Policy as a Discourse: An Exploration of Assisted Reproductive Technology Regulations in India

Suparba Sil[1]

[1] Suparba Sil is a doctoral candidate at the Centre of Social Medicine and Community Health, School of Social Sciences, Jawaharlal Nehru University.
Email: suparb81_ssh@jnu.ac.in

Title: Policy as a Discourse: An Exploration of Assisted Reproductive Technology Regulations in India
Author(s):Suparba Sil
Keywords:Reproductive health, health policy, assisted reproductive technology, anticipatory governance, political economy
Issue Date:15 February 2024
Publisher:IMPRI Impact and Policy Research Institute
Abstract:The paper will attempt to explore how policies in the context of Assisted Reproductive Technology (ART) act as means of anticipatory governance, controlling the mass population by restraining, excluding, and discriminating against them through ever-changing guidelines. The paper takes off from the premise that policies are never neutral, therefore necessitating the need to understand them within the socio-political, historical, and economic context, within which they have been formulated. In this context, the paper explores policies operating as a discourse, constituted by the state within the political economy of health interventions. The discourse of ART in India is understood in the context of this paper as being influenced by notions of ‘modernity’ and ‘development’, the history of innovation in ART around the world, while at the same time being impacted by age-old traditions which can be traced back to Hindu texts. The paper attempts to explore the dialectical relationship between tradition and modernity in the Indian ART industry, operating within the framework of ‘governmentality’, through essential debates that have emerged out of the changing ART policies over the decades.
ISSN:2583-3464 (Online)
Appears in Collections:IPRR Vol. 2 (2) [July-December 2023]
PDF Link:https://iprr.impriindia.com/wp-content/uploads/2024/02/PP2_Policy-as-a-Discourse_Suparba-Sil_IPRR_V2I2_July-December_2023-1.pdf

(July-December 2023) Volume 2, Issue 2 | 15th February 2024
ISSN: 2583-3464 (Online)

The paper will attempt to explore how policies in the context of Assisted Reproductive Technology (ART) act as means of anticipatory governance, controlling the mass population by restraining, excluding, and discriminating against them through ever-changing guidelines. The paper takes off from the premise that policies are never neutral, therefore necessitating the need to understand them within the socio-political, historical, and economic context, within which they have been formulated. In this context, the paper explores policies operating as a discourse, constituted by the state within the political economy of health interventions. The discourse of ART in India is understood in the context of this paper as being influenced by notions of ‘modernity’ and ‘development’, the history of innovation in ART around the world, while at the same time being impacted by age-old traditions which can be traced back to Hindu texts. The paper attempts to explore the dialectical relationship between tradition and modernity in the Indian ART industry, operating within the framework of ‘governmentality’, through essential debates that have emerged out of the changing ART policies over the decades.

Introduction: Policy as a Discourse

Policies in the context of this paper, have been understood as a discourse in itself operating through state-sanctioned acts and bills. Before delving into the critical analysis of ART policies in the last two decades, it however becomes essential to conceptualize policies as operating within the discourse of the state. The state, following Foucault’s notion of governmentality, operates through the production and sustenance of discourses. The state manifests its power through modes of anticipatory governance, which include policies and other such regulations. The consistent production of the discourse ensures that the subjects are produced within the discourse (Foucault, 1991). Such tactics ascertain the legitimacy of power, as the subject (whose consent has been manufactured) starts perceiving the mechanisms of the discourse as normative.

Grindle (1980) elaborates on how the implementation of policies in Third World countries (like India) is marked by scarcity of resources, political participation, limited accessibility, and extreme competition. Demands or suggestions are representative of the interests of social groups which are usually made at the output stage.  It is difficult for demands to be put forward in the formulation stage because of the lack of sturdy aggregate structures in third-world countries. Additionally, there are problems of dispersed political membership, lack of leadership, and ineffective interest groups that are unable to make a case for their demands. Despite the need for responsive policies, the state usually employs elite planning bodies with the task of formulating the policies, thus protecting them from pressure from interest groups and open debates and critiques at the stage of formulation (Grindle, 1980). This is often done to manifest the governmentalization of the state through a centrality of authority. The neutrality and need for responsiveness of interventions are thus sacrificed in the face of centralization of the state’s authority.

Foucault (1991) notes how the example of the Machiavellian Prince elaborates on notions of centralization of power and governmentality. “The prince stood in a relation of singularity, and externality, and thus of transcendence to his principality”. The objective of the exercise of power by the prince was to reinforce, strengthen, and protect his principality. Following Foucault (1991), the essential element in establishing the art of governing is the introduction of the economy into political practice. Governing a state signifies the ability to set up an economy at the level of the entire state, and exercising the same towards its inhabitants. The manner in which the state controlled the disbursement of resources for intervention programs points to the establishment of a centralized structure of power, unresponsive to the needs of the inhabitants. The interventions are formulated at the central level, keeping sovereignty as the ultimate goal. Following Foucault (1991), sovereignty entails the common welfare of the citizens and their salvation. This requires all subjects to obey the laws and practice the assigned trade (as designated through structural arrangements). Such a state however requires the absolute obedience of the subjects. So, then, what characterizes sovereignty, is the end of sovereignty.

In the context of ART, the policy regulations that form part of the state’s discourse govern, foster, and constrain the adoption, and dissemination of ART in a particular society. The history of ART in India can be understood within the above theoretical framework, wherein policies and laws implemented have often marginalized segments of the population in order to benefit those governing. However, before delving into the historical trajectory of ART in India, it becomes essential to trace the evolution of Assisted Reproductive Technology, to be able to understand the apprehension behind technological innovations that have necessitated various modes of anticipatory governance, to protect and maintain the principality of the state.

Innovations in Assisted Reproductive Technology: A Historical Trajectory

The history of innovations in the field of reproductive technology takes us back to the fictional roots of Frankenstein’s monster that made its way into Europe’s popular discourse in the early 1900s. With the census of 1911 including the birth component and the debate on birth control technologies in 1923, fertility and technological solutions to the same became very much a part of the conversation around the turn of the 20th Century (Conley, 2018). The end of the Second World War further ushered in new debates on fertility, led by Daniel Petrucci who fertilized a human egg in a test tube in 1968, and innovations of Patrick Steptoe and the Rabbit in 1970. The reactions of the Vatican to these instances also further highlighted these innovations in reproductive health.

A significant turn of events took place after the first success of IVF as a procedure in 1969, and by the time of the birth of the first IVF baby Louis Brown, the perspective towards reproductive technologies had undergone a significant transformation (Conley, 2018). The ongoing conversations about the implications of these technologies on society however necessitated anticipatory governance in the forms of organizational bodies and policy regulations. Conley (2018) highlights the importance of anticipatory governance wherein societies envisage the implications of new and emerging technologies, much before they come into existence. Anticipatory governance operates through organizational bodies that initiate socio-technical contracts through which societies envision and thereafter organize the construction, initiation, or application of new technologies (Conley, 2018). Bodies such as the Human Fertilization and Embryology Authority (1991) were one such instance of anticipatory governance that assumed imaginative capacities for anticipatory governance of scientific inventions in the area of assisted reproductive technology, in Europe. Within the conceptual framework of anticipatory governance, the significance of regulatory constructs such as policies attain the required clarity.

Assisted Reproductive Technology in India

Assisted Reproductive Technology (ART), consists of a gamut of practices ranging from cryopreservation of eggs to removal of gametes for IVF and surrogacy procedures. The birth of the first scientifically documented test-tube baby, Harsha, ushered in a new era of assisted conception in India in 1986 (Bharadwaj: 2016). Since then, the ART industry in India has seen a boom with the introduction of Invitro Maturation (IVM) in 2003, while the first successful pregnancy through frozen oocytes took place in 2009 (TOI: 2003). In the years after globalization and liberalization, India has witnessed an exponential growth of ART clinics and hospitals offering a wide variety of services such as egg donor treatment, donor embryo treatment, etc. With an estimated number of 800 clinics, India occupies an important position in the world’s ART map (Malik, 2016). The period from 2007 to 2009 has seen an increase in the number of artificially prepared cycles, using hormones, for frozen thawed embryo transfers. The numbers for the corresponding years after 2009 have increased from 1525 to 2678 (Malhotra et al., 2013).

Healthcare Policies in India and the Adoption of Assisted Reproductive Technology

The adoption, dissemination, and domestication of Assisted Reproductive Technology in India can be traced back to the predominance of Western medicine, a consequence of colonial rule in India. The hegemony of Western medicine however truly occurred during the post-independence decades, under the Nehruvian regime. The hegemony of Western medicine in India (that has facilitated the market for ART in India) therefore needs to be explored within the larger historical, social and political context. The cultural authority and hegemony of bio-medicine were introduced by the colonial state and later found manifestation within the Nehruvian discourse of science and development.

An examination of nationalist perceptions, policies, and programs in healthcare in the post-independence decades points to the fact that they were not very different from those of the colonial state (Khan, 2006). The conformity to the Western systems of medicine, through its application to Indian healthcare services, was in itself a step towards modernization. Following Khan (2006), the zeal for conformity to the Western system of narrative was so emphatic that it subsumed any resistance by indigenous systems of medicine for the existence of a plurality of medical systems. The Nehruvian government framework of ‘science’ and ‘progress’ therefore went beyond the entrenchment of the Western system of medicine as superior, subordinating Indian systems of medicine such as Unani, Ayurveda, etc. By the 1950s, the support for the Western systems of medicine became part of the Nationalist agenda.

Soon after, discussions about the idea of a uniform health policy across the country, based on scientific methods were deliberated upon. The two decades after independence witnessed the development of Five-year plans, in order to evaluate the health schemes and policies implemented during the years that followed Independence. Based on the recommendations of the Bhore Committee, the healthcare policies in the post-independence period assumed the holistic responsibility of curative and preventive measures as a step towards safeguarding the health of the nation.

The immediate years after Independence also saw the formation of five-year plans that focused on vertical control programs (Bajpai et al., 2013) and the establishment of a three-tier rural health infrastructure, which led to the development of the first primary health center (PHC) in 1952, as well as the initiation of departments of preventive and social medicines in medical colleges as an attempt to introduce a social, cultural and economic context to the practice of medicine (Banerji, 1985). In the next four decades, the five-year plans went through several transformations in terms of goals and approach, ushering in the Minimum needs program in the 1970s, which aimed to achieve more efficient service delivery.

However, the ideological transformation that led to the growth of the private healthcare sector, of which assisted reproductive technology is a part, was brought about after the Health Policy of 1983, which was structured after the Alma Ata Declaration of 1980. The 1990s witnessed the formulation and implementation of structural adjustment policies that led to the initiation of Health Sector Reforms (HSR) in India. The health sector reforms, funded by the IMF- World Bank called for reductions in health sector investments and fostered the growth of a private market for health services premised on user fees, private investments in public sector hospitals, and techno-centric public health interventions (Bajpai, 2013). The millennium decade furthered the growth of the private sector in healthcare through the National Health Policy of 2002, which encouraged a free market economy as opposed to socialist policies, in the health sector.

Thus, the healthcare sector in the years leading to the millennial decades reflected the policies of liberalization, fostering a transnational flow of technology, that permanently changed the character of Indian Healthcare. Liberalization led to a dissolution of national boundaries that gave rise to global markets for labor, manufacturing, service, etc. Following Bisht et al. (2012), liberalization paved the way for foreign investors, who were attracted by the large English-speaking workforce and the low costs. The healthcare sector in India expanded significantly as a direct consequence of liberalization and by the turn of the 20th century, India had become a growing Asian market for medical tourism, e32healthcare insurance, telemedicine, medical equipment market, and pharmaceuticals among others.

Liberalization in the 1980s, which paved the way for private investors also marked the beginning of an expanding private sector. The 1990s India was characterized by collaborations between Indian companies and multinational corporations such as Gleneagles and Royalton Medical Management, that facilitated the transnational flow of medical technologies.  

Following Chakravarthi, Bisht et al (2012) point to the role of the International Finance Corporation in promoting an increasing role of the private sector in Indian healthcare. Such global partnerships that resonated with the new global India, created a niche market for medical technologies starting from stem cell to gamete donation and surrogacy. The transnational flow of technology, fostered by the process of liberalization and globalization has thus ensured the availability of advanced technologies, which the Indian healthcare market did not previously have access to.

The transnational flow of medical technology facilitated by private partnerships has led to the creation of demand for the same technologies, creating a market for these technologies. The introduction and dissemination of ART technologies need to be understood within the context of policies formulated during the decades of liberalization and globalization that fostered the growth of the ‘cosmetic’ use of technology, leading to the proliferation of a consumerist type of science.

Policy Transformations and Emerging Debates in Assisted Reproductive Technology Industry in India

The post-millennial decades have witnessed many transformations in the regulation and governance of assisted reproductive technology in India. However, one thing has remained common with regard to the functioning of ART in India. The fact that ART as a private healthcare sector endeavour, should be operating with the notion of benefiting only those who can afford to opt for it. The regulations operating to govern ART have somewhat reflected the same notion. Post implementation of the National Health Policy of 2009, that have actively promoted medical tourism, legalizing Public Private Partnerships through state subsidies, bodies have emerged as commodities for the exchange of economic capital. Biotechnology has become the means and the site for the fragmentation of bodies into individual parts, to be exchanged for remuneration, making resources out of them (Marwah, et al., 2011). National guidelines for the Accreditation, Supervision, and Regulation of ART clinics in India were published by ICMR and the National Academy of Medical Sciences in 2005 in an attempt to maintain a national registry of ART clinics in India.

However, because of the implementation gap as well as the lack of legal binding, ART clinics have largely been running according to the whims, perceptions, compulsions, and incentives of individual providers. In addition, clinics have exploited the lack of legality, indulging in practices such as sex selection, multiple embryo implantation, etc. Clinics have also been known to divulge scanty information to the patients about their treatment, often not even offering counseling services to the commissioning couples, as mandated by the policy. In a nutshell, the 2010 draft of the ART bill has fostered the growth of the ART business, leaving ethical questions unattended. The 2014 bill attempted to bring about regulations with regard to reproductive rights but failed to bring about uniformity in the functioning of ART clinics.  The 2017 bill again attempted to regulate the functioning of ART clinics, by stipulating that no ART clinic or bank shall practice, or use premises without registration under the National Registry of Assisted Reproductive Technology (GOI: 2017).

However, in spite of so many protocols over the years, ART clinics have been allowed to function without restrictions and standardized protocols. Jamwal (2022) notes that the ART Act of 2021, preceded by the ART Bill of 2020, has specifically stipulated the registration of ART clinics under the national registry as a necessity. The purpose is not only the regulation of ART clinics but the generation of big data, which will guide research and policy, in the years to come.

Grindle (1980) notes how the administration of a particular program is dependent on actors who control the process of resource allocation. Needless to say, state control over resource disbursement was supported by the upper classes of rich entrepreneurs, rich farmers, managerial and bureaucratic personnel, and the organized sections of the working class. Thus, what we have at hand is the consistent distribution of benefits by the state to individuals and small groups, ironically within the garb of a mixed economy approach. The discourse of the state with regard to ART has been capitalist, allowing the clinics free reign, without standardized protocol and uniform rates, for the unfettered growth of the ART industry in India. Even though the 2021 act stipulates strict guidelines for clinic registrations under the National Registry, the level of implementation remains yet to be seen.

Reproductive Rights and Policy Implication in ART

Reproductive rights in the context of ART have been a contested issue, over the years. As per the 2010 draft of the ART bill, a woman was allowed to donate her oocytes up to six times in her lifetime, with three months of intervals in between. However, there was no system to record and ensure that a clinic was not allowing a donor to donate oocytes after the sixth time. Additionally, given every cycle might not lead to successful oocyte donation, the number of cycles that a woman should be allowed to go through was also not specified by the 2010 bill. This meant serious health risks for women at the procedural level, given the protocols set out by the 2010 bill (Jamwal, 2022).

The 2010 ART bill was revised to formulate the 2014 bill. Following from Kusum (2016), the 2014 bill was found to be significantly lacking when it came to the issue of reproductive rights. The 2014 bill took away the reproductive right of the surrogate mother to opt for abortion, vesting legal rights of abortion with the commissioning mother. Kusum (2016) notes that in a series of landmark cases namely, Suchitra Srivastava v. Chandigarh Administration or Bhupinder Kumar v. Angrej Singh, The Supreme Court has upheld the right of the woman to seek abortion, which falls under the dimension of ‘privacy’ and ‘personal liberty’ under the article 21 of the Constitution.

The provision of the ART Bill 2014 therefore, is not only arbitrary but also is in direct opposition to the laws of personal liberty and privacy (Kusum, 2016). While revisions have been made with regard to other rights of surrogates, such as age limit, marital status, etc, the right of abortion of the surrogate still rests with the commissioning couple, bringing the exploitation debate to the forefront. While it is true that surrogates are being paid for renting their wombs, it becomes essential to locate the health risks of women within the legal provisions of abortion. The discourse of the state, in this regard again is an attempt to serve the client- the commissioning couple, who in this regard is the driver of economic growth.

Sexuality and the Re-assertion of the Heteronormative Family

Another issue that deserves significant attention, is that even though ART in so many ways separates biology from reproduction, the 2010 draft ART bill was ambiguous about access to ART by gay couples (Marwah et al., 2011). Following from Kusum (2016), the ART bill of 2014 was even more discriminatory, because it placed limitations on single individuals and same-sex couples from opting for surrogacy. Kusum (2016) notes that in the judgment B.K Parthsarthi v. Government of Andra Pradesh, the right of reproductive autonomy or procreative choice or decision-making was categorized under the ‘right to privacy’, thereby making this provision of the Bill arbitrary, and discriminatory. The provision of the 2014 Bill therefore not only disrupts the reproductive right to privacy guaranteed by the constitution but also negates the landmark judgment of the Supreme Court, which de-criminalized gay sex in 2009. Even though the state introduced a separate bill for regulating surrogacy in 2017, the provisions of disallowing single parents and homosexuals from accessing surrogacy have not changed in the recent Act passed in 2021 (GOI: 2021).

The discourse of the state in this regard can be understood to be a reassertion of heteronormative notions of a family, which can be traced back to the ancient Hindu scriptures. The cultural conceptions of fertility can be traced back to the gendered ideas rooted in the ancient Hindu Vedic texts. Much of the Vedic period was organized along the ideological premise that the woman provides the field or the ‘kshetra’ and the man provides the ‘seed’ (Bharadwaj, 2016). Further, according to the cosmic division of labor, the task of sowing the seed belongs to the husband and the task of nourishing the seed belongs to the wife. Bharadwaj (2016) notes that while the task of the woman is to contribute blood for the maintenance of the fetus, the seed contained in the semen is said to have a relationship with blood. The social identity of the child is thus marked by the father’s blood (Bharadwaj, 2016).

Exploitation vs Livelihood

Two debates have to be considered in order to understand this debate, the first one being banning commercial surrogacy for foreign nationals. Medical tourism in India has been a major driver of economic growth, the significant aspect of it coming from the demand for Assisted Reproductive Technology. Foreign nationals were allowed to access ART facilities in India, including surrogacy from 2005 to 2014. From the year 2014, foreign nationals have been prohibited from accessing surrogacy in India, following legal debates such as that of baby Manji Yamada v. Union of India and others, and exploitation of children, etc (Narayan et al., 2023). On the face of it, it seems like a welfarist stance on the part of the Indian state, done for the protection of children. But by banning foreign nationals from accessing surrogacy, the state has also taken away a major source of employment for Indian nationals, whose livelihood depended on this.

The other significant debates which mark a departure from the previous debates is the ban on commercial surrogacy in India. Commercial surrogacy was allowed in India for the longest time till the recent Surrogacy Act of 2021 banned it on the grounds of it being exploitative labor towards women (Narayan et al., 2023). However, the ban on commercial surrogacy has been a matter of intense debate. Passive resistances have resulted in a shadow market for surrogacy, and illicit underhand dealings, where surrogate women are exploited to a greater extent than before. Furthermore, the ban on commercial surrogacy is a direct violation of Article 19(1), putting a restriction on the bodily autonomy of consenting adult individuals to earn their livelihood (Narayan et al., 2023).

Thus, while on one hand, the state’s recent measures to regulate surrogacy might come across as altruistic and welfarist, it could also be perceived as a distribution of benefits by the state to individuals and small groups belonging to the upper echelons of society, for whom such measures will not lead to a shortage of livelihood opportunities.

Conclusion: The Myth of the Altruistic State

The above-mentioned debates with regard to ART point to the fact that measures of intervention programs have not been formulated keeping all sections of the population into account. The discourse of policies around ART bear semblance to the age-old heteronormative structures of family, negating modernity while standing on the very foundation of it. Assisted reproductive technology, standing firm on scientific innovations brought about by modernity, has been somehow subverted in the Indian context to superimpose tradition as the normalized discourse. The interventions have prioritized agendas suited to the state’s needs at given points being entirely unresponsive to the needs of the inhabitants.

Chatterjee (2004) while discussing the nature of sovereignty in mass democracies around the world, makes a distinction between citizens and populations. Chatterjee (2004) notes that while citizens inhabit the domain of theory, populations inhabit the domain of policy. As opposed to the concept of citizen that carries with it the ethical connotation of participation in the sovereignty of the state, the concept of population is synonymous with a set of rationally manipulable instruments in order to reach out to large sections of the population that are the target for policies. Chatterjee (2004) quotes Foucault to elaborate on the character of contemporary regimes that operate through the governmentalization of the state. Such a regime secures legitimacy not by the participation of the citizens but by the claims of providing for the well-being of the population.

Chatterjee (2004) theorizes the concept of citizens within the category of civil society, while the population is categorized as ‘political society’. For Chatterjee (2004), civil society is the bourgeois society, the upper echelons of society who are part of the existing institutions, and whose social locations can be identified. Political society on the other hand consists of individuals whose social locations are temporary and shifting, those who are the beneficiaries of the policies. Chatterjee (2004) argues that the number of benefits received by members of the political society is almost always dependent on the calculations of political expediency.

As Grindle (1980) notes, even though there is an existence of pressure groups that may often influence policies, it is always at the stage of output that the demands can put forward. Therefore, the civil society in the context of ART has retained the entire power at the formulation stage, where objectives at each stage have been made in mind interests of political expediency, and governmentalization of population and economic progress.


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