The Draft ART Bill, 2008

The MOHFW has published a draft ART (Assisted Reproductive Technology) bill on its website (here and here). The bill seeks to regulate the practice of surrogacy. On the whole, it is well written and avoids some of the pitfalls of the ICMR guidelines on the same question.

The bill empowers a National Advisory Board to act as the regulatory body laying down policies and regulations. It also seeks to set up State Advisory Boards that are, in addition to advising state governments, charged with monitoring the implementation of the provisions of the Act particularly with respect to the functioning of the ART clinics, semen banks and research organizations. Several newspapers have already published some of the details of this bill (a summary of some of its key provisions may be found in this article in Tehelka). Below are some of the other salient features.

ART clinics are to become the central hub of all surrogacy-related activity. They are tasked with obtaining all relevant information, informing all the parties involved of their rights and obligations, maintaining accurate records of all the transactions every step of the way. Requirements of confidentiality and other procedural obligations of all the institutions are also specified. The bill lays down conditions (such as age, usage, etc.) that potential gamete donors and surrogate mothers must meet.

Three ‘kinds’ of parents are involved in surrogacy: intending parents who seek the child, genetic parents who provide the genetic material for procreation and the surrogate mother who carries the fertilized womb until delivery. An individual can and often does wear more than one hat. For example, a man wanting to have his own child also provides the sperm to conceive the baby thus being both the intending as well as the genetic father. Likewise, a woman can not only provide the ovum but also carry the conceptus thus acting as both the genetic and surrogate mother. Several other combinations are also possible which is where controversy often arises. The bill draws clear lines to avoid these problems.

While not using the word ‘intending’ anywhere, its implications are nevertheless clear. Firstly, it categorically states that donors, at the time of donation, and surrogate mothers, after delivery, shall relinquish all parental rights (s.33(3), 34(4)). Secondly, it bars the surrogate mother from also being an oocyte donor – in other words, traditional surrogacy (s.33(13)). In its most common form, this method involves the surrogate woman undergoing artificial insemination with donor sperm and was the primary method of impregnation before the onset of more recent techniques such as in vitro fertilization (IVF). The important difference here is that unlike in gestational surrogacy where the surrogate mother only carries the child, here she is also the genetic mother. This was evidently a potential source of legal complications and would have required the government to come up with a more detailed framework of the parties’ rights in such cases. A ban no doubt precludes the problem but it comes at the cost of the law being more restrictive than it is perhaps necessary to be. Finally, the wording of the provision (s.33(13)) has a potential loophole . It only mentions ‘oocyte’ and not ‘ooplasm’ (the content of the oocyte barring the outer membrane and nucleus), a distinction that has become important ever since ooplasm transfers started to be carried out. Thus, an individual can now end up having two genetic mothers; if the surrogate mother also ends up donating the ooplasm that is introduced into the recipient’s oocyte, that would in effect amount, at least in part, to traditional surrogacy through the backdoor and all the issues associated with it.

Foreign couples/NRIs would be required to appoint a local guardian to be legally entrusted with the surrogate mother’s welfare until the baby is handed over to them after delivery. They are also required to establish to the clinic through documentation their ability to take the child back with them (s.34(19)). This is probably in response to the recent Manji incident where a surrogate baby conceived by a Japanese couple was stuck in India following emigration issues of the baby and the father (thanks to Mr.Venkatesan for bringing it to attention). In the controversy that followed, several infirmities in the arrangement came to light including the absence of a legal contract between the parties, a fact that many saw as a worrying reminder of the potential for exploitation of native surrogates.

The bill allows individuals and unmarried couples to avail of this route to have children. There is also a provision (s.20(10)) that conception by surrogacy shall not be considered by any clinic if it would normally be possible to carry a baby to term. The disparate impact is obvious: a woman desiring a child would thus have to show that she is not capable of bearing one; a single man of course is free to conceive as and when he pleases. There is a broader ethical question here: is it wrong to have ‘designer babies’, a phenomenon this provision is ostensibly meant to prevent? If two people consensually seek to conceive a child with the woman, for whatever reason, not wanting to go through the trouble of carrying it unto delivery, what is the state’s interest in preventing it given that it has no problem permitting surrogacy regardless of the family arrangement of the concerned individuals?

There is also a restriction on ART clinics from providing any information ‘about surrogate mothers or potential surrogate mothers to any person’ (s.34(14)). Parties seeking a surrogate mother thus have to either advertise (permitted under s.34(7)) or approach middlemen. It may not be unwise for ART clinics to stay clear of matchmaking but for those looking for a surrogate, it would be of benefit to have a reliable source of information regarding potential candidates. If he/she/they are investing so heavily in it, it is only fair to them to be able to select someone from a list by reviewing their attributes and ‘past performance’. Also, the strict confidentiality requirements of s.34(12) and s.34(14) would render it difficult for a private entity outside the purview of this law to fulfill this role given their inability to access information even for verification purposes. Introducing a caveat on the lines of s.33(2) (that applies to donors) allowing for the release of personal information at the discretion of the surrogate might allow for such a prospect in the future.

Clarification: In the comments section, I made a point that gay couples would have to adopt a child post-birth as there is no provision in the act for a gay couple to have a child. In doing so, I gave the example of heterosexual couples who adopt children when one of the genetic parents happens to be an external donor. I said ‘My understanding is that this bill does not seek to change that arrangement…” I wish to clarify that while this arrangement will continue to hold for gay couples, the situation will change for heterosexual couples (both married and unmarried) should this bill pass to become law. Under s.32(2), informed consent is mandatory for both partners (in case of a married or unmarried couple); s. s.35(1) and 35(2) would automatically render the child the legitimate child of both parties.

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  • very interesting, indeed, from another point of view – gay parenthood. we have read a lot about the health ministry’s stand on decriminalisation of gay sex. now, this Bill appears to leave enough judicial elbow room for extending the right to access ART to same-sex couples, although without spelling it out.

    section 2(e) of the Bill says – “couple”, means the persons living together and having a sexual relationship that is legal in the country / countries of which they are citizens or they are living in;

    Note the gender neutral terminology and the only requirement is legality of the sexual relationship – not even legal recognition in terms of marriage or civil partnership, just that such relationship is not illegal. So, if section 377 is read down, as demanded by the Health Ministry, this definition will include same-sex couples within the definition of ‘couples’. This effect appears to be too precise to have been a mere coincidence.

    But only a few paragraphs later, comes this:

    section 2(w) “unmarried couple”, means a man and a woman, both of marriageable age, living together with mutual consent but without getting married;

    Clear use of gendered language. So, a same-sex couple ‘married’ abroad can legally use ART (since there is no definition of ‘married couple’), but an ‘unmarried’ couple can only be heterosexual. The status of civil unions is probably left to the judiciary to decide in the future.

    And now, the section that specifies the right to have ART –
    section 32(1) Subject to the provisions of this Act and the rules and regulations made
    thereunder, ART shall be available to all persons including single persons, married couples and unmarried couples.

    Now I am really confused. Where does this leave us? This definition is an inclusive one, so it is not restricted to ‘single persons’, ‘married couples’ and ‘unmarried couples’. There is perhaps a window left open for unmarried gay couples who, according to the two legal definitions, are a ‘couple’ under the Act (after 377 is read down) but not an ‘unmarried couple’. The non-exhaustive language should allow the courts to fill in the gap.

    Is this an accurate reading of the Bill in light of a potential litigatory issue?

  • Tarunabh,

    As per this law, a gay couple cannot have a child; only a gay person can do so. Marital status of a gay individual therefore does not matter except for issues of adoption.

    Under s.34(10), the baby ‘shall bear the name of the genetic parents/parent’ meaning the child belongs to him/them who contribute(s) to the genetic make-up of the baby (excluding anonymous donors). Only one of the two partners of a gay couple can make such a contribution (the other gamete coming from an anonymous donor of the opposite sex who is obliged to relinquish all parental rights) for this purpose and the child will therefore belong only to him/her.

    Gay couples generally use one of two methods to obtain a biological connection with a child. One is to get an ART clinic to mix the sperm samples with separate batches of eggs from the same donor – that way, if implanted successfully, you might end up with two half-twins. Note that even in such a case, neither baby has a genetic connection to both partners. Under the proposed law, there are several obstacles to doing this. The other route is for one of the partners to have a child with a close relative of the other (of the opposite sex) either through traditional surrogacy or through IVF – both are barred under different provisions of the act.

  • Tarunabh’s comment is an interesting one, and I do not understand Dilip’s response. The statute, which Dilip quotes, says the baby’s name can be derived from one or more of the genetic parent(s). Unless he has cited the statute wrongly, I don’t see why this would impair the right of a same-sex couple to invoke artificial reproductive technologies absent an express prohibition under the statute.

  • Vikram and Tarunabh,

    When a heterosexual couple avail of an egg/sperm donor, only one of them has a biological connection with the child. For the other partner to gain full parental rights, the couple would have to adopt the child after birth. My understanding is that this bill does not seek to change that arrangement; the same would therefore apply to gay parents as well (whose situation would be very similar in the normal course unless they both seek to have a biological connection with the child through a more complex arrangement that I pointed out above). I believe that gay couples are still not permitted to adopt children under Indian law but those visiting India from the West could perhaps return with a single (i.e. biological) mother/father as the sole guardian and later carry out a second-parent adoption in their home countries. Viewed from this perspective, the limiting factor for gay couples is not so much this law as their right to adopt. The limitation here is more for heterosexual couples who have to be either married or ‘living together’ to qualify under s.32(1) (again, this definition is only operative provided both partners happen to be genetic parents of the child).

    Tarunabh’s point is certainly interesting and it does raise the question: is marital status going to be a restrictive factor preventing unmarried (but not married) gay couples from having a surrogate child? As mentioned above, in that case, because only one of the partners is biologically connected to the child, he/she would qualify under ‘single persons’, not ‘unmarried couple’ – my answer would therefore be no. Indeed, there was a report in HT of an Israeli gay couple having a child in India through this route.

  • The Bill has been framed by a committee which had 5 such doctors with clear and obvious Conflict Of Interest, they have been running IVF centres and making millions and now want to make even money through all means and now making it legal.
    This is just like you invite 5 smugglers to frame a bill for enforcement of excise and tax.
    Its all for commercial interest of handful of people. This surrogacy is not even allowed in many states of US and countries like Australia, Germany, France and many more.
    Now, just like Product Patent, GATT agreement we have another law in India which has hidden agenda and its dire consequences are not being brought to the attention of public at large.