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Assisted Reproduction

India Considering New Legislation That Will Regulate Surrogacy

The Indian Health Ministry has completed its drafting of the Assisted Reproductive Technologies (ART) Regulation Bill of 2010. This Bill has been sent to the Ministry for approval. If approved, the new regulations will impose some sweeping (and needed) changes to this burgeoning industry in India. Among the new rules:

A woman acting as surrogate mother in India cannot be less than 21 or over 35 years. Also, she cannot give more than five live births, including her own children.

The Bill has incorporated several landmark stipulations. For instance, no surrogate mother shall undergo embryo transfer more than three times for the same couple. If a surrogate mother is married, the consent of her spouse is mandatory. Only Indian citizens can be considered for surrogacy. No ART bank or clinic can send an Indian citizen for surrogacy abroad. Strict confidentiality has to be maintained about the donor’s identity.

A would-be surrogate mother will be duty bound not to engage in any act that could harm the foetus during pregnancy and the baby after birth.

Indian Council of Medical Research (ICMR) director general Dr V M Katoch told TOI, “This is a very important Bill. It has been finalised and sent to the law ministry for its approval. The department of health research will be responsible for the Bill’s execution. We are following up with the law ministry on a weekly basis.”

Once the Bill gets the assent, it will become binding on a surrogate mother to relinquish all her filial rights over the baby. And, the birth certificate of the baby born through surrogacy will bear the name of the individual or individuals, who had commissioned the surrogacy, as parents. The commissioning parents could be a single man or woman, a married couple or an unmarried couple, who are in a live-in relationship.

“Since we have defined couple as two persons living together and having legal sex, lesbians and gays won’t be allowed to use ART. Once India makes this relationship permissible, lesbians and gays can also go for IVF,” said Dr R S Sharma, deputy director general of division of reproductive health and nutrition, ICMR.

He added, “Live-in couples can go for IVF only of the woman cannot biologically bear a child, or it is risky for her to bear one. No ART clinic shall consider conception by surrogacy for patients for whom it may normally be possible to carry a baby to term. A doctor will have to first certify that a conception would lead to undesirable medical implications.” The commissioning parents will be legally bound to accept the custody of the child irrespective of any congenital abnormality. Refusal will be considered a cognisable offense under this Act.

The Bill makes another very important point: No woman can be treated with gametes or embryos derived from the gametes of more than one man or woman during any one treatment cycle. An ART clinic cannot mix semen from two individuals before use. “Now, if the sperm count is less in a semem sample, it is mixed with multiple samples for a good count. This is unethical, and won’t be allowed,” Dr Sharma said.

According to the Union health ministry note, which is in possession with TOI, it is estimated that 15% of couples around the world are infertile. This implies that infertility is one of the most highly prevalent medical problems that have enormous social implications. Usually, infertility carries a social stigma in India.

As per the note, “Today 85% of the cases of infertility can be taken care of through medicines, surgery or the new medical technologies such IVF or intracytoplasmic sperm injection (ICSI). The last 20 years have seen an exponential growth of infertility clinics that use techniques requiring handling of spermatozoa or the oocyte outside the body, or the use of a surrogate mother.

At present, an individual is free to open an infertility or ART clinic since no permission is required for it. “There has been, consequently, a mushrooming of such clinics around the country. It has become important to regulate the functioning of such clinics to ensure that the services provided are ethical and that the medical, social and legal rights of all those concerned are protected. The Bill details procedures for accreditation and supervision of infertility clinics,” the note added.

Hence, a foreigner or foreign couple not resident in India, or a non-resident Indian individual or couple, seeking surrogacy in India shall have to appoint a local guardian, who will be legally responsible for taking care of the surrogate during and after the pregnancy till the child/children are delivered to the commissioning couple.


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