Of surrogacy and the law

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August 1, 2013 10:19 IST  

Against concerns of lack of clarity and sufficient protection for surrogate mothers in the draft ART Bill, 2010, the Planning Commission is set to appoint a committee for wider consultations

The Centre will set up an expert committee for wider consultations on the draft Assisted Reproductive Technologies (ART) Bill, 2010. The committee will deliberate upon very “grave and critical” concerns raised by stakeholders and explore possible ways to address these issues. 

The decision was taken after the Planning Commission recommended substantive changes in the legislation and advised the Indian Council for Medical Research (ICMR) against pushing the draft Bill till the process of consultations was satisfactorily concluded. 

The Planning Commission will coordinate the process of forming and facilitating this committee towards developing an efficient regulatory framework and legislation. This comes after a meeting convened by the plan panel with stakeholders in the Capital earlier this week who made a pitched demand for setting up an expert committee to look into some of the provisions of the Bill, according to Sama, a non-governmental organisation working on women’s health. 

Sama has been engaged in Assisted Reproductive Technologies and commercial surrogacy, through research, advocacy, and creation of resources (including a recent film on surrogacy) over the past eight years. 

The outfit was invited by the Planning Commission as part of their Civil Society Window initiative to present its views on commercial surrogacy in India.  The meet, chaired by Dr. Syeda Hameed, Member, Planning Commission, was attended by representatives from the Planning Commission, Union Ministry of Health and Family Welfare, ICMR, Union Ministry of Law and Justice, the National Commission for Protection of Child Rights (NCPCR), and Office of the Registrar General of India, amongst others. 

The discussion flagged concerns with regard to the unregulated industry, unethical practices, especially lack of protection of the surrogate women’s health and rights, sex selection, lack of employment opportunities, and other health and rights issues of children born through surrogacy arrangements, and issues related to their citizenship. 

Given the presence of Dr R.S. Sharma (member secretary Drafting Committee of the Draft ART Bills 2008 and 2010), the deliberations focused on the content and provisions of the Bill. The “short-sightedness” of some of the provisions, the absence of sufficient protection for surrogate women and in general the lack of transparency, consultative processes involving domain experts, including organisations in the drafting of the Bill,  and lack of clarity on nodal authority, were issues raised by the members. 

The ART Bill has been hanging fire since 2008 when the first draft was prepared. It was revised in 2010 but is yet to get a final approval from the Union Law Ministry following which it will go to the Cabinet for clearance.

Commercial surrogacy is a multi-million dollar industry in India but there is no legislation to regulate surrogacy which is resulting in exploitation of poor women who offer their wombs for a price without realising the adverse health impacts.   

Health activists feel that the ART draft Bill is designed to regularise and promote the interest of the providers (mainly the private sector) of these technologies rather than regulate and monitor the current practices. The Bill is also inadequate in protecting and safeguarding the rights and health of the women who undergo these ART procedures, surrogates, egg donors and of the children born through these techniques. 

In the context of surrogacy, the draft Bill at present constructs surrogacy as an isolated problem and proceeds to resolve conflicts engendered by the practice, a perspective that is in favour of the industry. The surrogacy industry, in effect, seeks to open up the market by removing any legal impediments in its smooth functioning. It is also decidedly in favour of commissioning parents, Sama points out. 

“Lack of transparency from ICMR on this ART Bill is quite known to us for many years. We were appalled to learn that ICMR has again revised the draft Bill 2010 which we came to know only at the Planning Commission (the 2012 ART Bill is not on the ICMR website). The Ministry and ICMR have never made an effort to have any consultation on this Bill with women’s rights, child rights, health rights and legal rights organisations,” activists said while hoping that the Planning Commission meeting would lead to some positive outcome towards greater civil society participation.


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