By Pradip Kashyap & Pooja B.
Marriage is the age-old institution pregnant with the objective of legalization of love making and procreation of children. A married woman with a child is given more regard not only in her family but also in society. Infertility, impotency or incapacity of any partner or of a couple poses a serious hurdle in this regard. Here, Assisted Reproductive Technology (ART) and surrogacy arrangement comes as a surprising treatment and appealing supplement for such persons.
It is estimated that 15 percent of couples around the world are infertile. This implies that infertility is one of the most highly prevalent medical problems. The magnitude of the infertility problem also has enormous social implications. Besides the fact that every couple has the right to have a child, in India infertility widely carries with it a social stigma. In the Indian social context specially, children are also a kind of old age insurance.
With the enormous advances in medicine and medical technologies, today 85 percent of the cases of infertility can be taken care of through medicines, surgery and/or the new medical technologies such as in vitro fertilization (IVF) or intracytoplasmic sperm injection (ICSI).
It may be recalled that the birth of the first child, Louise Brown, in 1978, through the technique of in vitro fertilization by Robert G. Edwards and Patrick Steptoe, was a path-breaking step in control of infertility; it is, in retrospect, considered as one of the most important medical advances of the last century.
Most of the new technologies aimed at taking care of infertility involve handling of the gamete – spermatozoa or the oocyte – outside the body; they also often involve the donation of spermatozoa or oocyte, or the use of a surrogate mother who would be carrying a child with whom she has no biological relationship.
These technologies not only require expertise but also open up many avenues for unethical practices which can affect adversely the recipient of the treatment, medically, socially and legally. The last nearly 20 years have seen an exponential growth of infertility clinics that use techniques requiring handling of spermatozoa or the oocyte outside the body, or the use of a surrogate mother.
As of today, anyone can open infertility or assisted reproductive technology (ART) clinic; no permission is required to do so. There has been, consequently, a mushrooming of such clinics around the country. In view of the above, in public interest, it has become important to regulate the functioning of such clinics to ensure that the services provided are ethical and that the medical, social and legal rights of all those concerned are protected.
Efficiency of Proposed Law A.R.T. Bill, 2013
Women in India cannot act as surrogates for more than three successful births, including of their own children, and it would be mandatory for surrogate mothers to have a minimum two-year interval between two deliveries to ensure they remain healthy.
These landmark provisions are part of the proposed draft Assisted Reproductive Technologies (ART) Bill which the government plans to bring to the Cabinet before introducing in Parliament for passage. Any contravention of provisions of this bill would attract severe penalties.
The bill, a first in India’s history, seeks to monitor the unregulated sector of ART clinics, which offer infertility solutions to couples at huge costs, besides preventing commercial surrogacy and safeguarding the rights of surrogate mothers and children born out of surrogacy arrangements.
An estimated 15 per cent couples worldwide are infertile, making ART services critical. The draft ART Bill seeks to fill these gaps and addresses ethical, legal, moral, monetary and safety issues related to gamete donation, surrogacy and nationality of the child born out of ART.
Top sources in the Health Ministry said the bill had been sent for comments to ministries and replies were expected by August 5, after which the final draft bill will be prepared.
The bill is significant as currently there is no supervisory body in the country under which ART clinics offering services, including surrogacy to infertile couples, can be placed and there is no system to monitor these services and ensure that surrogate mothers are not exploited.
According to draft bill provisions, no woman less than 21 years of age and over 35 years can act as a surrogate mother. The bill also, for the first time, states conditions for foreign couples seeking to hire surrogates in India.
Several issues such as ethical, moral, monetary and safety have been raised in this area by various sectors of the society as there is no law to regulate the issues of surrogacy in India, a Health Ministry note states.
The Bill comes at a time when surrogacy has become a preferred mode of having children, with film stars like Aamir Khan and Shahrukh Khan opting for the method.
Under the new draft law, surrogacy is defined as “an arrangement in which a woman agrees to a pregnancy achieved through ART in which neither of the gametes (the egg or the sperm) belong to her or her husband, with the intention of carrying the pregnancy to term and hand over the child to the persons for whom she is acting as a surrogate.”
As per the bill, all expenses of the surrogate mother would have to be borne by the infertile couple, including her insurance. A surrogate, before being hired, has to be medically tested for sexually transmitted diseases and AIDS to ensure she does not pass on the infection to the child.
To streamline financial commitments between the infertile couple and the surrogate mother, the draft bill says a surrogate mother has the right to terminate her pregnancy at any time but if she does so without medical reasons, she will have to reimburse the cost to the infertile couple which has hired her. If, however, the pregnancy has been terminated for medical reasons, no reimbursement would be needed.
Also by law, a surrogate mother would have to relinquish all parental rights over the child born out of the arrangement. The draft bill adds that a surrogate cannot undergo embryo transfer for more than three times for the same couple.
The bill states conditions for foreign couples seeking to hire surrogates in India. As per the draft, they would have to first give a certificate from their foreign ministry stating that the child born out of a surrogacy arrangement would be permitted entry in their country of origin and would be considered the biological child of the couple.
A foreign couple seeking a surrogate service in India will have to appoint a local guardian to care for the surrogate mother till the child is delivered to the hiring couple.
Foreign couple will use at least one gamete of their own in the creation of the embryo. “In case the foreign couple fails to take delivery of the child, the local guardian would be obliged to take the said delivery and he would be free to hand over the child in adoption,” the draft law states.
Once the bill is passed by Parliament, all states and UTs would have to constitute state boards and registration authority to regulate ART clinics and banks in their areas. Every state board will have the power of a civil court to adjudicate matters under the law and even impose penalties.
A National Advisory Board for ART will be established under the Health Ministry to recommend modification of rules to the ART techniques and Indian Council of Medical Research will maintain a national registry of ART clinics and banks in India which will act as a central database through which all information related to services offered by clinics will be maintained.
Conclusion
Marriage is the age-old institution pregnant with the objective of legalization of love making and procreation of children. A married woman with a child is given more regard not only in her family but also in society. Infertility, impotency or incapacity of any partner or couple poses a serious hurdle in this regard. Here, Assisted Reproductive Technology (ART) and surrogacy arrangement comes as a surprising treatment and appealing supplement for such persons.
Through ART the first test tube baby ‘Louise Joy Brown’ was born in Britain on July 25, 1978 and now she is also the mother of a child. The second was India’s Durga alias Kanupriya Agarwal in Kolkata.
These two incidents have set aside many controversies relating to ART. ART comes under the domain of medical science. It is not a treatment of infertility but helps the infertile couple to get a child.
It is of two kinds, one in which the fertilization of egg happens in-vivo and the other in which all the process is done in-vitro. This IVF and ART is the very basis of surrogacy arrangement.
Surrogacy is a state or condition of being a surrogate. It is a practice in which a woman bears a child for a couple unable to produce children in usual way. In India, till the date there is no specific law to govern the issues related to surrogacy.
In 2005, ICMR and NAMS issued certain guidelines to check the use of ART but these are not binding. The Law Commission of India in the year 2009 suo-motu took the issues related to surrogacy for study and in its 228th Report recommended on its various aspects.
Recently in India, a draft has been prepared by fifteen member committee including experts from ICMR, Ministry of Health and by other specialists in the field. If we analyze the bill we find that many provisions of ART Bill need reconsideration.
An orthodox view is that it is highly immoral, unethical and inconsistent with human dignity that a woman uses her uterus for financial profit and treats it as an incubator for someone else’s child.