The ART Act, 2021 and the subsequent ART Rules, 2022 may lead to the violation of the privacy of the commissioning couple seeking treatment through donor gametes. Section 12(ii) of the ART Rules states “The intending couple shall sign an affidavit to be sworn before Metropolitan Magistrate or a Judicial Magistrate of first class giving guarantee as per the section 22(4)(ii) of the Assisted Reproductive Technology (Regulation) Act, 2021”. Effectively, the purpose of the above mention section is that the intending couple has to sign a declaration cum affidavit before Metropolitan Magistrate for providing guarantee to the donor of treatment in case the donor faces medical issues during retrieval of oocytes and post retrieval for the next twelve months. The intending couple guarantees the donor by providing insurance to the donor. The real issue is that the intending couple has to go to the court of Metropolitan Magistrate to sign a declaration cum affidavit before the Metropolitan Magistrate. It is a serious issue as it may violate the right to privacy of the intending couple as they have to sign the affidavit before the Metropolitan Magistrate where trial of criminals are taken up by the court. In case the signing of the affidavit by the intending couple takes place in the chamber of the Metropolitan Magistrate then too the involvement of the advocates, the Metropolitan Magistrate staff and registrar is not avoidable. Also, the court where the declaration by the intending couple is taken up has criminal elements and it is likely that the infertility of the intending couple may be very well exploited by these criminals. The intending couple may be exploited by these criminals by threatening the intending couple of getting revealed before the child that one of them is not the biological parent and the child was born through donor gametes. Also, the commissioning couple might be dissuaded to go for donor treatment for the fear of being exposed in the public. The Associations of IVF treatment should take up the issue of privacy of the intending couple with the regulators and seek to introduce online declaration or the usage of Aadhar linked biometric declaration which will serve the purpose of declaration. The Aadhar linked biometric declaration will be more prudent and genuine as chances of manipulation by the intending couple will be completely eliminated.
Madhur Rai
Advocate, Mumbai