In Oct 2008, the Supreme Court ruled that "commercial surrogacy is legal and an industry in India", making it a legally protected and viable option for international couples. Now after 12 years, surrogacy in India has become a debatable sector.
Compensation, age and consent of the surrogate mother – the three major factors to be considered in surrogacy bill. Winter session of parliament is close and everyone has crossed fingers for a benchmark decision on surrogacy in India. Surrogacy in India has always been a controversial subject with activists blaming foreigners for exploiting poor women.
Recently, Department Of Health Research (Health Ministry) V M Katoch said to a leading newspaper that the final draft bill is now lying with the law ministry and, after being cleared, will be presented before the cabinet for approval.
It is a clear hint that the most debated practice in India is on the lines of regularization. In past 12 years, India helped thousands of couples to have children but the recent turn of events has put the practice under the scanner. Tightening of laws is suggested by activists and doctors to make the process transparent. India now has only the guidelines the Indian Council for Medical Research (ICMR) released in 2002.
The Assisted Reproductive Technology (Regulation)Bill, 2013, it seeks to address issues like how many pregnancies can be allowed for a surrogate mother, the age of the mother and due compensation to be paid to her. The bill will also provide a framework for letting foreigners use Indian surrogate mothers.
In 2012, an Australian couple left behind one of the twins born to an Indian surrogate mother because they could not afford to bring up two children back home. Earlier in 2010, a German couple, Jan Balaz and Susan Lohle, had to wait for two years before they could take their twin babies home. Their twin sons, Nikolas and Leonard, were trapped in a citizenship limbo ever since an Indian surrogate mother gave birth to them in February 2008. The boys were refused passports by their parents` homeland because German nationality is determined by the birth mother. The issue was finally settled after a prolonged court battle.
According to a 2012 study by the Confederation of Indian Industry (CII), an estimated 10,000 foreign couples visit India for reproductive services and nearly 30 percent are either single or gay. In earlier versions - in 2008 and 2010 - the bill relied on contract law to establish a relationship between the commissioning parents and the clinic. In the current version, the bill states that a professional surrogate will be hired by a government-recognized ART Bank and not private fertility clinics, which is the current practice. The compensation, as per the 2013 draft, will be a private negotiation between the surrogate mother and commissioning parents.
- The Bill addresses all issues pertaining to ethics in commercial surrogacy.
- The Bill is only to help infertile couples and should act as a deterrent to commercial surrogacy.
The CII study estimated that nearly 10,000 foreign couples visit India for reproductive services and nearly 30% are either single or homosexual.
- However, the Surrogacy Bill will disqualify homosexual couples, foreign single individuals and couples in live-in relationships from having children through surrogate mothers in India. The law also imposes age restrictions on surrogate mothers.
- Homosexuals and foreign single individuals are barred from seeking surrogacy assistance in India.
- Other than this, many restrictions imposed are not encouraging for business.
In earlier versions—in 2008 and 2010—the ART Bill relied on contract law to establish a relationship between the commissioning parents and the clinic. In the current version, the Bill states that a professional surrogate will be hired by a government-recognized ART Bank and not private fertility clinics, the current practice.
- The compensation, as per the 2013 draft, will be a private negotiation between the surrogate mother and commissioning parents. Currently, IVF clinics decide the amount and pay the surrogate mother a portion.
Last year, Home Ministry laid down certain norms on surrogacy as an immediate attempt to define the contours ofsurrogacy activities in India,
- Home Ministry lays down conditions for grant of visa to foreign couples commissioning surrogacy in India
- Home Ministry has already announced that it will not give tourist visas to foreigner nationals coming to India for commissioning surrogacy, of which several cases have been reported.
- In order to ensure that the surrogate mother’s interests are protected, the Ministry said, such a visa may only be granted if certain conditions are fulfilled — the foreign man and woman must be duly married for at least two years.
- The Ministry will also insist that the Indian embassy or Foreign Ministry of the country concerned enclose an acknowledgement, along with the visa application, that the country recognises surrogacy and that the child/children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/children of the couple.
- Besides, the couple should produce a duly notarised agreement between the applicant couple and the prospective Indian surrogate mother. The Ministry has informed the Indian missions abroad that the commissioning couple needs to be told that they must obtain “exit” permission from the Foreign Regional Registration Offices before leaving India for their return journey.
Dr Neeraj Pahlajani
Obstetrician & IVF Specialist
(MS, DNB, FMAS, DRM - Germany)
MBBS - Lady Harding Medical College - New Delhi
MS - Obstetrics and Gynecology (PGI - Rohtak)
DNB - Obstetrics and Gynecology
FMAS - World Association of Laparoscopic Surgeons
DRM - Diploma in Reproductive Medicine (Germany)
Fellow in IVF & Embryology – (USA)
Pahlajani Test Tube Baby Centre
(Mata Laxmi Nursing Home)
Anupam Nagar, Near T.V. Tower, Raipur (Chhattisgarh) India
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