Introduction: AI and the Future of Healthcare
Artificial Intelligence (AI) is transforming healthcare worldwide. From early cancer detection to robotic surgeries and predictive analytics, AI is now a critical tool in hospitals and clinics. In India, AI is also entering the sensitive domain of reproductive medicine, particularly in in-vitro fertilization (IVF) and surrogacy procedures. While this promises improved success rates for childless couples, it also raises a crucial question: when AI goes wrong, who bears the liability?
This question is at the heart of medical law, and it is one that every healthcare provider, policymaker, and medical law lawyer must grapple with.
Understanding Liability in AI-Driven Medicine under Medical Law
AI applications in healthcare range from diagnostic support to treatment planning. In reproductive medicine, AI can:
- Analyze embryos for genetic viability.
- Predict pregnancy success rates.
- Assess surrogate mothers for medical and psychological fitness.
- Forecast potential complications during pregnancy.
While these innovations enhance efficiency, they are not error-proof. Algorithms may produce false positives, overlook risks, or rely on biased datasets. If a surrogate mother is wrongly declared fit for pregnancy or an embryo with genetic risks is implanted, the consequences can be devastating.
Surrogacy Laws in India and the Role of AI
India regulates surrogacy under the Surrogacy (Regulation) Act, 2021 and assisted reproduction under the ART (Regulation) Act, 2021. These laws restrict surrogacy to altruistic arrangements and impose strict medical and legal screenings.
AI technologies are increasingly being used to:
- Screen surrogate mothers for physical and psychological health.
- Select embryos with the highest chances of survival and healthy development.
- Predict risks during pregnancy and delivery.
While the Acts provide frameworks for eligibility, they do not address the role of AI in these processes. For instance:
- If AI misclassifies a surrogate as healthy, leading to complications, can she claim damages?
- If commissioning parents lose money and time due to AI errors in embryo selection, what remedies do they have?
- How can clinics protect themselves against liability while still using advanced AI tools?
- Here again, the gap between technological progress and medical law becomes evident.
AI in surrogacy raises broader ethical and legal concerns:
- Informed Consent – Surrogates and commissioning parents must understand that AI is involved in decision-making. But how “informed” can consent be when even doctors may not fully understand the inner workings of complex AI systems?
- Bias and Discrimination – AI learns from past data. If that data reflects biases (economic, gender, or social), it may discriminate against certain surrogates or embryos.
- Privacy and Data Protection – Fertility clinics handle highly sensitive reproductive and genetic data. The Digital Personal Data Protection Act, 2023 offers some safeguards, but specific provisions for reproductive health data are still lacking.
- Unclear Accountability – Neither the surrogacy laws nor general healthcare regulations currently define who is responsible when AI errors harm patients or surrogates.
How a Medical Law Lawyer Can Help in AI and Surrogacy Disputes
As AI expands, the role of medical law lawyers becomes critical. They are not only advocates in litigation but also advisors shaping policy. Their expertise helps in:
- Drafting contracts between clinics, commissioning parents, and surrogates that allocate liability clearly.
- Advising healthcare providers on risk management and insurance against AI-related errors.
- Representing patients, surrogates, or families in cases of AI-induced harm.
- Engaging in policy advocacy to ensure that laws like the Surrogacy Act are updated to account for AI.
Without legal clarity, disputes may rise sharply, leading to delays in justice and mistrust in both medicine and technology.
Balancing Innovation with Legal Safeguards
AI has immense potential to transform healthcare, particularly in sensitive fields like surrogacy. By improving embryo selection and surrogate screening, it offers hope to countless families. Yet, every innovation comes with risks. Without proper legal frameworks, patients, surrogates, and even doctors remain vulnerable.
The pressing question—who bears the liability when AI fails in healthcare, cannot remain unanswered. Through updated medical law, careful regulation, and the expertise of a skilled medical law lawyer, India can strike the right balance: fostering innovation while protecting rights.
AI should be a tool of empowerment, not uncertainty. The law must evolve to ensure just that.Reference:
- https://foresightlaw.in/blog/surrogacy-in-india-constitutional-challenges-and-legislative-progress/
