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India to have new surrogacy law soon

Much in the news for all the wrong reasons, surrogacy in India will soon be a regulated sector with the government bringing in a law to govern all aspects of the process like compensation, age and consent of the surrogate mother.

“The final draft bill is now lying with the law ministry and, after being cleared, will be presented before the cabinet for approval,” V.M. Katoch, secretary, department of health research under the health ministry, told IANS.

Surrogacy is a method of reproduction where a woman – the surrogate – agrees to carry a pregnancy to term for a fee.

A study backed by the United Nations in July 2012 estimated that surrogacy is a more than $400 million business a year in India, with over 3,000 fertility clinics across the country.

India now has only the guidelines the Indian Council for Medical Research (ICMR) released in 2002.

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.

Named 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 issues addressed in the bill are compensation, informed consent and health of the women involved,” Katoch said.

He said that the bill might also provide a punishment framework for violators.

It has been cleared after rounds of discussions with various ministries and could be passed as early as the winter session of parliament in November-December, said Katoch, who is also the ICMR chief.

The bill will also provide a framework for letting foreigners use Indian surrogate mothers.

Surrogacy in India has always been a controversial subject with activists blaming foreigners for exploiting poor women.

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.

Centre for Social Research Director Ranjana Kumari told IANS: “Surrogate motherhood has grown exponentially in India to become part of a thriving globalized industry.
However, it raises difficult ethical, philosophical and social issues”.

“Surrogacy essentially turns the unique biological ability of a woman’s body to reproduce into a commercial business when a monetary transaction is involved. This is complicated further by the lack of strong legal provisions to safeguard the interest of the surrogate mother, the resultant child or the commissioning parents in India,” she said.

Sources in the health ministry told IANS that the bill was apparently stuck till now due to differences between the ministries of health and home over allowing single
parent surrogacy.

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.

(Sreeparna Chakrabarty can be contacted on sreeparna.c@ians.in)

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