Surrogacy in India

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

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.

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.

Surrogacy in India

[op-ed snap] Our notions of motherhood

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Surrogacy

The Lok Sabha passed the Surrogacy (Regulation) Bill 2019. to regulate the practice of surrogacy in India and allow only “ethical altruistic surrogacy”.

Challenges

  1. Heavy reliance on criminal law for managing social issues, criminalisation of choice and prejudiced ideas of what constitutes a family.
  2. Disallows single, divorced or widowed persons, unmarried couples and homosexual couples from pursuing surrogacy to have children.
  3. It stipulates that only a man and woman married for at least five years, where either or both are proven infertile, can avail of surrogacy.

Why the provisions are discriminatory

  1. India’s jurisprudence recognises the reproductive autonomy of single persons, the rights of persons in live-in relationships and fundamental rights of transgenders.
  2. In Navtej Singh Johar vs Union of India, Supreme Court decriminalised consensual same-sex between consenting adults and held that the law cannot discriminate against same-sex partnership.
  3. Single persons have the right to adopt children in India.
  4. Guidelines issued by Indian Council of Medical Research in 2002 and the draft Assisted Reproductive Technologies (Regulation) Bills 2010 and 2014 had permitted commercial surrogacy
  5. Criminalisation of commercial surrogacy is a refusal by the state to actually consider the exercise of agency that leads a woman to become a surrogate mother. 
  6. A ban on commercial surrogacy stigmatises this choice and reinforces the notion of the vulnerable “poor” woman who does not understand the consequences of her decisions and needs the protection of a paternalistic State.
  7. In our patriarchal society, it can be expected that young mothers will be coerced into becoming surrogates for their relatives. The Bill moves the site of exploitation into the private and opaque sphere of the home and family.

Altruistic surrogacy

  1. The shift to altruistic-only surrogacy was made in the context of reports about cases of surrogate babies being abandoned and exploited
  2. Problems of surrogate mothers being kept in “surrogacy brothels” and rich foreigners using the bodies of poor Indian women to have children.
  3. PIL in Jayashree Wad vs Union of India sought to end commercial surrogacy in India. Based on court judgement, the government declared that it did not support commercial surrogacy and would allow only infertile Indian couples to avail of altruistic surrogacy.
  4. There is a danger of exploitation and abuse in commercial surrogacy.

Way ahead

  1. Exploitation takes place because of the unequal bargaining power between the surrogate mother and the surrogacy clinics, agents and intending parents. This can be addressed by a strong regulatory mechanism with transparency and mandating fair work and pay for the surrogate mothers.
  2. Viewing commercial surrogacy as inherently exploitative and banning it expands the potential for exploitation as it would force the business underground.
  3. The Standing Committee had recommended a model of compensated surrogacy which would cover psychological counselling of the surrogate mother and/or her children, lost wages for the duration of pregnancy, child care support, dietary supplements and medication, maternity clothing and post-delivery care.

Surrogacy is an important avenue for persons to have a child through a willing surrogate mother who can also benefit monetarily from the process.

Surrogacy in India

The Surrogacy (Regulation) Bill, 2019

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Key provisions of the bill

Mains level : Analysis of the bill

News
 The Lok has passed the Surrogacy (Regulation) Bill, 2019 by a voice vote.
 The Bill seeks to ban commercial surrogacy and provides for constituting a National Surrogacy Board, State Surrogacy Boards, and the appointment of authorities for its regulation of practice and processes.

Defining Surrogacy
 The Bill 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
 The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.
 Altruistic surrogacy involves no monetary compensation to the surrogate  mother other than the medical expenses and insurance coverage during the pregnancy.
 Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

Purposes for which surrogacy is permitted
Surrogacy is permitted when it is:
 for intending couples who suffer from proven infertility;
 altruistic;
 not for commercial purposes;
 not for producing children for sale, prostitution or other forms of exploitation; and
 for any condition or disease specified through regulations.

Eligibility criteria for intending couple
 The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
 A certificate of essentiality will be issued upon fulfillment of the following conditions:
1. a certificate of proven infertility of one or both members of the intending couple from a District Medical Board;
2. an order of parentage and custody of the surrogate child passed by a Magistrate’s court; and
3. insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
 The certificate of eligibility to the intending couple is issued upon fulfillment of the following conditions:
1. the couple being Indian citizens and married for at least five years;
2. between 23 to 50 years old (wife) and 26 to 55 years old (husband);

3. they do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life-threatening disorder or fatal illness; and
4. other conditions that may be specified by regulations.

Eligibility criteria for surrogate mother
To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
 a close relative of the intending couple;
 a married woman having a child of her own;
 25 to 35 years old;
 a surrogate only once in her lifetime; and
 possess a certificate of medical and psychological fitness for surrogacy.  Further, the surrogate mother cannot provide her own gametes for surrogacy.

Appropriate authority
 The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act.
 The functions of the appropriate authority include;

1. granting, suspending or cancelling registration of surrogacy clinics;
2. enforcing standards for surrogacy clinics;
3. investigating and taking action against breach of the provisions of the Bill;
4. recommending modifications to the rules and regulations.

Registration of surrogacy clinics
 Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority.
 Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.

National and State Surrogacy Boards
 The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively.
 Functions of the NSB include, (i) advising the central government on policy matters relating to surrogacy; (ii) laying down the code of conduct of surrogacy clinics; and (iii) supervising the functioning of SSBs.

Parentage and abortion of surrogate child
 A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.
 An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority.
 This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971.
 Further, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.

Offences and penalties
 The offences under the Bill include:
1. undertaking or advertising commercial surrogacy;
2. exploiting the surrogate mother;
3. abandoning, exploiting or disowning a surrogate child; and
4. selling or importing human embryo or gametes for surrogacy.

 The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.
 The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.

Surrogacy in India

[op-ed snap] Great expectations: on Surrogacy Bill

Note4Students

From UPSC perspective, the following things are important :

Mains level : Nothing much

CONTEXT

Surrogacy needs to be regulated by law. 

Need for the law

  1. The issue of surrogacy is fraught with bioethical issues
  2. Regulations in the past in the area of child adoption and transplantation of human organs have borne fruit, putting an end to rampant commercial transactions 
  3. Flagrant violations of human rights have been witnessed repeatedly in the ‘baby-making factory’ in India – mostly with underprivileged women in the crosshairs and at the bottom of the pile. 
  4. Unregulated assisted reproductive techniques (ART) clinics mushroomed 
  5. India became a global health-care destination and there is a good volume of traffic toward the country along with growing domestic demand for surrogacy services

The bill should balance the purpose of regulating the complex area of surrogacy, while sensitively balancing the needs of ‘intending parents’ and surrogates.

Provisions of the bill

  1. The Bill mandates payment to the surrogate mother, who can only be a ‘close relative’, to the extent of covering medical expenses and providing insurance during the term of the pregnancy.
  2. It has specified that ‘exploiting the surrogate mother’ would attract punishment of imprisonment of up to 10 years and a fine of up to ₹10 lakh
  3. Advertising for surrogacy and selling/importing human embryos or gametes for surrogacy also attract the same punishment.
  4. It has mandated registration of surrogacy clinics and put in place regulatory boards to ensure compliance with the law. 

Challenges

  1. Lack of specifics in definitions
    1. generalized ‘close relative’ criterion for surrogates
    2. the exclusion of various groups of people from access to surrogacy: only married couples of a certain age group are eligible
    3. seeking to regulate surrogacy before setting the ART house in order
  2. The capacity of the state to end commercial surrogacy may itself be compromised if it does not first set up a regulatory framework for ART clinics, which provide the basic technology for surrogacy

Surrogacy in India

Cabinet clears Bill banning Commercial Surrogacy

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Surrogacy

Mains level : Surrogacy regulation in India

  • The Union Cabinet has approved the introduction of the Surrogacy (Regulation) Bill, 2019 to ban commercial surrogacy in India.

Background

  • India has emerged as a surrogacy hub for couples from other countries.
  • There have been reports concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy, and rackets involving intermediaries importing human embryos and gametes.
  • The 228th report of the Commission of India has recommended prohibiting commercial surrogacy and allowing altruistic surrogacy by enacting suitable legislation.

What is Surrogacy?

  • Surrogacy is considered one of many assisted reproductive technologies.
  • It is an arrangement, often supported by a legal agreement, whereby a woman (the surrogate mother) agrees to become pregnant and give birth to a child for another person(s) who is or will become the parent(s) of the child.
  • People may seek a surrogacy arrangement when pregnancy is medically impossible, when pregnancy risks are too dangerous for the intended mother, or when a single man or a male couple wishes to have a child.

About the Bill

  • The Bill proposes to regulate surrogacy in India by establishing National Surrogacy Board at the central level and State Surrogacy Boards and Appropriate Authorities in the State and UTs.
  • It aims to prohibit commercial surrogacy and allows surrogacy services only for married Indian couples who have no children.

Why such bill again?

  • The Bill had been passed by the 16th Lok Sabha but lapsed after it did not clear the Rajya Sabha.
  • There have been several reports about the exploitation of surrogate mothers, who are confined to “hostels” during pregnancy.
  • They are not allowed to meet their families and were forced to do it for a paltry amount, putting their own bodies at risk.

Benefits

  • The benefits 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 embryo and gametes, ethical surrogacy to the infertile couples will be allowed on fulfillment of conditions.
  • It will also prohibit exploitation of surrogate mothers and children born through surrogacy.

Assist this newscard with:

Explained: Altruistic Surrogacy

 

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