Surrogacy in India

Surrogacy in India

Donor Gametes are Allowed: New Rule on Surrogacy

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Features of ART Regulation 2021

Mains level : Read the attached story

gamete

Introduction

  • The Central government’s recent modifications to the Surrogacy (Regulation) Rules, 2022 reflect a significant shift in the legal landscape surrounding surrogacy practices in India.
  • These amendments address critical issues concerning gamete usage and access to surrogacy procedures.

Why discuss this?

  • Judicial Scrutiny: The Supreme Court’s involvement stems from petitions challenging the March 2023 ban on donor gametes for surrogacy, prompting the Centre to reconsider its stance.
  • Public Outcry: The judiciary’s intervention follows public outcry and legal challenges from women affected by the previous rules, emphasizing the urgency of addressing surrogacy regulations.

Key Amendments on Gametes Usage

  • Gamete Flexibility: The amended rules allow couples certified with medical conditions to use donor gametes for surrogacy, provided at least one gamete originates from the intending couple.
  • Single Women’s Directive: Single women, including widows and divorcees, are mandated to use self-eggs and donor sperm for surrogacy, ensuring compliance with regulatory standards.
  • Certification Criteria: The District Medical Board may certify the need for donor gametes based on the medical condition of either spouse in the intending couple, facilitating access to surrogacy using donor gametes.

About Altruistic Surrogacy and ART

  • Definition: Altruistic surrogacy prohibits monetary compensation to the surrogate beyond medical expenses and insurance coverage, fostering ethical practices.
  • ART Regulation 2021: The Act integrates Assisted Reproductive Technology (ART) governance through the establishment of the National Assisted Reproductive Technology and Surrogacy Board, ensuring effective implementation and oversight.

Evolution of Surrogacy Rules and Amendments

  • Ministry Initiative: The Ministry of Health and Family Welfare introduced the Surrogacy (Regulation) Rules, 2022, focusing on clinic standards and personnel qualifications.
  • Clinical Requirements: The rules specify staffing criteria and essential equipment, enhancing operational standards across registered surrogacy clinics.
  • Medical Necessity: Surrogacy is permitted in cases of uterine abnormalities, failed IVF attempts, unexplained pregnancy losses, and pregnancy impossibility due to illness, ensuring access for couples facing diverse challenges.

Key Provisions of Surrogacy (Regulation) Rules, 2022

  • Clinic Composition: Registered clinics must employ qualified professionals, including gynecologists, anesthetists, embryologists, and counselors, ensuring comprehensive care.
  • Gynecologist Qualifications: Gynecologists must possess relevant post-graduate qualifications and experience in ART procedures, ensuring competency in assisted reproduction techniques.
  • Insurance Coverage: Mandatory health insurance for surrogate mothers safeguards their well-being during and after pregnancy, reflecting a commitment to maternal health.
  • Affidavit Requirement: Intending couples must provide a legal guarantee of compliance with surrogacy regulations, ensuring accountability and adherence to legal standards.
  • Embryo Implantation Limit: Strict guidelines limit embryo implantation to minimize health risks and ethical concerns, prioritizing the well-being of both surrogate mothers and unborn children.
  • Abortion Protocol: Surrogate mothers’ rights are protected through adherence to established abortion procedures, respecting their autonomy and ensuring medical safety.

Tap to read more about:

Exemptions under Surrogacy Law

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Surrogacy in India

Supreme Court upholds Woman’s Right to Parenthood in Surrogacy Case

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Gestational Surrogacy

Mains level : Read the attached story

surrogacy

Central Idea

  • In a landmark decision, the Supreme Court of India has safeguarded a woman’s right to parenthood, particularly in cases of medical conditions, by suspending the enforcement of a law that jeopardized her aspiration to become a mother through surrogacy.
  • This significant ruling provides protection and empowerment for women facing unique medical challenges on their journey to parenthood.

Case Details

  • Medical Condition: The woman suffers from the rare Mayer Rokitansky Kuster Hauser (MRKH) syndrome. Medical records confirm her condition, which includes “absent ovaries and absent uterus,” rendering her unable to produce her own eggs.
  • Hope through Gestational Surrogacy: She and her husband embarked on the path of gestational surrogacy using a donor’s eggs (a process where one person, who did not provide the egg used in conception, carries a fetus through pregnancy and gives birth to a baby for another person or couple.).

Threatening Amendment

  • No donor gamete use: A government notification dated March 14 of the current year introduced an amendment to the law, prohibiting the use of donor gametes in surrogacy. It mandated that “intending couples” must employ their own gametes for the surrogacy process.
  • A Violation of Parenthood Rights: This amendment was challenged in the Supreme Court, alleging a violation of a woman’s fundamental right to parenthood. The court found that the amendment contradicted the core provisions of the Surrogacy Act, both in form and substance.

Gametes Regulation and ART Act, 2021

  • Gametes are reproductive cells. In animals, the male gametes are sperms and female gamete is the ovum or egg cells.
  • On March 14, 2023, the Health Ministry published Rules that said:
  1. A couple undergoing surrogacy must have both gametes from the intending couple and donor gametes are not allowed;
  2. Single women (widow/divorcee) undergoing surrogacy must use self-eggs and donor sperms to avail surrogacy procedure.
  • Section 2(h) of the Assisted Reproductive Technology Regulation Act, 2021 defines a “gamete donor” as a person who provides sperm or oocyte with the objective of enabling an infertile couple or woman to have a child.

Court’s Ruling: Allows Donor’s Gametes

  • Prima Facie Contradiction: The SC Bench issued a decisive order, stating that the amendment obstructed the intending couple from achieving parenthood through surrogacy and was prima facie contrary to the Surrogacy Act’s intentions.
  • Petitioner’s Argument: Senior advocate Sanjay Jain, representing the petitioner, argued that the amendment invalidated the possibility of gestational surrogacy, which the Surrogacy Act, 2021, recognized as a valid option for couples facing medical conditions.
  • Rule 14(a) Clarification: Jain referred to Rule 14(a) of the Surrogacy Rules, emphasizing that it explicitly listed medical or congenital conditions, such as the absence of a uterus, as valid reasons for gestational surrogacy. The rule affirmed that the choice was solely the woman’s.
  • Retrospective Implementation: The petitioner contended that the amendment could not be applied retrospectively to her case.

Court’s Ruling and Interpretation

  • Woman-Centric Perspective: The court concurred with Mr. Jain’s argument that gestational surrogacy was “woman-centric.” It recognized that the decision to opt for surrogacy was driven by the woman’s inability to become a mother due to her medical or congenital condition.
  • Validation of Rule 14(a): The court asserted that the amendment could not contradict Rule 14(a), which explicitly acknowledged medical conditions, including the absence of a uterus, as valid reasons necessitating gestational surrogacy.
  • Genetic Relation Interpretation: Addressing the government’s contention that the surrogate child must be “genetically related” to the couple, the court clarified that this related to the husband when Rule 14(a) applied.

Conclusion

  • The Supreme Court’s decision in favour of ‘Mrs. ABC’ not only upholds her right to parenthood but also reinforces the significance of gestational surrogacy as a woman-centric solution for individuals facing challenging medical conditions on their path to becoming parents.
  • This ruling sets a precedent for protecting the parenthood rights of women across India.

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Surrogacy in India

Assisted Reproductive Technology Regulations (ART), 2023

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Assisted Reproductive Technology (ART)

Mains level : Read the attached story

Central Ideas

  • The Health Ministry of India introduced the Assisted Reproductive Technology Regulations (ART), 2023 earlier this year, aiming to improve medical care and security for donors and patients.
  • However, industry insiders report that the new provisions have led to increased medical costs and pose challenges for doctors and couples seeking ART due to limited availability of donors.

Assisted Reproductive Technology (ART) in India

  • ART refers to a range of techniques used to achieve pregnancy by handling sperm or egg cells outside the human body and transferring embryos into the woman’s reproductive tract.
  • It is regulated by Assisted Reproductive Technology (Regulation) Act 2021 in India.
  • ART in India is regulated by the Indian Council of Medical Research (ICMR).
  • National Guidelines for Accreditation, Supervision, and Regulation of ART Clinics were established in 2005.

Definition and Techniques of ART

  • ART encompasses various procedures, including sperm donation, in-vitro fertilization (IVF), and gestational surrogacy.
  • It involves handling sperm and egg cells in a laboratory setting to facilitate fertilization and embryo development.

Types of ART Procedures permitted:

  1. In Vitro Fertilization (IVF): Eggs and sperm are fertilized in a laboratory dish, and resulting embryos are transferred to the uterus.
  2. Intracytoplasmic Sperm Injection (ICSI): A single sperm is directly injected into an egg.
  3. Intrauterine Insemination (IUI): Sperm is placed directly into the uterus during ovulation.
  4. Surrogacy: A surrogate mother carries and delivers a baby for another individual or couple.

Salient Provisions of the ART (Regulation) Act 2021:

[A] Regulation of ART Clinics and Banks:

  • Registration Requirement: ART clinics and banks must be registered under the National Registry of Banks and Clinics of India, maintaining a central database of these institutions.
  • Validity and Renewal: Registration is valid for five years and can be renewed for an additional five years.
  • Compliance and Penalties: Violation of the Act’s provisions may result in cancellation or suspension of the institution’s registration.

[B] Conditions for Sperm Donation and ART Services:

  • Eligibility Criteria: Registered ART banks can screen, collect, and store semen from men aged between 21 and 55 years, as well as store eggs from women aged between 23 and 35 years.
  • Female Donor Requirements: Female donors must be married with at least one child of their own, aged at least three years.
  • Parental Rights: A child born through ART procedures is legally considered the couple’s biological child, and the donor does not retain any parental rights over the child.

[C] Consent and Insurance Coverage:

  • Informed Consent: ART procedures require written informed consent from both the couple seeking the procedure and the donor.
  • Insurance Coverage: The couple must provide insurance coverage for the female donor, protecting against loss, damage, or death.

[D] Regulation of ART Processes:

  • National and State Boards: The Surrogacy Act 2021 establishes National and State Boards responsible for regulating ART services.
  • Advisory Role: These boards advise the government on policy matters, review and monitor law implementation, and formulate a code of conduct for ART clinics and banks.

[E] Offences and Penalties:

  • Offences defined: Child abandonment or exploitation, sale or trade of embryos, exploitation of couples or donors, and transfer of embryos into males or animals.
  • Penalties: Offenders may face imprisonment ranging from 8 to 12 years and fines up to Rs 10 to 20 lakhs.
  • Sex-Selective ART Prohibition: Clinics and banks are prohibited from advertising or offering sex-selective ART, with penalties of imprisonment ranging from 5 to 10 years and fines up to Rs 10 to 25 lakhs.

New Provisions of the ART Regulations, 2023

  • Donation Frequency Restrictions: The regulations limit the number of times a donor (male or female) can donate sperm or oocytes in their lifetime.
  • Age Limits for Donors: The provisions specify age criteria for oocyte donors, requiring prior marriage and having at least one living child of their own.
  • Limitations on Gamete Distribution: ART banks are prohibited from supplying reproductive cells from a single donor to more than one commissioning couple.
  • Insurance Coverage Requirement: Parties seeking ART services must provide insurance coverage for oocyte donors against any loss, damage, or death.
  • Prohibition on Pre-Determined Sex Selection: Clinics are prohibited from offering to provide a child of pre-determined sex.
  • Genetic Disease Screening: Checking for genetic diseases before embryo implantation is mandated.

Issues with these regulations

[A] Impact on Availability of Suitable Donors

  • Restricted Opportunities: The new provisions significantly limit the opportunities for ART couples to find suitable donors, affecting their chances of successful treatment.
  • Increased Costs: The restrictions on donation attempts have the potential to increase costs for couples relying on assisted reproductive techniques.
  • Challenges for Couples: The limitations pose challenges for couples in need of ART services, as finding compatible donors becomes more difficult.

[B] Implications for Fertility Rates:

  • Declining Fertility Rates: Like other parts of the world, India is experiencing a decline in fertility rates.
  • Increased Challenges: Further limiting the pool of available donors through the new regulations is likely to exacerbate the challenges faced by couples seeking ART.

Conclusion

  • While the new ART regulations in India aim to enhance safety measures and transparency, they have inadvertently led to challenges in the availability of suitable donors.
  • With declining fertility rates, the restrictions imposed by the regulations pose additional difficulties.
  • Balancing the need for regulation and patient access to effective ART treatments will be crucial to ensure the well-being of couples and the continued progress of assisted reproductive technology in India.

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Surrogacy in India

UK sees success in Mitochondrial Replacement Therapy

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Mitochondrial Replacement Therapy (MRT)

Mains level : Various ARTs

mitochondria

Central Idea

  • The birth of a baby using three persons’ DNA using Mitochondrial Replacement Therapy (MRT) in the UK has generated significant attention and discussion.
  • The baby has three parents, with the mitochondria coming from a donor in addition to the genetic material from the biological parents.
  • This pioneering technology was employed to prevent the baby from inheriting the mother’s mitochondrial disease.

What is Mitochondria?

Description
Structure Membrane-bound organelles with outer and inner membranes
Energy Production Generate ATP through cellular respiration and oxidative phosphorylation
ATP Production Breakdown of carbohydrates, fats, and proteins in the inner membrane
DNA and Replication Possess their own circular DNA (mtDNA) and can replicate independently
Other Functions Involved in calcium signalling, apoptosis, and synthesis of molecules
Inheritance Maternally inherited during fertilization
Evolutionary Origin Arise from a symbiotic relationship with bacteria-like organisms
Disorders Mutations or dysfunction can cause mitochondrial diseases

 

  • Certain defects in mitochondria can lead to mitochondrial diseases, impacting the function of energy-hungry tissues in various organs.
  • Mitochondrial diseases have no cure but can be treated, and their incidence is estimated to be one in 5,000 people.
  • In this case, the mother had a mitochondrial disease that she wanted to avoid passing on to her baby, but she did not want to use a donor egg.

What is Mitochondrial Replacement Therapy (MRT)?

  • MRT is a medical technique used to prevent the transmission of certain mitochondrial diseases from a mother to her child.
  • It involves replacing faulty mitochondria in an egg or embryo with healthy mitochondria from a donor.
  • The procedure is typically performed using in vitro fertilization (IVF) techniques.
  • The nucleus, containing the majority of the genetic material, is transferred from the intended parents’ egg or embryo to a donor egg or embryo with healthy mitochondria.
  • The resulting embryo, with nuclear DNA from the intended parents and healthy mitochondria from the donor, is then implanted into the mother’s uterus for gestation.

How does it work?

  • The father’s sperm fertilizes the eggs from the biological mother and a female donor with healthy mitochondria.
  • The genetic material from the donor’s egg is replaced with that of the biological parents, resulting in an egg with the parents’ DNA and the donor’s mitochondria.
  • This modified egg is then implanted into the mother’s uterus and carried to full term, resulting in a baby free from the mother’s mitochondrial disease.

Uses of MRT

  • Prevention of Mitochondrial Diseases: MRT helps prevent the transmission of certain mitochondrial diseases from mothers to their children.
  • Family Planning: It enables individuals or couples with mitochondrial DNA mutations to have genetically related children without the risk of disease inheritance.
  • Improved Health: MRT can significantly improve the overall health and well-being of individuals by avoiding debilitating mitochondrial diseases.
  • Ethical Considerations: It provides an alternative to traditional donor egg options, allowing intended parents to have a child with their own genetic material while avoiding disease transmission.
  • Scientific Advancements: MRT contributes to scientific research and advancements in assisted reproductive technologies, expanding our understanding of mitochondrial biology and potential treatment options for mitochondrial disorders.

Recent advancements in UK

  • The baby primarily carries DNA from its biological parents and a small percentage from the donor whose mitochondria was used during fertilization.

Scientific process

  • Mitochondrial diseases are inherited from the mother, prompting research to find ways to protect infants from inheriting these diseases.
  • The Newcastle Fertility Clinic developed an advanced in vitro fertilization technique known as Mitochondrial Donation Treatment (MDT).

Legal Facilitation of MDT

  • The UK government amended the law in 2015 to allow for mitochondrial replacement therapy (MRT) or MDT.
  • The Newcastle Fertility Centre became the first center to obtain a license to perform the procedure, and the first cases were approved in 2018.

Issues with MRT

  • Transfer of Defective Mitochondria: There is a minimal risk of transferring small amounts of defective mitochondria along with healthy ones during the procedure.
  • Long-Term Safety: The long-term safety of MRT is still being studied, and ongoing monitoring is necessary to assess any potential risks or effects.
  • Ethical and Social Concerns: MRT raises ethical and social considerations related to the creation and destruction of embryos, use of donor gametes, and altering the germline.
  • Limited Availability: MRT is a highly regulated procedure, and its availability may be limited to specific countries or cases approved by regulatory bodies.
  • Emotional and Psychological Impact: Undergoing MRT involves emotional implications and decision-making, which can have an impact on individuals and couples involved.

 

 

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Surrogacy in India

Exemptions under Surrogacy Law

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Surrogacy Law

Mains level : Read the attached story

The govt in the Supreme Court has said that same-sex couples and live-in partners are not included in surrogacy and assisted reproduction laws to avoid ‘misuse’ and provide children a ‘complete family’.

Government’s stance

  • Same-sex couples and live-in partners are excluded from surrogacy and assisted reproduction laws to avoid ‘misuse.’
  • The welfare of the child should be prioritized over any notions of equality among prospective parents or couples.
  • No special provisions or additional rights have been granted to same-sex couples and live-in partners despite the decriminalization of their relationships.

Why in news?

  • The government’s perspective is not in tune with several Supreme Court judgments that long live-in relationships “presume” marriage.
  • Live-in partners are not bound by law, and the safety of the child born through surrogacy cannot be guaranteed.

Judiciary in support

  • Same-sex couples are fighting for their right to marry and raise a family as equal parents.
  • CJI heading the Constitution Bench, has remarked that same-sex couples could offer as stable and loving a home, if not better, to children as heterosexual married parents.

Distinct features of the Surrogacy (Regulation) Act, 2021

  • Definition of surrogacy: It defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
  • Regulation of surrogacy: It prohibits commercial surrogacy, but allows altruistic surrogacy which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance.
  • Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.
  • Eligibility criteria: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority ex. District Medical Board.

Eligibility criteria for surrogate mother:

  • To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
  1. A close relative of the intending couple;
  2. A married woman having a child of her own;
  3. 25 to 35 years old;
  4. A surrogate only once in her lifetime; and
  5. Possess a certificate of medical and psychological fitness for surrogacy.
  • Further, the surrogate mother cannot provide her own gametes for surrogacy.

Basis of the Petition: Right to Reproductive Autonomy

  • The personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.
  • Thus, the right to privacy of every citizen or person affecting a decision to bear or beget a child through surrogacy cannot be taken away.

Other issues with Surrogacy Law

  • Medical issue necessity: Married women can only avail surrogacy services if they are unable to produce a child due to medical conditions.
  • Widow/Divorced: Otherwise, for women to avail of surrogacy services, they must be aged between 35 and 45 and widowed or divorced.
  • One child obligation: Women can only offer surrogacy if they are aged between 25 and 35 and married with at least one biological child.
  • Genetic relation obligation: The laws also require a surrogate to be genetically related to the couple who intend to have a child through this method.

 

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Surrogacy in India

Surrogacy Law faces challenge in Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Surrogacy (Regulation) Act, 2021

Mains level : Read the attached story

A person has approached the Delhi High Court to question why marital status, age or gender should be the criteria for prohibiting someone from commissioning a surrogacy.

Why in news?

  • Under the Surrogacy (Regulation) Act, 2021 a married couple can opt for surrogacy only on medical grounds.
  • The petitioner have challenged in the court the surrogacy law and the Assisted Reproductive Technology (Regulation) Act, 2021 which provides a regulatory framework for surrogacy.

Issues raised by the petition

  • Currently, the laws does not allow single men to have child through surrogacy.
  • Married women can only avail surrogacy services if they are unable to produce a child due to medical conditions.
  • Otherwise, for women to avail of surrogacy services, they must be aged between 35 and 45 and widowed or divorced.
  • Women can only offer surrogacy if they are aged between 25 and 35 and married with at least one biological child.
  • The laws also require a surrogate to be genetically related to the couple who intend to have a child through this method, their petition said.

Basis of the Petition

  • The personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.
  • Thus, the right to privacy of every citizen or person affecting a decision to bear or beget a child through surrogacy cannot be taken away.

Distinct features of the Surrogacy (Regulation) Act, 2021

  • Definition of surrogacy: It defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
  • Regulation of surrogacy: It prohibits commercial surrogacy, but allows altruistic surrogacy which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance.
  • Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.
  • Eligibility criteria: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority ex. District Medical Board.

Eligibility criteria for surrogate mother:

  • To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
  1. A close relative of the intending couple;
  2. A married woman having a child of her own;
  3. 25 to 35 years old;
  4. A surrogate only once in her lifetime; and
  5. Possess a certificate of medical and psychological fitness for surrogacy.
  • Further, the surrogate mother cannot provide her own gametes for surrogacy.

Also read:

[Burning Issue] Surrogacy in India

 

 

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Surrogacy in India

Allow Surrogacy For Single Men, Mothers: Delhi HC

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Surrogacy (Regulation) Act, 2021

Mains level : Issues with Surrogacy Laws

The Delhi High Court issued a notice to the Union government on a petition challenging some provisions of the Surrogacy (Regulation) Act and the Assisted Reproductive Technology (Regulation) Act.

Issues raised by the petition

  • Currently, the laws does not allow single men to have child through surrogacy.
  • Married women can only avail surrogacy services if they are unable to produce a child due to medical conditions.
  • Otherwise, for women to avail of surrogacy services, they must be aged between 35 and 45 and widowed or divorced.
  • Women can only offer surrogacy if they are aged between 25 and 35 and married with at least one biological child.
  • The laws also require a surrogate to be genetically related to the couple who intend to have a child through this method, their petition said.

Basis of the Petition

  • The personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.
  • Thus, the right to privacy of every citizen or person affecting a decision to bear or beget a child through surrogacy cannot be taken away.

Distinct features of the Surrogacy (Regulation) Act, 2021

  • Definition of surrogacy: It defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
  • Regulation of surrogacy: It prohibits commercial surrogacy, but allows altruistic surrogacy which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance.
  • Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.
  • Eligibility criteria: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority ex. District Medical Board.

Eligibility criteria for surrogate mother:

  • To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
  1. A close relative of the intending couple;
  2. A married woman having a child of her own;
  3. 25 to 35 years old;
  4. A surrogate only once in her lifetime; and
  5. Possess a certificate of medical and psychological fitness for surrogacy.
  • Further, the surrogate mother cannot provide her own gametes for surrogacy.

Also read

[Burning Issue] Surrogacy in India

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Surrogacy in India

Assisted Reproductive Technology (Regulation) Act, 2021

Note4Students

From UPSC perspective, the following things are important :

Prelims level : ART, Key features of the Bill

Mains level : ART regulation in India

The Lok Sabha has passed the Assisted Reproductive Technology- ART (Regulation) Bill,, 2020 that proposes the establishment of a national registry and registration authority for all clinics and medical professionals serving in the field.

Key highlights of the Bill:

Definition of ART

  • The Bill defines ART to include all techniques that seek to obtain a pregnancy by handling the sperm or the oocyte (immature egg cell) outside the human body and transferring the gamete or the embryo into the reproductive system of a woman.
  • Examples of ART services include gamete (sperm or oocyte) donation, in-vitro-fertilisation (fertilising an egg in the lab), and gestational surrogacy (the child is not biologically related to surrogate mother).
  • ART services will be provided through: (i) ART clinics, which offer ART related treatments and procedures, and (ii) ART banks, which store and supply gametes.

Regulation of ART clinics and banks

  • The bill provides that every ART clinic and bank must be registered under the National Registry of Banks and Clinics of India.
  • It will act as a central database with details of all ART clinics and banks in the country.
  • State governments will appoint registration authorities for facilitating the registration process.
  • Clinics and banks will be registered only if they adhere to certain standards (specialised manpower, physical infrastructure, and diagnostic facilities).
  • The registration will be valid for five years and can be renewed for a further five years.

Conditions for gamete donation and supply

  • Screening of gamete donors, collection and storage of semen, and provision of oocyte donor can only be done by a registered ART bank.
  • A bank can obtain semen from males between 21 and 55 years of age, and oocytes from females between 23 and 35 years of age.
  • An oocyte donor should be an ever-married woman having at least one alive child of her own (minimum three years of age).
  • The woman can donate oocyte only once in her life and not more than seven oocytes can be retrieved from her.
  • A bank cannot supply gamete of a single donor to more than one commissioning couple (couple seeking services).

Conditions for offering ART services:

  • ART procedures can only be carried out with the written informed consent of both the party seeking ART services as well as the donor.
  • The party seeking ART services will be required to provide insurance coverage in the favour of the oocyte donor (for any loss, damage, or death of the donor).
  • The Bill also requires checking for genetic diseases before the embryo implantation.

Rights of a child born through ART

  • A child born through ART will be deemed to be a biological child of the commissioning couple and will be entitled to the rights and privileges available to a natural child of the commissioning couple.
  • A donor will not have any parental rights over the child.

National and State Boards:

  • The Bill provides that the National and State Boards for Surrogacy constituted and will for the regulation of ART services.
  • Key powers and functions of the National Board include:
  1. Advising the central government on ART related policy matters
  2. Reviewing and monitoring the implementation of the Bill
  3. Formulating code of conduct and standards for ART clinics and banks
  4. Overseeing various bodies to be constituted under the Bill
  5. State Boards will coordinate enforcement of the policies and guidelines for ART as per the recommendations, policies, and regulations of the National Board

Offences and penalties

Offences under the Bill include:

  1. Abandoning, or exploiting children born through ART,
  2. Selling, purchasing, trading, or importing human embryos or gametes,
  3. Using intermediates to obtain donors,
  4. Exploiting commissioning couple, woman, or the gamete donor in any form, and
  5. Transferring the human embryo into a male or an animal
  • These offences will be punishable with a fine between 5 and 10 lakh rupees for the first contravention.
  • For subsequent contraventions, these offences will be punishable with imprisonment for a term between eight and 12 years, and a fine between 10 and 20 lakh rupees.
  • Any clinic or bank advertising or offering sex-selective ART will be punishable with imprisonment between five and ten years, or fine between Rs 10 lakh and Rs 25 lakh, or both.
  • No court will take cognisance of offences under the Bill, except on a complaint made by the National or State Board or any officer authorised by the Boards.

 

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Surrogacy in India

Assisted Reproductive Technology (Regulation) Bill, 2020

Note4Students

From UPSC perspective, the following things are important :

Prelims level : ART

Mains level : ART Regulation Bill, 2020

The Centre moved to standardize protocols of the growing fertility industry and introduced the Assisted Reproductive Technology (Regulation) Bill, 2020, in Lok Sabha on the first day of the monsoon session of Parliament.

Try this question for mains:

Q. What is Assisted Reproductive Technology? Discuss the salient features of ART Regulation Bill, 2020?

Features of the ART Regulation Bill, 2020

(1) Defining ART

  • The Bill defines ART to include all techniques that seek to obtain a pregnancy by handling the sperm or the oocytes (immature egg cell) outside the human body and transferring the gamete or the embryo into the reproductive system of a woman.
  • Examples of ART services include gamete (sperm or oocyte) donation, in-vitro-fertilisation (fertilising an egg in the lab), and gestational surrogacy (the child is not biologically related to surrogate mother).
  • ART services will be provided through: (i) ART clinics, which offer ART related treatments and procedures, and (ii) ART banks, which store and supply gametes.

(2) Regulation of ART clinics and banks

  • The Bill provides that every ART clinic and the bank must be registered under the National Registry of Banks and Clinics of India.
  • The National Registry will be established under the Bill and will act as a central database with details of all ART clinics and banks in the country.
  • State governments will appoint registration authorities for facilitating the registration process.
  • Clinics and banks will be registered only if they adhere to certain standards (specialised manpower, physical infrastructure, and diagnostic facilities).
  • The registration will be valid for five years and can be renewed for a further five years. Registration may be cancelled or suspended if the entity contravenes the provisions of the Bill.

(3) Conditions for gamete donation and supply

  • Screening of gamete donors, collection and storage of semen, and provision of oocyte donor can only be done by a registered ART bank.
  • A bank can obtain semen from males between 21 and 55 years of age, and oocytes from females between 23 and 35 years of age.
  • An oocyte donor should be an ever-married woman having at least one alive child of her own (minimum three years of age).
  • The woman can donate oocyte only once in her life and not more than seven oocytes can be retrieved from her.
  • A bank cannot supply gamete of a single donor to more than one commissioning couple (couple seeking services).

(4) Conditions for offering ART services

  • ART procedures can only be carried out with the written informed consent of both the party seeking ART services as well as the donor.
  • The party seeking ART services will be required to provide insurance coverage in the favour of the oocytes donor (for any loss, damage, or death of the donor).
  • A clinic is prohibited from offering to provide a child of pre-determined sex. The Bill also requires checking for genetic diseases before the embryo implantation.

(5) Rights of a child born through ART 

  • A child born through ART will be deemed to be a biological child of the commissioning couple and will be entitled to the rights and privileges available to a natural child of the commissioning couple.
  • A donor will not have any parental rights over the child.

(6) National and State Boards

  • The Bill provides that the National and State Boards for Surrogacy constituted under the Surrogacy (Regulation) Bill, 2019 will act as the National and State Board respectively for the regulation of ART services.
  • Key powers and functions of the National Board include:
  1. advising the central government on ART related policy matters,
  2. reviewing and monitoring the implementation of the Bill,
  3. formulating code of conduct and standards for ART clinics and banks, and
  4. overseeing various bodies to be constituted under the Bill
  • The State Boards will coordinate enforcement of the policies and guidelines for ART as per the recommendations, policies, and regulations of the National Board.

(7) Offences and penalties

  • Offences under the Bill include:

(i) abandoning, or exploiting children born through ART, (ii) selling, purchasing, trading, or importing human embryos or gametes, (iii) using intermediates to obtain donors, (iv) exploiting commissioning couple, woman, or the gamete donor in any form, and (v) transferring the human embryo into a male or an animal.

  • These offences will be punishable with a fine between five and ten lakh rupees for the first contravention.
  • For subsequent contraventions, these offences will be punishable with imprisonment for a term between eight and 12 years, and a fine between 10 and 20 lakh rupees.
  • Any clinic or bank advertising or offering sex-selective ART will be punishable with imprisonment between five and ten years, or fine between Rs 10 lakh and Rs 25 lakh, or both.
  • No court will take cognizance of offences under the Bill, except on a complaint made by the National or State Board or any officer authorised by the Boards.

With inputs from PRS: https://www.prsindia.org/billtrack/assisted-reproductive-technology-regulation-bill-2020

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Surrogacy in India

Assisted Reproductive Technology Regulation Bill, 2020

Note4Students

From UPSC perspective, the following things are important :

Prelims level : ART

Mains level : Read the attached story

 

The Union Cabinet has approved the Assisted Reproductive Technology Regulation Bill, 2020 to monitor medical procedures used to assist people to achieve pregnancy.

What is ART?

  • Assisted reproductive technology (ART) is used to treat infertility.
  • Assisted reproductive technology includes medical procedures used primarily to address infertility.
  • This subject involves procedures such as in vitro fertilization, intracytoplasmic sperm injection, cryopreservation of gametes or embryos, and/or the use of fertility medication.

Highlights of the bill

  • National Board: The Bill provides for a national Board which will lay down a code of conduct to be observed by those operating clinics.
  • Standardization: It will also formulate minimum standards for laboratory and diagnostic equipment and practices to be followed by human resources employed by clinics and banks.
  • National registry: Under the proposed law, a national registry and registration authority will maintain a database to assist the national Board to perform its functions.
  • Confidentiality clause: The Bill will also ensure confidentiality of intending couples and protect the rights of the child.

Strict punishment:

  • India has one of the highest growths in the number of ART centres and ART cycles performed every year.
  • India has become one of the major centres of this global fertility industry, with reproductive medical tourism becoming a significant activity.
  • This has also introduced a plethora of legal, ethical and social issues; yet, there is no standardisation of protocols and reporting is still very inadequate.
  • The Bill thus proposes stringent punishment for those who practise sex selection; indulge in sale of human embryos or gametes and those who operate rackets.

Other such Bills

Taken together, theses proposed legislations create an environment of safeguards for women’s reproductive rights, addressing changing social contexts and technological advances.

Surrogacy Regulation Bill 2020

  • The Surrogacy (Regulation) Bill, 2020 proposes to regulate surrogacy in India by establishing National Board at the central level and State Boards and Appropriate Authorities in the States and Union Territories.
  • The major benefit of the Act would be that it will regulate the surrogacy services in the country.
  • While commercial surrogacy will be prohibited including sale and purchase of human embryos and gametes, ethical surrogacy to the Indian Married couple, Indian Origin Married Couple and Indian Single Woman (only widow or Divorcee) will be allowed on fulfillment of certain conditions.
  • As such, it will control the unethical practices in surrogacy, prevent commercialization of surrogacy and will prohibit potential exploitation of surrogate mothers and children born through surrogacy.

Medical Termination Pregnancy Amendment Bill 2020

  • The Medical Termination of Pregnancy Act, 1971 (34 of 1971) was enacted to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.
  • The said Act recognised the importance of safe, affordable, accessible abortion services to women who need to terminate pregnancy under certain specified conditions.
  • Besides this, several Writ Petitions have been filed before the Supreme Court and various High Courts seeking permission for aborting pregnancies at gestational age beyond the present permissible limit on the grounds of foetal abnormalities or pregnancies due to sexual violence faced by women.

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Surrogacy in India

Fine-tuning the Surrogacy Bill

Note4Students

From UPSC perspective, the following things are important :

Prelims level : ART, Surrogacy

Mains level : Read the attached story

Context

  • In a recent report, a Select Committee of Parliament has recommended that the contentious clause limiting surrogacy only to “close relatives” to be removed from the Surrogacy (Regulation) Bill, 2019.
  • These recommendations aim to make the benefits of modern technology more easily available to infertile couples.
  • A look at the genesis of the Bill, its provisions and why the current report could signal some progressive amendments in the Bill:

What are the provisions of the Surrogacy (Regulation) Bill?

  • The Surrogacy Bill proposes to allow altruistic ethical surrogacy to intend infertile Indian married couples in the age groups 23-50 years (women) and 26-55 years (men).
  • It was first mooted in 2016 in the wake of repeated reports of exploitation of women who were confined to hostels, not provided adequate post-pregnancy medical care and paid a pittance.
  • The couple should have been legally married for at least five years and should be Indian citizens.
  • They cannot have a surviving child, either biological or adopted, except when they have a child who is mentally or physically challenged or suffers from a life-threatening disorder with no permanent cure.
  • It requires surrogacy clinics to be registered, and national and state surrogacy boards to be formed.
  • It makes commercial surrogacy, and abandoning or disowning a surrogate child punishable by imprisonment up to 10 years and a fine up to Rs 10 lakh.

What changes has the Select Committee suggested?

  • The Select Committee recommended that the “close relatives” clause should be removed, and any “willing” woman should be allowed to become a surrogate mothe.
  • It has strongly backed the ban on commercial surrogacy.
  • It has also recommended that divorced and widowed women aged between 35 and 45 years should be able to be a single commissioning parent.
  • It has emphasised the need for a five-year waiting period for childless married couples could be waived if there is a medical certificate that shows that they cannot possibly conceive.
  • It has recommended that persons of Indian origin should be allowed to avail surrogacy services.
  • It has not, however, recommended expanding the definition of commissioning parent to include singles, either men or women.
  • It also recommended that the ART Bill (which deals with assisted reproductive technologies) should be brought before the Surrogacy bill so that all the highly technical and medical aspects could be properly addressed.

What is the ART Bill?

  • The Assisted Reproductive Technology (Regulation) Bill has been in the making since 2008.
  • It aims to regulate the field through registration of all IVF clinics and sperm banks, segregation of ART clinics and gamete banks etc.
  • It also requires national and state boards to be established for the purpose of regulation of the fertility market.
  • The Select Committee report says: “Surrogacy is a part and parcel of ART and hence the Surrogacy Bill should come into force only after the enactment of ART Bill.
  • Bringing Surrogacy Bill before the ART will be irrelevant and also create duplication of Boards.
  • The Standing Committee on Health and Family Welfare, too has “strongly recommended” to the government that the two Bills should be brought together and not in isolation.

How big is India’s surrogacy market?

  • Estimations by the ICMR put it around 2,000-odd babies per year through commercial surrogacy — when a woman is paid an agreed sum for renting her womb.
  • CII figures say surrogacy is a $2.3-billion industry fed by a lack of regulations and poverty.

What happened the last time the Bill was scrutinized by a parliamentary panel?

  • The Bill was earlier scrutinized by the Parliamentary Standing Committee on Health and Family Welfare.
  • That committee had recommended that compensation should be the norm and the word “altruistic” should be replaced with “compensated”.
  • Couples — including those in live-in relationships — should be allowed to choose surrogates from both within and outside the family. Altruistic surrogacy, it observed, is tantamount to exploitation.
  • The “close relative” condition is open to misuse in a patriarchal setup, the committee had observed.
  • Given the patriarchal familial structure and power equations within families, not every member of a family has the ability to resist a demand that she be a surrogate for another family member.
  • A close relative of the intending couple may be forced to become a surrogate which might become even more exploitative than commercial surrogacy.
  • These recommendations were not accepted by the government.

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