Surrogacy in India - A Law in the Making

Despite the legal, moral and social complexities that shroud surrogacy, there is nothing stopping people from exploring the possiblility of becoming a parent. Women who may choose to `rent` there womb for a a surrogate pregnancy are slowly shaking off their inhibition and fear of social ostracism to bring joy to childless couples. However, India`s Assisted Reproductive Technology (Regulation) Bill, 2014, have legal lacunae, lacks the creation of a specialist legal authority for adjudication and determination of legal rights of parties by a judicial verdict, and falls into conflict with existing laws. These pitfalls may be the graveyard of this proposed new law. New Indian medical visa guidelines, 2012 have restricted commissioning of surrogacy arrangements in India to foreign men and women only whose marriage should have sustained for atleast two years. Single parents, gay couples or unmarried partners can no longer commission surrogacy on tourist visas to india and the ART Bill, 2014 restricts surrogacy to infertile marred couples only. The Indian Council of Medical Research (CMR) working under the auspices of the Ministry of Health and Family Welfare finalised the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India in 2005 after extensive public debate all over the country from all stake holders. Under these 2005 guidelines, there was no legal bar to the use of Artificial Reproductive Technology (ART) by a single or an unmarried woman and the child born would have legal rights on the woman or man concerned. Thereafter, the draft Assisted Reproductive Technology (Regulation) Bill, 2008 (ART Bill 2008), the draft Assisted Reproductive Technology (Regulation) Bill, 2010 (ART Bill 2010) and the draft ART Bill 2013, stated to be revised based on the recommendations of the Ministry of Law and Justice, have consistently proposed that ART in India would be available to all persons including single persons and foreign couples. The draft ART Bill 2013, an exhaustive document containing 100 sections addressing various issues relating to ART was stated to be ``Top Secret`` being a part of the Cabinet note as per the requirement and procedure of the handbook of the Cabinet secretariat on Cabinet notes. The exercise of drafting the 2008, 2010 and 2013 Bill was entrusted to a 12 Member Specialist drafting Committee besides constituting a national Advisory Committee on ART under the Chairmanship of the Director General, ICMR. The drafting Bill and Rules of 2008 and 2010 were extensively circulated for public opinion besides being sent to State Governments, institutions, statutory bodies, NGOs and other stake holders besides medical professionals. The 2013 Draft Bill was however not circulated or put in the public domain for discussion, comment or opinion. Whilst the Bill never became a law, the Indian Council for Medical Research Guidelines, 2005 provide the only non-statutory provisions which are neither justiciable nor enforceable in a Court of law. The medical visa guidelines further qualify the ICMR guidelines with restrictions. On September 30, 2015, A draft Bill titled ``The Assisted Reproductive Technology (Regulation) Bill, 2014`` has been cifculated in public domain for general public/stakeholders inviting suggestions/comments within 45 days. This 2014 Bill, circulated by the Ministry of Health and Family Welfare, Government of India is enclosed as Appendix XI with this book. It contemplates that surrogacy shall be available to all married infertile couples thereby, debarring single persons from surrogacy. It proposes to disallow surrogacy for foreigners but makes it permissible for Overseas Citizens of India (OCIs), People of Indian Origin (PIOs), Non-Resident Indian (NRIs) and foreigners married to Indian citizens with two years of marriage who will have to obtain a Medical Visa for surrogacy in India. The Bill further proposes foreign nationality for such surrogate children of above foreign commissioning parents with limited entitlement of Overseas Citizen of India (OCI) status under the Citizenship Act, 1955. The Bill disentitles Indian Citizenship to such surrogacy thus remains uncertain with vast different policy changes on the subject.