Media reports highlight a late Punjabi Singer’s parents having a child by Invitro fertilization treatment (IVF) beyond the age limits stated in The Artificial Reproductive Technology (Regulation) Act, 2021 (Act). It prescribes clinics to offer assisted reproductive technology (ART) services to men and women of ages of 50 and 55 respectively. The Act stipulates offences and penalties to gynecologists, medical geneticists and medical practitioners. Additionally, clinics, ART banks or agents can be made liable. Apparently, commissioning parents incur no liability on age violation.
Age is just a number. Health Ministry mandarins cannot question parents invoking IVF beyond prescribed ages, especially when IVF treatment is administered abroad and the child is born in India. No clinic or IVF specialist too has violated any law. Why the hue and cry. The Government cannot demand details of IVF procedures from the commissioning parents. Under the Act, children born through ART are deemed to be biological children of commissioning parents. Children are also entitled to all rights and privileges available to natural born children. Can this apple cart be upset? No. Then why public questioning and admonition.
Parenthood is a cherished dream. The Juvenile Justice Act permits adoption irrespective of marital status. Single or divorced persons too can adopt children. Hindu Adoption and Maintenance Act permits adoption without any age limits. Therefore, IVF cannot mandate age limits for parenthood. Children born by IVF or adoption cannot have different age requirements for parents to don the mantle of parents. Parliament made laws cannot be inconsistent for achieving parenthood with different or no age limits. Parenthood for single parents or couples by adoption or by IVF/surrogacy cannot have different inconsistent barometers and a conflict of parental rights. Parliament made rights under different laws cannot set down different ages to create contradicting criteria for being parents. If, in the current case, the parents had adopted under Hindu law, no law was violated. Then why, availing IVF to become parents they are being questioned. These parents must be left alone.
Governments cannot be a bull in a China shop. The Nine Judges Constitution Bench in Puttaswamy held, “the sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being,” applies to all individuals irrespective of their social status and are aspects of privacy. Indian Constitution guarantees rights of privacy which have been interpreted to mean enveloping a right of reproductive autonomy and achieving parenthood. Governments cannot enter homes to violate these rights. Above all, questioning the ages of parents by written communications and putting them in the public domain is a gross invasion of the rights of privacy of parents. Besides, attributing violations of age of parents, is an unpardonable misuse of authority by Governments to the rights of the newly born child who cannot defend himself.
Cases of well-known foreign actor celebrity and film star single parents having publicly acclaimed children born by IVF through surrogacy have not faced Government ire even though they entail violation of the Act. Why then, recent commissioning parents are facing Government questioning. Rights of privacy, confidentiality and rights to be forgotten cannot be selectively applied, particularly, when age for IVF does not entail offences and penalties. In any case, can the Act separate the child from his parents by coercive methods. All laws mandatorily require strict implementation of the best interests and welfare of the child. Is the Government questioning adhering to this fundamental rule? The child, a silent victim, may face embarrassment all his life.
It is not for the State to decide modes or age of parenthood. It is the prerogative of the parents to have children born naturally, by surrogacy or by IVF treatment. Under the Indian Constitution, the State cannot interfere. Examination of medical reports, birth records and IVF treatment cannot be demanded by the Government. It would amount to being a gross invasion of rights of privacy, which are a part of right to life under the Indian Constitution. Democratically, these rights are sacrosanct and inviolable.
Among other things, the Act was made to address issues of reproductive health. If medically, the commissioning parents were fit, healthy and safe in the professional opinion of medical specialists, the Act ought to support, aid and abet use of IVF. If in the wisdom of Parliamentarians, age violation is directory, but not mandatory, why is the Government bothered. Hindu Marriage Act, too prescribes age of marriages. However, violation of age limits does not entail invalidity of marriage. Discretion, administrative wisdom and better part of valour demands that parents be left alone. Questioning in the public domain is embarrassing, violates privacy and unnecessary admonitions. The subtle acts of questioning are more damaging. No offence or penalty in the end, is causing more harm and humiliation. It must be stopped.
*The author, a legal analyst, a lawyer, an alumni of SOAS, London, is an IAFL Fellow. anilmalhotra1960@gmail.com
