Guest Column: Age, surrogacy and privacy

Media reports highlight a late Punjabi singer’s parents having a child through in-vitro fertilisation (IVF) beyond the age limit 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 gynaecologists, 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. The Union 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 through IVF or adoption cannot have different age requirements for parents to don the mantle of parents. Parliament made laws which 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. 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. A nine-judge 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. The 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, question the age of parents by written communications and put them in public domain to violate these rights.
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. 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. 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? The 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.
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(The writer is a Chandigarh-based lawyer and author. Views expressed are personal)