This is the eternal emotion of love and protection a child has for the mother, and

just as a mother gives birth to a child, the child also gives birth to a mother and
by making the family complete, it makes for a happy marriage. However, some
couples
are unable to bear a child in the natural manner, despite a strong desire to have
a
child of their own, therefore, they do not go for adoption, rather they seek the
help of surrogate technology.
Surrogacy can be defined as a woman carrying a pregnancy and giving birth to a
baby
to another woman. This arrangement can be voluntary and gratuitous, as well
as,
paid as any commercial transaction according to the agreement between the
commissioning couple and the woman who agrees to bear the child.
Another type of surrogacy is called altruistic surrogacy, where the surrogate
receives no financial reward for bearing or relinquishing the child. In India, all
three types of surrogacy are permitted as per law.
For the past two or three years, newspapers have been full of news articles on
Baby
Manji, a surrogate child of a Japanese couple who was involved in legal hassles of
getting a visa for the child born in Gujarat. Finally, the Supreme Court of India
came to her rescue by giving custody of the child to her grandmother.
India became the surrogacy capital of the world, as surrogacy in India is simpler
and more cost effective than anywhere else in the world. In 2008, the Supreme
Court
of India held that commercial surrogacy is permitted in India, and therefore there
is manifold increase in the international confidence in going for surrogacy in
India. However, there are many reports of the surrogate mother being exploited
by
the commissioning parents due to a lack of regulatory mechanisms or proper
laws
relating to surrogacy in India.
Till date, only guidelines of Indian Council of Medical Research exist for
accreditation, supervision and regulation of ART Clinics in India. The code of
practice as per these guidelines are as follows:

The ART Clinic must not be a party to any commercial element in donor
programmes
or in gestational surrogacy.
No ART procedure shall be done without the spouses consent.
Sex selection at any stage i.e. both before and after fertilization or abortion of
embryos of any particular sex should not be permitted except to avoid the risk of
transmission of a genetic abnormality assessed through genetic testing of
biological parents or through pre-implantation genetic diagnosis (PGD).

 Use of sperm donated by a relative or a known friend of either the wife or the
husband should not be permitted. It will be the responsibility of the ART clinic to
obtain sperm from appropriate banks.
The committee has recommended accepting semen only from Semen Bank
and not from the individual. Hence it has also been recommended that Semen
Bank should be an independent organization, if set up by an ART clinic it must
operate as a separate identity.
No relative or a person known to the couple may act as surrogate.
Surrogacy by assisted conception should normally be considered only for
patients for whom it would be physically or medically impossible/undesirable to
carry a baby to term.
The genetic (Biological) parents must adopt a child born through surrogacy.
After a specific consent, the embryos may be stored for five years and stored
embryos may be used either for other couple or for research after taking the
consent of the couple to whom the embryos belongs.
The sale or transfer of human embryos or any part thereof, or of gametes in
any form and in way that is directly or indirectly to any party outside the country
must be prohibited.
Human cloning for delivering replicas must be banned.
Stem cell cloning and research on embryos (less than 15 days old) needs to be
encouraged.
A child born through ART should be presumed to be the legitimate child to the
couple, born within wedlock and all the attendant rights of parentage, support
and inheritance.
Though there is no legal bar on an unmarried or single woman going for AID
(Artificial insemination with donor), however it is universally recommended that
AID should be performed only on married woman and that, too, with the written
consent of her husband.
There is an urgent need to have infertility treated like any other disease the
expense of dealing which by authorised ART clinics should be reimbursable e.g.
by the Government or other employer or by the health insurance company, but
for one child only.
Since, many NRIs or foreigners are coming to India, it became imperative for the
Union of India to provide the legal mandate for the protection of parties involved
in the whole process. A draft of the bill titled as Assisted Reproductive
Technologies (Regulation) Bill, 2010 has been prepared and is likely to be place
before the Parliament. However, before presenting the Bill in the Parliament it is
very essential to debate it thoroughly, so that the issues which India has
encountered in January 2008 regarding a German couple whose two children
born to an
Indian surrogage mother, were rendered stateless with neither Indian nor
German

citizenship. Finally, the Supreme Court of India coming to their assistance got
them an exit permit in May 2010. Or a child born to a gay Israeli couple with the
help of a surrogate mother in India also passed through legal hassles for getting
Israeli passport, only after DNA / paternity testing established the baby was the
couples, was it allowed out of India.
Ethically should a woman be paid for being a surrogate mother? How are the
rights
of the surrogate mother and child to be protected? If, the surrogate arrangement
falls apart will it amount to adultery etc. The salient features of the draft Bill
are as follows:
1. Renting of womb is legal in India but there is no law at present to regulate
surrogacy. If Parliament passes the Assisted Reproductive Technology (ART) Bill,
renting a womb by Indian and foreign couples looking for surrogate mothers is
expected to become hassle-free.
2. The Draft Bill gives gays, singles the legal right to have surrogate babies. It
defines a couple as two persons living together and having a sexual
relationship. After the Delhi High Court verdict on homosexuality, even two gay
men can claim to be a couple.
3. A woman in the age-group of 21-35 can become a surrogate mother.
She will be allowed five live births, including her own children.
She will not be allowed to donate oocytes more than six times in her life.
4. In case of a single man or woman, the baby will be his/her legitimate child.
5. A child born to an unmarried couple using a surrogate mother and with the
consent of both parties shall be the legitimate child of both of them.
6. During the gestation period, the couple will bear the surrogates expenses
and give monetary help to her. The couple may enter into an agreement with the
surrogate.
7. Foreign couples must submit two certificates one on their countrys
surrogacy policy and the other stating that the child born to the surrogate
mother will get their countrys citizenship.
8. Foreign couples have to nominate a local guardian who will take care of the
surrogate during gestation.
9. ART banks, accredited by the government, will maintain a database of
prospective surrogates as well as storing semen and eggs and details of the
donor.
10. State boards will give accreditation to ART banks private and government.
The board will have a registration authority which, in turn, will maintain a list of
all In-vitro Fertilisation (IVF) centres and monitor their functioning.
11. The Law Commission of India (2009) described ART industry as a Rs 25,000crore pot of gold. It recommended only altruistic surrogacy arrangements and
not commercial ones. But the Draft

Bill legalises commercial surrogacy as well.

Therefore, the bare reading of the above draft bill raises many issues which will
not only legalise surrogacy per se, but even commercial surrogacy for monetary
compensation or mutually agreed financial terms. This will make India a baby
farming operation and many children will be subjected to neglect and abuse as
such
children will not have any emotional bondage with the commissioning parents.
Therefore, we are of the view that from the draft bill, commercial surrogacy
should
be outrightly deleted, be it for the foreign commissioning parents or domestic
couples.
Altruistic or gestational surrogacy be allowed only once in the lifetime of a
surrogate mother in the age group of 21 to 35 years and should be need based.
No
surrogacy should be allowed to lesbian or gays, because surrogacy is an
unnatural
way of having a child, as is the relationship between the lesbian or gays, which is
incomplete because family togetherness in traditional terms means having a
father /
mother / brother / sister. This leads to the interest and right of the child from
being well protected.
It is, further proposed that there should be one central body to assess the needs
of
the commissioning couple, as well as, the surrogate mother. Before initiating the
final process every thing should be in writing between the parties and proper
counselling of the surrogate mother and her family regarding the consequences
of
surrogacy, whether altruistic, gestational, partial or full.