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Motherhood is a joy cherished through natural conception and in case of infertility accomplished by substituted reproduction called as Assisted Reproductive Technology (ART). One such ART technique in begetting a genetic child is through Surrogacy[footnoteRef:2]. Though in India, infertility rate is increasing at an alarming speed, the Country as a matter of Public Policy has taken a rigid approach in banning Commercial Surrogacy and allowing only Altruistic form of Surrogacy.
Global Scientific advancement in the reproductive sector coupled by Machine Learning has paved the way for a future sect of Surrogacy through the aid of Artificial Intelligence (AI) which aims at giving 100% accurate results saving Surrogates from the failure, repetitive & painful IVF procedures. The most complicated job in IVF (In Vitro Fertilization) process is to successfully characterize and identity the most viable Oocytes or Embryos by human agencies. AI is been used for embryo or Oocyte scoring selection through Pre-implantation genetic diagnosis (PGD). [3: . Virtus Health Group based in Australia takes help of AI driven tool IVY which predicts the likelihood of a viable pregnancy from transfer of an individual embryo in a woman undergoing IVF https://www.ivf.com.au/fertility-treatment/ai-in-ivf ]
In the reproductive field, the role of AI is to assist health service providers by assembling inputs on creating a healthy baby by using optimal Surrogate[footnoteRef:4]. AI plays a pertinent role in IVF Surrogacy (through Gestational Surrogate/ Carrier) wherein machines imbibed with AI screen human micro biome[footnoteRef:5] to design most healthy babies free from gene defect/s. AI is been actively used in western countries by IVF / Fertility treatment Centres to carry out successful implantation of embryo into the Uterus of a Surrogate which sets the ground for critical first stage of a successful pregnancy. Through IVF Surrogacy aided by AI, many childless couples have the joy of having their own genetic child when all sorts of ART treatments/ methods fail to yield result. [4: . Flourish innovative tech wellness Company takes help of AI driven personal wellness tool FLORA which provides complete analysis of customized food selections specific to the Surrogates. https://medium.com/uxatcomdes/a-parents-guide-to-ai-driven-gestational-surrogacy-80316867a8fb (last visited on 4th Feb 2019)] [5: . Human micro biome means the full array of microorganisms (the micro biota) that live on and in humans and, more specifically, the collection of microbial genomes that contribute to the broader genetic portrait, or met genome, of a human. https://www.britannica.com/science/human-microbiome ]
At this juncture where Surrogacy is surrounded by unresolved ethical and legal issues, IVF Surrogacy coupled with AI assistance through gestational carriers can be perceived as a boon for intending couples[footnoteRef:6]. [6: . Section 2(r) Ibid.1 intending couple means a couple who have been medically certified to be an infertile couple and who intend to become parents through Surrogacy.]
Legality of AI in Gestational Surrogacy through IVF
India
Indian Parliament (Lok Sabah) passed The Surrogacy (Regulation) Bill, 2018, prohibiting commercial Surrogacy as unethical and created barriers for couples within the waiting period[footnoteRef:7], LGBT, single parent, live-in relationship couples, couples, couples with undefined infertility issues, couples blessed with single child and who cant afford second child due to various medical issues to opt for Altruistic Surrogacy. However, the Act permits Gestational Surrogacy if the same is done by a close relative without any monetary benefit apart from the necessary medical expenses incurred pre-during-post-delivery[footnoteRef:8]. [7: . As per the Bill 2018, couples unable to conceive within 5 years of unprotected coitus are only eligible for opting Altruistic Surrogacy as a means of begetting their genetic child. ] [8: . Section 2(b) Ibid. 1]
In India, AI in Reproductive technology area has not been vetted legally to bind key players in the market Intending Couples: IVF Centres: Gestational Surrogates. As per the Bill 2018, sex selection in any form for Surrogacy is punishable as per the Pre-Natal Diagnostic & Techniques (Regulation & Prevention of Misuse) Amendment Act 2002[footnoteRef:9]. The Act 2002 restricts use of AI mechanism as sex selection tool but permits AI use for embryo screening[footnoteRef:10] if conditions under Section 4(3)[footnoteRef:11] arise. [9: . http://www.ncpcr.gov.in/view_file.php?fid=434 ] [10: . Section 4(2) of the Pre-Natal Diagnostic & Techniques Regulation & Prevention of Misuse) Amendment Act 2002 ] [11: . Section 4(3) Ibid. 2]
In order to tag AI into IVF, no specific legislation governs IVF procedures and hence they follow guidelines laid down by The Indian Council of Medical Research (ICMR)[footnoteRef:12]. The Nation is silent on liability and accountability issues arising in case of medical negligence/ wrong diagnosis/ data entry error through which AI mechanisms function. Lack of adequate and specific data privacy laws to protect and secure data in digital space is leading to exploitation of the same for commercial purposes. [12: . Chapter 3 of the ICMR guidelines deals with Code of Practice/ Ethical Consideration & Legal Issues, https://www.icmr.nic.in/sites/default/files/guidelines/Guidline_content.pdf ]
Western Countries
AI has paved way for revolution in the healthcare sector primarily in reproductive section in countries like Australia, America giving rise to patient privacy and accountability in case of breach. In European Countries, General Data Protection Regulation (GDPR)[footnoteRef:13] permits a patient to delete his personal data under special circumstances and entitles him to huge compensation in case of breach. Developed countries like UK[footnoteRef:14], Australia[footnoteRef:15] have their laws in place to deal with human data in digital space. USA[footnoteRef:16] relies on combination of legislation, regulation and self-regulation rather than governmental intervention alone. [13: . Data Subject Rights – Right to be Forgotten under the GDPR, https://eugdpr.org/ ] [14: . Based on the model of EU GDPR, UK has enacted Data Protection Act 2018 focusing more on Data Subject Rights. ] [15: . Privacy Act 1988; Federal privacy Act 1988; Health Privacy Principles; Information privacy Act 2009 (Queens land) ] [16: . Privacy Act 1974; Privacy Protection Act 1980; The Gramm-Leach-Bliley Act 1999; The Health Insurance Portability and Accountability Act 1996; The Fair Credit Reporting Act 2018.]
AI & Infertility issues
AI through machine learning/ data mining and advanced analytics acts as a guide for medical practioners in the health care sector. It assists Embryologists to analyse embryo quality and can be a useful pre-screening tool to identify viable embryos before implantation saving the cost of Ovarian patients undergoing IVF. It also protects Surrogates from undergoing repeated IVF procedures reducing the risk of intending couples abandoning surrogate child with genetic disorders/ abnormalities. AI inbuilt Pre-implantation of Genetic Diagnosis (PGD)[footnoteRef:17] technic can be used to identify over 1500 inherited single gene disorders and the predictions are 99% accurate, the same can be taken into serious consideration by medical experts. [17: . The use of genetic analysis in the course of vitro fertilization to ensure that a baby does not possess a known genetic defect of either parent https://medical-dictionary.thefreedictionary.com/preimplantation+genetic+diagnosis ]
Through IVF Gestational Surrogacy aided by AI, many couples with implantation failure, advanced maternal age, history of recurrent miscarriages can have the joy of having their own genetic child without any physical or mental traumas. AI mechanisms can be used at the basic level to deduct infertility ratios in the couple and the same can be cured through medications solving infertility issues to some extent.
Suggestions/ recommendations
- Re-frame laws relating to ART to meet emerging challenges in the reproduction sector,
- Promote medical artificial intelligence technology to reach resource poor settings in remote areas,
- Encourage R & D in AI related public healthcare sector at the National level on the model of IBM Watson and Manipal Hospitals[footnoteRef:18]. [18: . Manipal Hospitals has partnered with IBM for utilizing Watson software at its Oncology department. The Machine assists doctors in diagnosing and providing treatment to cancer patients. https://watsononcology.manipalhospitals.com/ ]
- Frame Intellectual Property/civil/ criminal liability issues with respect to privacy, data access, data security, confidentiality, ownership and informed consent in case of breach by machine technology.
- Set up Special Courts to address technical issues related to AI and ART.
- Create awareness on PGD to intending couples suffering from chromosomal/ genetic defects which could pass on to their offspring.
- Lay down regulatory mechanisms to promote end-to-end human monitoring on machine learning to avoid biased data input resulting in biased decision by the system.
Conclusion
We always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next ten [19: . Bill Gates (1996) https://www.internationalsos.com/client-magazines/in-this-issue-3/how-ai-is-transforming-the-future-of-healthcare ]
AI in reproductive healthcare is really a boon rather than a bane. Keeping in mind alarming infertility ratio and legal prohibition on certain forms of ART practices, it is advisable to rely on this Machine Deep Learning in solving problems of childless couples. Intending Couples who are trying to conceive can be saved from unsuccessful, recurrent IVF cycles, financial, physical and even emotional pressure. As and when the Society marches towards technology, the laws need to be updated to stand as a strong fort to safeguard people from its misuse or pave the way for benefits to the aggrieved class.
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