The Government of India has decided to come out with a law to regulate the business of IVF and Surrogacy in the country. The proposed legislation was drafted by a team of experts from the field of medicine and law but has not been finalized and implemented till now. Formerly, ICMR guidelines, ART bill and home ministry’s order are regulating surrogacy policy in India. At present, winter session of parliament is passing two bills, which is , the ART Bill and the Surrogacy Bill.In this article we shall discuss in brief about these recently passed Bills.
Assisted Reproductive Technologies (Regulation) Bill was introduced in 2010 which was formulated considering growing number of surrogacy cases in India and its the challenges that the Surrogacy would face in the future, the Government of India has decided to come up with a law which would govern the surrogacy and ART in India in future. It provides for establishment of the National Board, the State Boards and the National Registry for the regulation and supervision of the assisted reproductive technology clinics and the assisted reproductive technology banks, prevention of misuse, safe and ethical practice of assisted reproductive technology services and for matters connected therewith or incidental thereto.A committee of experts has been set up and the said committee has now submitted a draft of the proposed bill to the Government of India. The said bill is still pending with the government and has not yet been presented in the Parliament. The proposed draft has taken into consideration the various aspects of surrogacy and has built in safe guards for both commissioning parents and to the surrogate mother.
Some of the features of this proposed bill are as under:
- Constitution of an authority at National as well as State level to register and regulate the IVF clinics and ART centers.
- Creation of a forum to file complaints for grievances against clinics and ART centers.
- Imposing duties and responsibilities on the clinics and ART centers.
- Regulations for sourcing, storage, handling, record keeping of Gametes, Embryos and other human reproductive materials.
- Placing rights and duties on Surrogate and commissioning parents.
- Imposing stringent penalties for breach of the duties and regulations under this Act.
For the first time in 2012 ,for the practice of surrogacy in India, the Union home ministry of India has issued stringent guidelines for visas being issued to foreigners seeking child or children from surrogacy procedure in India called Union Home Ministry Guidelines for Regulating the Practice of Commercial Surrogacy (2012).These guidelines for foreigners planning surrogacy in India came up in July 2012 following allegations that commissioning parents from abroad were cheating the surrogate mothers. There are also few reported cases that the children were ill-treated in foreign land and that they are not treated as citizens there. Surrogacy on tourist visas, which was not appropriate, so the ministry had decided and sent a circular to foreign embassies in July 2012, that such foreigners would be eligible to enter the India only on “medical” visas, if they fulfilled certain criteria formulated by home ministry. The circular was notified by the Foreign Regional Registration Office in Mumbai on December 17, 2012 and was subsequently sent to fertility clinics in India.A need of act to regulate commercial surrogacy was felt which led to the formulation of the present Surrogacy Bill. The Surrogacy (Regulation) Bill, 2021, provides for regulationof surrogacy services in the country, to prohibit the potential exploitation of surrogate mothers and to protect the rights of children born through surrogacy.
The essential difference between these two bills or laws are that The Surrogacy (Regulation) Bill relates to surrogacy, an infertility treatment, where a third person, a woman, is the surrogate mother. In ART, treatments can be availed by the commissioning couple themselves and it is not always necessary that a third person is involved.Under the Surrogacy Bill, there will be a National Surrogacy Board that will be involved in policymaking, and act as a supervisory body, and State Boards that will act as executive bodies. The Surrogacy Bill now has provisions to allow “willing woman” instead of “close relative” to become a surrogate mother, and proposes that widows and divorced women can also benefit from its provisions, besides infertile Indian couple .The Bill effectively excludes unmarried single women from the purview and prohibits them from becoming a surrogate which is very appreciable as it would eliminate the atrocious naked trust concept in surrogacy. The proposed insurance cover for a surrogate mother has been increased to 36 months from 16 months earlier. The bill aims to regulate surrogacy while prohibiting commercial surrogacy
As of now, The Surrogacy (Regulation) Act, 2021 received President Kovind’s assent after being passed by the Rajya Sabha with no opposition at all.However, The ART Bill 2021 is yet to be achieve the President’s assent after being passed by the Rajya Sabha with no opposition like the previous one.Hopefully it is only a matter of time till it receives the assent.Since the beginning of the Winter session and its ending in December 23rd 2021, these two Bills have been one of the most discussed Bills for being stagnated for more than a decade.
SUGGESTIONS AND CONCLUSION
In India, for commercial surrogacy business there is still no regulating system to enforce the law until there is a legal dispute. Additionally, the range of guidelines formulated by the government agencies have complicated commercial surrogacy arrangements, and as a result there are frequent custody battle between the surrogate and the intended parent, causing heart break for both parties as well as the child. Commercial surrogacy should be heavily regulated in order to protect the rights of the commissioning parent, the surrogate and the child born. There must be different law which should govern international surrogacy arrangement because new problems may arise related to citizenship and race of child and commercial surrogacy in India should be permitted in the benefit of the society at global level but only in consultation with the medical and medicolegal experts, religious teachers and the legal experts of different countries.
In its response to the Drafted Surrogacy Bill, SAMA Resource Group for Women and Health, Delhi has welcomed the initiative of the Union Ministry of Health and Family Welfare for making efforts to regulate the commercial surrogacy industry in the country and has found that it is inadequate in protecting and safeguarding the rights and health of women going for IVF techniques.The proposed bill has not defined the standard protocol for medical practice in respect to surrogacy and completely ignores the regulation of the third party agents.The Drafted Bill should make clear guidelines for them to regulate and monitor consultancies, surrogacy agents, surrogacy home operators, private agencies and tourism firms involved in offering and promoting ART and surrogacy services in India.The Bill should permit genetic surrogacy; a simpler and less invasive form of surrogacy and not restrict to the more complicated, expensive and invasive gestational surrogacy. The upper age limit for undergoing assisted reproductive technology procedure should be clearly defined under the Bill.The Bill should define the number of cycles a woman can undergo as a surrogate as the number of live births is not equivalent to the number of ART cycles and given the low success rates of ARTs, it often implies multiple cycles for successful outcomes, thus posing serious risks to the surrogate’s health. The Drafted Bill should clearly list the various health risks and adverse consequences of these technologies to surrogate mother and child, so there is no listing of the risks and adverse outcomes of these technologies for the child and the mother.This draft has not mentioned about consent(s) to be given before abortion, if abortion to be demanded by surrogate mother or intended parents. Moreover, the intended parents may demand or force her to follow a particular diet, religious rituals or lifestyle changes during pregnancy and keeping her under extreme medical observation till delivery and also keeping her away from her family and previous kids, these issues are violation of right and responsibilities of her to family. The pattern of payment to surrogates must be clearly stated in the Bill and should be in the best interests of the surrogate.The status of the child in case of death of the individual or couple commissioning surrogacy needs to be elaborated under the proposed Bill and foreign country to which commissioning parent belongs, must make legal party to take responsibility of a born child. All these conditions should be applicable not only in cases of trans-national surrogacy but also in cases of surrogacy for Indian individual or couple.
The above features are still dynamic in nature, but will take a long way in making the entire surrogacy procedure transparent and fair. The chances of any exploitation of the Intended Parents and Surrogate cannot be eliminated with mere introduction of the proposed bill without better implementation across the country must be needed.
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