“Better late than Never”, they say. The completion of the draft “Assisted Reproductive Technology Regulation Bill, 2010” by the 12-member committee headed by Dr. P. M. Bhargava under the Indian Council of Medical Research comes as welcome respite. If this Bill is passed by the Indian Parliament and if it goes on to become a Law, it will be the first of its kind in India to regulate Assisted Reproductive Technology. Although Indian Council of Medical Research (IMCR) had framed guidelines, these guidelines lacked the necessary force and were silent on many important aspects.
There is a humungous demand for surrogate mothers in India. There are various reasons for such demand. The main reasons being the fact that Surrogates can be found at almost 1/4th the price which surrogates in other countries charge and secondly, that Assisted Reproductive Technology sector in India is still unregulated. Some of the recent events have highlighted the importance of a legislation to govern Assisted Reproductive Technology sector.
Israeli Gay Father Dan Goldberg was stranded in Mumbai for three months with his twin babies born of a surrogate Indian mother after the Israeli Interior Ministry refused to grant Passport and Israeli Citizenship for his twin babies. Mr. Dan Goldberg finally received a positive response from the Interior Ministry of Israel which granted Passports to his twin babies to return home. Earlier a family Court in Israel had disallowed paternity tests from being conducted to ascertain the fatherhood of Mr. Dan Goldberg. However, the paternity test which was subsequently performed after intense diplomatic pressure established fatherhood of Mr. Dan Goldberg.
In another episode, a German couple Jan Balaz and Susan Anna Lohlad, after two years of legal battle, were finally allowed to take their surrogate sons Nicholas and Leonard, born to Indian Surrogate Mother, back home, after the German Authorities granted Visas to the babies. Earlier German Authorities had refused citizenship to the babies on the ground that the German Laws did not recognize Surrogacy. The babies were born in 2008 and were without a citizenship for two years.
In India Gay Marriages are still not legal. As on today, Gay and Lesbian relationships have only been decriminalized. However they have not been legalized, as under the present laws the Definition of Couple is “persons living together and having sexual relation that is legal in India. Gay and Lesbian Couples, both Indian and Foreign cannot have children born with the help of Indian Surrogate Mother, till gay and lesbian relationships are legalized in India.
The Assisted Reproductive Technology Regulation Bill, 2010, contemplates that the Foreigners coming to India to rent a Womb will have to produce two documents- (a) Confirming that the country of their residence recognizes Surrogacy as Legal, and (b) undertaking that the country will give citizenship to children born of such surrogacy. A Local Guardian will have to be appointed for the Surrogate Mother. If the Parents fail to take delivery of the Children within one month of their birth, then the Surrogate mother will be legally obliged to hand over the child to any adoption agency. In such cases the baby will get Indian Citizenship.
Many childless couples who avail the services of a Surrogate Mother sign a contract with the surrogate mother. But even then, the sanctity of such a contract remains doubtful. So do the rights of the Surrogate mother over the baby she carries.
Issues like death of Surrogate Mother during pregnancy remains unclear. And, the real problem arises after the birth of the baby. In the absence of any clear laws on the issue, foreigners are unable to get legal assistance when it comes to taking their child back to their home country.
With the completion of the draft “Assisted Reproductive Technology Regulation Bill, 2010”, it is hoped that Surrogacy will be addressed at last.
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