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India: Draft Legislation Regulating Assisted Reproductive Technology Published

(Nov. 2, 2015) On September 30, 2015, India’s Ministry of Health and Family Welfare, through its Department of Health Research, published for public and stakeholder comments draft legislation regulating assisted reproductive technology (ART). (Sushmi Dey, Foreigners May Be Barred from Commissioning Surrogacy in India, TIMES OF INDIA (Oct. 16, 2015).) According to the Director of the Department of Health Research, “[t]the proposed legislation aims at proper regulation and supervision of … (ART) clinics and banks in the country, and for prevention of misuse of this technology, including surrogacy, and for safe and ethical practice of ART services.” (Memorandum from Sanjeev Chadha, Director, Department of Health Research, Subject: The Assisted Reproductive Technology (Regulation) Bill (Draft Bill) (Sept. 30, 2015), ICMR website (with text of the 2014 draft bill attached).)

Background

India is the main destination in the world for commercial surrogacy, primarily due to its “modern medical infrastructure,” low costs, almost nonexistent regulations, and abundant availability of surrogates. (Normann Witzleb & Anurag Chawla, Surrogacy in India: Strong Demand, Weak Laws, in SURROGACY LAW & HUMAN RIGHTS 168 (Paula Gerber & Katie O’Byrne eds. 2015).) The Indian Council of Medical Research (ICMR), India’s main body for advancing biomedical research, and the National Academy of Medical Sciences have issued nonbinding national guidelines on ART. (Ministry of Health and Family Welfare & ICMR, National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India (2005), ICMR website.)

In 2012, the Ministry of Home Affairs issued new visa rules that stipulated a number of conditions, including a bar on single people, unmarried couples, or gay couples from receiving a medical visa for commissioning surrogacies in India. This rule stipulates that a visa will be issued subject to the condition that “[t]he foreign man and woman are duly married and the marriage should have [been] sustained at least for two years.” (Surrogacy, Bureau of Immigration, Ministry of Home Affairs, website (last updated Nov. 24, 2014).) However, comprehensive legislation regulating surrogacy and ART clinics has yet to be enacted. The lack of regulations has raised a number of ethical concerns, particularly regarding the exploitation and abuse of surrogate mothers. (India Bans Foreigners from Hiring Surrogate Mothers, GUARDIAN (Oct. 28, 2015); Tariq Ahmad, India: Regulation of Surrogacy and Fertility Clinics, in Law Library of Congress, Bioethics Legislation in Selected Countries 42 (Oct. 2012).)

Some of the Provisions of the Draft Legislation

The draft legislation, if passed, would establish a National Board for Assisted Reproductive Technology, with a head office to be located in New Delhi, at the Department of Health Research in the Ministry of Health and Family Welfare. (Draft Bill, § 3(3).) The draft law regulates the Board’s composition, selection, qualifications, and procedures. The Board’s functions are to take “measures to develop new policies in the area of Assisted Reproductive Technology and to assist the State Boards in accreditation and regulation of services of Assisted Reproductive Technology Clinics and Banks in the country.” (Id. § 17(1).) State-level boards would also be established. (Id. § 22.)

All ART clinics and banks would be required to be registered at a state-level registration authority and on a National Registry established by the draft legislation. (Id. § 36).) The draft also sets out the general duties of assisted reproductive technology clinics and banks. (Id. Ch. IV.)

In addition, the draft law includes a number of provisions on rights and duties in relation to surrogacy, which include requirements regulating commercial surrogacy. It stipulates that “[s]urrogacy for foreigners in India shall not be allowed but surrogacy shall be permissible to Overseas Citizen [sic] of India (OCIs), People of Indian Origin (PIOs), Non Resident Indians (NRIs) and [a] foreigner married to an Indian citizen.” (Id. § 60 (11)(a).) Even these couples, when seeking to commission surrogacy, would be subject to certain conditions, including that they “be married and the marriage should have [been] sustained at least for two years” and that they submit “a certificate conveying that the woman is unable to conceive their own child and the certificate shall be attested by the appropriate government authority of that country.” (Id. § 60 (21)(a)(i-ii).)

The couple commissioning a surrogacy through the use of ART would be required to enter into a surrogacy agreement with the surrogate, “which shall be binding on the parties.” (Id. § 60 (1).) The commissioning couple is “legally bound to accept the custody of the child or children irrespective of any abnormality that the child or children may have.” (Id. § 60 (11)(b).) The surrogate must relinquish all parental rights over the child or children. (Id. § 60(4).) The surrogate mother is also required to be an “ever married Indian woman with minimum twenty three years of age and maximum thirty five years of age … .” (Id. § 60(5); Catalogs: Ever Married and Currently Married Population by Age at Marriage, Duration of Marriage and Educational Level – India and States, DATA.GOV IN (last visited Nov. 2, 2015).)

Next Steps

The Draft Assisted Reproductive Technology Bill has gone through a number of revisions over the years based on recommendations and suggestions made by different ministries and departments of the central government. (Arti Dhar, Ministries Consulted on Assisted Reproductive Technology Bill, HINDU (Nov. 23, 2015).) Currently, reports state that it might be tabled in the winter session of Parliament. (Durgesh Nandan Jha, New Law to Clip Wings of Rent-a-Womb Biz, TIMES OF INDIA (Oct. 20, 2015).)