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Instead of confusing guidelines on surrogacy, need for ART law
Experts say the Centre's new rules will only limit the number of foreigners coming to India rather than protecting surrogates and couples who sign contracts with them.
Foreigners who are gay, single, have livein partners or have been married for less than two years will no longer be able to employ a surrogate in India to experience parenthood, according to new guidelines issued by the central government. The Ministry of Home Affairs (MHA) also puts the responsibility squarely on the doctors if a child born to a surrogate mother is denied a visa by the parents' country. While experts agree there is a need to regulate the burgeoning surrogacy industry, president of the Indian Society of Assisted Reproduction (ISAR) Dr Manish Banker tells TOI-Crest that different guidelines issued by different government agencies have only created confusion
Do you agree with the new MHA guidelines?
Our country softened its stand on same-sex relationships when sex between two consenting adults was deemed not illegal. However, it is still a complicated issue. One has to adhere to the laws and norms of the country one lives in.
What prompted the ministry to issue fresh visa guidelines to foreigners coming to India for surrogacy?
The fresh guidelines aim to pre-empt legal issues and other problems before a child is born rather than firefighting after the birth. In the past, there have been legal complications involving newborns of couples coming from countries where surrogacy or gay marriages are not legal.
What are the immediate implications which clinics offering surrogacy to foreign couples will face following the MHA diktat?
Some surrogates may already be pregnant with children of gay couples or live-in partners who no longer qualify for surrogacy in India, according to the fresh guidelines. Others may have given egg and sperm samples. Most importantly there are frozen embryos with us from couples and singles whose initial cycles have failed. These are potential lives which cannot be thrown away. What should we do with them? The guidelines were issued in July 2012, but some Mumbai clinics were notified only in late December 2012. MHA has to specify a cut-off date for implementation of these guidelines as there are nearly 600 registered clinics in India where surrogacy procedures may have been initiated at different levels. Secondly, the MHA guidelines are not concurrent with the Ministry of Health guidelines issued by Indian Council of Medical Research (ICMR) which allows people in live-in relationships and those married for less than two years to go ahead with surrogacy.
What impact will these fresh guidelines have on medical tourism?
Some 2, 000-odd surrogacy procedures are done annually in the country. Surrogacy is growing very fast with 15 to 20 per cent rise in the numbers every year. Currently, this industry is worth Rs 150 to Rs 200 crore considering that each in-vitro fertilisation-surrogacy procedure costs an average of Rs 7 lakh to Rs 8 lakh in India. There is the possibility of gays, singles and those in live-in relationships heading to another surrogacy hub like Bangkok.
Will these new guidelines secure the rights of surrogates?
Surrogates will not benefit from these guidelines which will only limit the number of foreigners coming to the country for the procedure. To protect the rights of the surrogates and of couples who sign contracts with surrogates, the ART (Assisted Reproductive Technology) Bill, which is ready since 2010, needs to be passed and made into a law. It protects all rights of surrogates including insuring her life and providing for compensation to be given to her family in case of her death. Plus, rights of couples also need to be protected as there have been instances where surrogates have threatened to terminate the pregnancy if their demands for more money are not fulfilled. These complexities can be addressed properly only by a law.
Why has the ART bill not become an Act as yet?
That is the most pertinent question which needs to be answered, especially when India has emerged as the global hub for in-vitro fertilisation and surrogacy procedures for childless couples. A final draft has been ready since 2010. It has been updated, put in the public domain and debated. The onus is now on the central government to table the bill and pass it for ART to become a law. If there is a law, there will be no need for numerous, confusing guidelines. If the ART law is implemented, ICMR can start inspecting clinics and register them. Even the MHA has demanded that clinics be registered under its fresh guidelines. How can ICMR inspect clinics if there is no law which authorises that? The ART Bill should be made into a law at the earliest so that the 'dos' and 'don'ts' are clear and the stakeholder knows the punitive action to be taken if the same is violated.
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