Dr. G. DAMODAR ASSOC PROFESSOR

DEPT OF FORENSIC MEDICINE

(1) This Bill (NO 257 of 2016) may be called The Surrogacy (Regulation) Act 2016,

(2) It extends to the whole of India except the State of Jammu and Kashmir. (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette,

The Surrogacy Regulation Bill was announced almost a year ago i.e. in August 2016 by Union

minister Sushma Swaraj, who headed the council of ministers on this bill.

The Surrogacy Bill was introduced in

Lok Sabha on 21 November, 2016,and was referred to the department -related Parliamentary Standing

Committee on Health and Family Welfare, with public asked to send suggestions by the last date

of 13 April, 2017.

Thereafter, an extension was sought till 11 July 2017, with the committee scheduled to deliver its report to Parliament this month for debate during the parlment session july-Aug- 2016. But at the last minute, it asked for a further extension and a fresh date

has been set — 11 September, 2017.

Over a couple of centuries the desire to beget a child for an infertile couple was being satisfied by adoption.

Surrogacy came known to people when the world’s second and India’s first IVF baby was born in OCT 3, 1978 in Calcutta And India created history by being the first country to

legalise commercial surrogacy in 2002. India is considered as a major destination for foreigners for ART services particularly for surrogacy practices.

As a result, the surrogacy business is well-established in India, with an estimated annual turnover of billion dollars.

But, surrogacy practices in India remain largely unregulated.

a Japanese doctor couple commissioned a baby in a small town in Gujarat. The surrogate mother gave birth to a healthy baby girl.

By then the couple had separated and the baby was both parentless and stateless, caught between the legal

systems of two countries. The child is now in her grandmother’s custody in Japan but has not

obtained citizenship, as surrogacy is not legal in Japan

On January 29, 2014, 26-year-old Yuma Sherpa died in the result of a surgical procedure to harvest eggs from her body, as part of the egg

donation programme of a private clinic based in New Delhi. And there have been reported incidents

concerning unethical practices, exploitation of surrogate mothers,

and importing human embryos and gametes.

These incidents highlighted and resulted in a number of public interest litigations in the Supreme Court to control

commercial surrogacy.

The 228th report of the Law Commission of India also recommended prohibiting commercial surrogacy and

allowing ethical altruistic surrogacy to needy Indian citizens by enacting a suitable legislation.

the Surrogacy (Regulation) Bill, 2016 was introduced by Minister of Health and Family Welfare in Lok Sabha.

and The Union Cabinet chaired by the Hon’ble Prime Minister Shri Narendra Modi has given its approval for introduction of the "Surrogacy (Regulation) Bill, 2016". On 24-August-2016.

Regulate surrogacy in India by establishing

- National Surrogacy Board at Central level, State Surrogacy Boards

and Appropriate Authorities in States

or Union Territories.

The proposed legislation ensures effective regulation of surrogacy,

to prohibit commercial surrogacy and allow ethical surrogacy

to the needy infertile Indian couples.

1.Chairperson,. Minister in-charge of the Ministry of Health and Family Welfare,

2. Vice-Chairperson Secretary to the Government of India in- charge of the Department dealing with the surrogacy matter

3. Members Three women Members of Parliament of whom two shall be elected by the

House of the People and one by the Council of State as Members

National Surrogacy Board shall exercise the powers and shall perform functions conferred on the Board under this Act

The state Board shall consist as Chairperson, above the rank of the Joint Director of

Health and Family Welfare Department, an eminent woman representing women’s organization,

as member, an officer of Law Department of the State Or

the Union territory concerned not below the rank of a Deputy Secretary, as

member and an eminent registered medical practitioner, as a member

The surrogacy clinics shall be registered under The Surrogacy (Regulation) Act 2016, after the Appropriate Authority is satisfied that such clinics are in a position to provide facilities and can maintain equipments and standards including specialized manpower , physical infrastructure and diagnostic facilities as may be prescribed in the rules and regulations.

No person, organization, surrogacy clinic, laboratory or clinical establishment of any kind shall undertake commercial surrogacy,

exploit the surrogate mother, sell human embryo or import embryo for the purpose of surrogacy. Violation to the said provision shall be an offence punishable with

imprisonment for a term which shall not be less than ten years and with fine which may extend to ten lakh rupees.

The surrogacy clinics shall have to maintain all records for a

period of 25 years

1. To regulate surrogacy services in the country, 2.To provide altruistic ethical surrogacy to the

needy infertile Indian couples, 3.To prohibit commercial surrogacy including sale

and purchase of human embryo and gametes, 4.To prohibit potential exploitation of surrogate

mothers and 5,To protect the rights of children born through

surrogacy.

1. According to the Bill, only Indian couples, who have been married for at least 5 years can opt for

surrogacy, 2. Only close relatives, not necessarily related by blood,

will be able to offer altruistic surrogacy to the eligible couples.

3. The new Bill has put a complete ban on commercial surrogacy.

4. It also bans unmarried people, and homosexuals from opting for altruistic surrogacy.

Now, foreigners, even Overseas Indians, cannot commission surrogacy.

5. A woman can become a surrogate mother only for altruistic purpose and under no circumstances she will be

paid for it, although payment can be made towards medical expenses.

6.Surrogacy regulation board will be set-up at both Central and

State-level. 7. The law will be applicable to the whole of India,

except for the state of Jammu and Kashmir. 8. All Assisted Reproductive Technology (ART) clinics will need to be

registered. 9. Surrogacy clinics will be allowed to charge for the services

rendered in the course of surrogacy, but the surrogate mother cannot be paid.

10. Commercial surrogacy, , exploitation of surrogate mother, selling/import of human embryo

have all been catagarized as violations that are punishable by a jail term of at least 10 years and a fine of up to Rs 10 lakh. 11.Under the new bill, the clinics will have to maintain records of

surrogacy for 25 years. 12. The surrogate child will have the same rights of as that of a

biological child.

It is the form of surrogacy where the surrogate mother receives

no financial reward for her pregnancy however,

usually all expenses related to the pregnancy and birth are paid to her by the

intended parents such as medical expenses,

baby delivery expenses, her additional nutrition and other related expenses

To allow altruistic ethical surrogacy to intending infertile couple between the age of 23- 50 years for

female and 26-55 years for male . The intending couples should be legally married for at least

five years and should be Indian citizens. The intending couples have not had any surviving child

biologically or through adoption or through surrogacy earlier

except when they have a child and who is mentally or physically challenged

Or suffer from life threatening disorder with no permanent cure.

BY SAROJINI NADIMPALLY, DEEPA VENKATACHALAM AND ASWATHY RAVEENDRAN ON 16/08/2017 • LEAVE A COMMENT

While the committee’s recommendations do improve on the draft Bill,

there are no details on regulating IVF clinics and the surrogate’s autonomy is not respected at all points.

The surrogate mother should be a close relative of the intending couple and should be between the age of 25-35 years.

She can act as surrogate mother only once. The surrogate mother will carry a child which is genetically

related to the Intending Couple. . An insurance coverage of reasonable and adequate amount

shall be ensured in favour of the surrogate mother.

In india most of the woman who agrees to act as a surrogate is due to their financial necessity.

The proposed ban on commercial surrogacy will prevent those women from acting as a surrogate and thereby obtain the required money.

It may force such women to do other illegal acts such as prostitution or theft for finding the money....

The ban on commercial surrogacy is only due to the fact that there is a chance of exploitation of surrogate mother.

there are various filed of activities were there is a chance for exploitation, the best way to prevent such exploiation is not porhibiting the activity as

such rather a strong regulation can take care of such problems. Therefore, the ban on commercial surrogacy on the ground of exploitation is

irrational Any restriction on such right should be considered as a violation of his right

to enjoy the benefits of scientific and technological progress....

4. It also bans unmarried people, and homosexuals from opting for altruistic surrogacy. Now, foreigners, even Overseas Indians, cannot commission surrogacy.

limiting surrogacy only to Indian citizens is a measure which is against the contemporary developments in international trade relations.

1.Surrogacy could be argued as a treatment for some forms of childlessness;

for example, post-hysterectomy or malignancy. 2.Documentary evidence of the financial arrangement for surrogacy must be available. 3. payment in case of a miscarriage (whereby proof is usually

needed, and the reduction in payment depends on the gestation), stillbirth or intrauterine death.

4,Additional payment is usually offered in the case of unplanned surgery, for example, hysterectomy.

5.The postnatal period remains the most cautious and anxious period for both the surrogate and intended parents.

6.There is no case law to provide guidance regarding the

period of time from delivery to when the baby is handed over to the intended parents.

7.The hospital's risk management and legal team should be informed regarding whether they are prepared to discharge the surrogate mother and baby separately.

• 8.it is necessary to examine and regulate medical fitness and medical attention should be given to surrogate mother till 3 months after delivery.

• 9. Forced to deliver by C-section • C-sections carry a risk of death during childbirth • 10.Short-term effects – pyrexia, fatigue, back pain and swelling of

joints etc • 11.Long term effects - from scarring, varicose veins ,loose skin etc • 12. Psychological distress

As every coin has two sides, surrogacy also has positive & negative aspects.

It is favourable for infertile couples to have a child and also help to improve lower economic status of surrogate

mother.

Unfavourably this may lead to violation of surrogacy agreement due to no legal enforcement or punishment

available. It may also lead in increase in commercialization and marketing of women for their Reproductive capacity. It exploits the emotional and physical state of mother

and there is no legal provision to safeguard the mother.

1. Surrogacy will not be allowed for – Homosexual couples Single parents Couples in live-in relationships Foreigners Couples with children Attempts at commercial surrogacy 2. Couple must be married for atleast 5 years.

3. Either one of couple must have proven infertility. 4. Only Indian citizens; NRIs are also not included 5. Age of couple: 23-50 for females and 26-55 for males. 6. Women can be surrogates only once and a married couple can only have one surrogate child. 7. The couple should employ an “altruistic relative”, i.e. the surrogate mother should be a relative who is sympathetic to the situation. 8. Egg donation is banned.