‘immorality’ according to society’s standards.

Yet one of the main reasons for implementing this is to prevent the exploitation of women. After the ban of commercial surrogacy there was an increase in the cases of embryo smuggling in India to implant the embryos and perform fraudulent ‘altruistic’ surrogacy. 

Penalty in ART Regulation Bill 2020

The Bill proposes stringent punishment for people (and agencies/rackets/organizations involved in these unlawful practices) practicing sex selection of the embryos and sale of embryos. 

Trafficking and sale of embryos is a crime and penalized heavily. The first strike will attract a fine up to Rs. 10 Lakh. A second instance will attract a punishment of imprisonment for upto 12 years.

Identifying loophole in the Bill/ Target areas for the Act to include:

Prohibition is on the sale of embryos. In cases where many embryos created, for the successful process of IVF for example, what is going to happen to the extra embryos?

It’s a small detail, but nonetheless an important one. According to the safety standards and ensuring a successful pregnancy, the preferred number of most embryos to be implanted is 3! Women go for many cycles, sometimes it takes even more than 3 trials. Thus by trying to be on the safer side, the number of embryos created are more than required. What to do with the extra embryos? Allow the institution/clinic to hold onto them? If so, for how long and for what purpose?

Embryo Donation/Adoption-Allowed? 

The Bill is not specific on the provisions of donation or adoption of embryos. If this is allowed, or the chosen method of disposition of extra embryos, regulations related to the same must also be specified.

ART Bill aims to prevent ‘multiple embryo implantation’- How?

Taking inspiration from international cases, there are possible two alternatives:

Embryo adoption programs

The USA is a leading study in this sector. Consider the Snowflake Program, the first of its kind introduced in the USA. Here, when the couples have embryos remaining after completion of their IVF cycles, they have the option of donating those embryos. This received the approval by the American Society of Reproductive Medicine.

They stayed on the thin lines of the ethics boundaries by formulating 3 main feature of the program which were to be strictly adhered to:

  1. Embryos are given, not sold for profit
  2. Only allowed in case of excess/surplus of embryos. Embryos will not be created to be donated!
  3. Biological parents have authority. They decide whether to put the embryos for adoption, as well as the adoptive parents.
Restricting creation of embryos more than intended to implant

Germany forbids to fertilize more embryos than intended to implant. It restricts number of embryos created per cycle to no more than three. The German embryo protection law, passed in 1991 –“ no more than three embryos can be created per cycle of IVF and all three, regardless of their quality, must be transferred to the patient’s womb at one time, and cannot be frozen or discarded.”

Is this the approach that India should go with? If intending parents intend to have twins but back out form the decision after the creation of the embryos? Should that be an available option? 

It cannot be refuted that the existence of rigid rules about this will help the intending parents to plan in advance and prevent any future legal and ethical issues.

Conclusion 

Establishing a law on the ban of sale and trafficking of embryo for protection against exploitation is commendable. It is because exploitative practices are so prevalent in the Indian reproductive market that it was necessary to bring about a strong legislation to regulate it.

The article highlights the ethical issues as well as possible alternatives. Use of research may be the best possible option to decide the course of action. Adopting Germany’s method may be a very effective approach to handle the focused issue. Though it has faced a lot of backlash over the years on humanitarian and ethical grounds. Changes tried  in the law to make it fairer – allow protection of embryos and not just end up killing more than protecting. 

Clarity on details is essential. Embryos bring in complex legal as well as ethical issues with them since the right to life and other such important fundamental issues are in the highlight along with them, related to them. There is a need of a method to understand the disposition mechanism of the extra embryos. The administrative capability of the Act and the country will drive the course of action. The most ethically balanced approach is in the Act!


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