A law to regulate India’s multi-billion dollar assisted reproduction industry has been in the works for some time. The draft Assisted Reproductive Technologies Regulation Bill-2010 will be presented to Parliament this winter, and even many inside the ART industry are eager to see it come to fruition. The first-of-its-kind Bill to control and monitor cases of surrogacy in the country has been drafted by the Ministry of Health and Family Welfare, along with the Indian Council for Medical Research (ICMR) and has been sent to the law ministry for approval.
India has become a major destination for foreign couples to hire surrogates to bear their children. This has been made possible by the legalization of commercial surrogacy in India in 2002. It has also been facilitated by the lack of stringent laws on surrogacy India and its low cost in the country. While surrogacy in the US may cost around $50,000 to $100,000, it costs only around $ 25,000 in India. Besides, India offers advanced medical care facilities and the added advantage is that most doctors speak English and can communicate well with foreign couples. In fact, commercial surrogacy in India is all set to become a $2.3 billion-worth industry. Couples, including gay and lesbian couples, from all over the world, have benefited from the surrogacy options available in the country.
India may have been a booming centre of ‘reproductive tourism’ for several years, but it took the complicated case of Japanese baby Manji — born to an Indian surrogate mother — to bring into relief the fact that the law hasn’t managed to catch up with the burgeoning baby industry. But this is set to change now, with India set to be the only country in the world to legalize commercial surrogacy. The proposed rent-a-womb law, if passed in the parliamentary session, will clearly be one of the friendliest laws on surrogacy in the world.
India's booming, and much publicized, surrogacy industry may soon feel the effects of significant regulatory developments. The 35-page bill seeks to regulate India's heavily market-driven fertility industry, and introduces a number of policies ranging from clinic regulation to restrictions on ART access.
Some points that are worth noticeable in Indian Surrogacy Bill ,which the bill formally includes are:
1) Surrogacy shall not be available to "patients for whom it would normally be possible to carry a baby to term."
2) Surrogacy contracts shall be legally enforceable.
3) Married women need their husband's consent in order to become a surrogate.
4) Surrogates shall not undergo embryo transfer more than three times for the same couple.
5) Egg donor identities shall remain strictly confidential.
6) There shall be a detailed accreditation process for fertility clinics and gamete donor banks.
7) The Department of Health Research shall establish and manage a "national ART registry."
8) The only "couples" eligible for ART shall be those "having a sexual relationship that is legal in India." (This would apparently exclude gay couples.)
9) Foreigners seeking surrogacy services must provide written proof that their home country "permits surrogacy, and the child born through surrogacy in India, will be permitted entry in the country." (This would apparently exclude people from Canada and a number of European countries that specifically prohibit commercial surrogacy, and could exclude people from countries that don't explicitly permit it.)
10) The bill also calls for the formation of both national and state advisory boards composed of Health Department workers, industry representatives, scientists, and other civil society members. These boards are charged with operational zing and enforcing the many guidelines enumerated in the bill.
11) The ICMR's ART Bill, 2010, has put in place several important provisions. It says a woman acting as a surrogate mother in India cannot be less than 21 years or over 35 years. Also, she cannot give more than five live births, including her own children.
12) The Bill mandates the appointment of a local guardian in case of surrogacy arrangements where the intended couple is staying outside India. This local guardian will be legally obliged to take delivery of the child born of the surrogacy arrangement if the intended couple does not do so.
It is yet unclear to what extent the 2010 bill's language, and more importantly, its interpretation, implementation and enforcement if passed will address these and other social justice and health concerns. The implications for reproductive tourism are undoubtedly huge, and will certainly be shaped by the forthcoming responses from international commercial ART/surrogacy agencies, rights groups, and other civil society voices.
The finalized bill's implications for certain groups, especially LGBT communities and foreigners seeking surrogacy in India, are turning heads already. Depending on how its rules on surrogacy are interpreted and enforced, the legislation would disqualify gay couples, both foreign and domestic, as well as individuals or couples from countries such as the UK, Canada and Germany where the practice of commercial surrogacy is illegal. Such steps in India, the commercial epicenter of what has turned into a global business, would drastically affect the global politics of reproduction "for hire."
The Future of Indian Laws on Surrogacy India and Gay Couples.
Indian laws on surrogacy are not clear. However, as the government plans to pass the Assisted Reproductive Technology (ART) bill, this uncertainty will change. The ART bill will regulate In-Vitro Fertilization (IVF) and exclude gay couples from hiring surrogates in India. This is because the government of India has not legalized gay relationships, although it has been decriminalized by the Delhi High Court. Further, surrogacy for gay couples will be an option only after the country legalizes gay relationships. The bill also provides for prohibiting IVF clinics from conducting surrogacy transactions. Instead, it plans to set up special ART banks that will track reproductive donors and surrogate mothers.
The bill’s stipulations about who is eligible to use assisted reproductive services are also problematic. It states that ARTs will be available to all married or unmarried couples as well as single people, but defines “couple” as two persons “having a sexual relationship that is legal in India,” where homosexuality has been decriminalized but not legalized. “Married” and “unmarried” couples are also defined as those in marriages or relationships that are legal in the country where they are citizens. Accordingly the ambiguous language makes it unclear whether assisted reproductive technologies would be available for gay couples, and particularly for Indian gay couples.
As the world's media seems intent on declaring that forthcoming legislation in India will effectively ban gay couples from becoming parents through surrogacy, the question arises as to exactly what foundation these claims have. Drafts of the Assisted Reproductive Technology (Regulation) Bill 2010, which has been in process since 2008 and includes recommendations dating as far back as 2005, have thus far not explicitly stated one way or another whether gay couples will be eligible under the proposed rules.
Thus from these concepts we can only draw the conclusion that a gay couple may fall short of the requirements of being a "couple" for the purposes of this Bill, but may be acknowledged as being married, or unmarried depending on their legal status in their home country. In fact it would seem that in adding these more specific references to types of relationships or relationship status that are legal in countries other than India, that there is an increased possibility for gay couples to be eligible for surrogacy under the terms of what may become the new laws that govern this area of medicine.
The Bill therefore makes no specific stipulations about gay couples entering in to a surrogacy agreement, apart from their being generally eligible as one of the defined groups from Section 32 (1). Furthermore, both individuals who make up the "commissioning" couple must be party to the legally binding contract that will be drawn up.
Unless specific changes are made during the passing of this Bill, it is difficult to see how the current content will preclude or prejudice gay couples.
The ART bill also provides that foreign couples obtain a document from their embassy stating that the surrogate child will be granted the countries citizenship. This document is a must-have for securing a surrogacy agreement with any ART clinic. The clause, however, may hinder the prospects for couples coming from countries that do not recognize surrogacy.
Regardless of how the bill moves forward, there is an ongoing boon in the Art industry and commercial surrogacy in India.
Becoming a proud parent with the help of Third Party Reproduction involves a considerable financial and emotional investment. The surrogacy treatment cost is very economical in India as compared to the cost involved in European countries. The best medical facility and the use of latest technology in the treatment aided by renowned team of doctors and the well trained clinic staff has made India the favorable spot among the foreigners for surrogacy journey.
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