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Updated: October 27, 2013 14:20 IST

Gaps in surrogacy bill

Aarti Dhar
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The draft, health activists claim, is unfavourable towards surrogates. Photo: K. Ananthan
The Hindu The draft, health activists claim, is unfavourable towards surrogates. Photo: K. Ananthan

Fix ambiguities in the draft bill dealing with surrogacy before rushing to finalise it, health activists urge the government

Women’s health activists have asked the Centre not to rush into finalising the ‘Assisted Reproductive Technologies (Regulation) Bill, 2013’ and, instead, hold wider deliberations with women’s rights organisations, queer rights, human rights and legal rights organisations across the country.

In its response to the Draft Bill, Sama Resource Group for Women and Health, while appreciating the initiative of the Union Ministry of Health and Family Welfare (MoHFW) for making efforts to regulate the booming Assisted Reproductive Technologies (ART) industry, including commercial surrogacy, in the country, has said though the Bill acknowledges the importance and significance of ethical practices in the context of ART services, in the present form, it is inadequate in protecting and safeguarding the rights and health of women going for IVF techniques, recruited as surrogates and children born through commercial surrogacy.   

It also lacks setting the standards for medical practice and completely ignores the regulation of the third party agents who play pivotal role in arranging surrogates such as surrogacy agents, tourism operators and surrogacy home operators. 

“The Draft Bill should effectively regulate and monitor consultancies, surrogacy agents, surrogacy home operators, private agencies and travel/tourism firms, law firms involved in offering and promoting ART and surrogacy services.” 

The Bill should permit genetic surrogacy, a simpler, less invasive form of surrogacy and not restrict to the more complicated, expensive and invasive gestational surrogacy. The upper age limit for undergoing assisted reproductive technology procedure should be clearly stated by the Bill.    

The Bill should stipulate the number of cycles a woman can undergo as a surrogate as the number of live births is not equivalent to the number of ART cycles and given the low success rates of ARTs, it often implies multiple cycles for successful outcomes, thus posing serious risks to the surrogate’s health. 

The Draft Bill should clearly list the various health risks and adverse outcomes of these technologies.

“Though the present draft does mention that ART procedure carry health risks both to the mother and child, there is no listing of the risks and adverse outcomes of these technologies for children,” Sama has pointed out. 

No pre-natal testing, sex-selection, foetal reduction or abortion should be done without the permission of the surrogate by the intended parents. Moreover, the intended parents cannot demand or force her to follow a particular diet, religious rituals or lifestyle during pregnancy. 

The pattern of payment to surrogates must be clearly stated in the Bill and should be in the best interests of the surrogate. The present Draft Rules on payment is exceedingly imbalanced and unfavourable towards the surrogate. 

While some of the definitions have been added in the present 2013 draft, changes have been made in definition related to eligibility of accessing ARTs. The present draft defines “Couple” as a relationship between a male person and female person who live together in a shared household through a relationship in the nature of marriage. Therefore, the Bill has confined itself to provision of ARTs within a heteronormative framework. It is also clear that as per the definition gay couple(s) cannot access ARTs in India, once the Bill is implemented. Current clause in the Draft Bill is discriminatory, baseless, and a violation of rights to equality, freedom, and reproduction, claims Sama. 

The status of the child in case of death of the individual or couple (married) commissioning surrogacy needs to be taken cognisance in the proposed Bill.

This is important not only in cases of trans-national surrogacy (where there might be concerns related to citizenship), but also in cases of surrogacy for Indian individual or couple.

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