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Get access to two hours session on Emerging Trend towards Surrogacy laws in India of 13 Sessions of Webinar on “New and Emerging Aspects of Law”. Two esteemed speakers will be connected with us to deliver the lecture on this topic.
What will be covered?
There will be two distinct speakers to conduct the webinar; Navjot Suri, Assistant Professor of Law & Adv. Khushboo Natholia
Speaker 1: Navjot Suri, Assistant Professor Law
- Meaning of the Concept of Surrogacy
- Definitions of Surrogacy -American Law Reports , The New South Wales Law Reform Commission and The Assisted Reproductive Technologies (Regulation) Bill, 2010 .
- Methods of Surrogacy
- Past Experiences
- Emerging Facets
- Commercial surrogacy
- HISTORICAL PERSPECTIVE
- Biblical Times: The first mention of surrogacy can be found in “The Book of Genesis” in the story of Sarah and Abraham. Sarah and Abraham were married but could not conceive a child of their own, so Sarah turned to her servant Hagar to be the mother of Abraham’s child.
- 1884: The first successful artificial insemination of a woman was completed, although in an ethically questionable way. This paved the way for future artificial inseminations used in the surrogacy process.
- 1975: The first ethically completed IVF embryo transfer was successful.
- 1976: The first legal surrogacy agreement in the history of surrogacy was brokered by lawyer Noel Keane. 1978: The first baby conceived through IVF transfer was born.
- 1980: The first compensated surrogacy agreement was arranged between a traditional surrogate and the intended parents. Elizabeth Kane (a pseudonym) received $10,000 to carry a baby for another couple.
- 1984–1986: Perhaps the most famous case in surrogacy history is the “Baby M.” case, involving a traditional surrogacy. Bill and Betsy Stern hired Mary Beth Whitehead to be their surrogate in 1984, agreeing to pay her $10,000
- 1985: While the “Baby M.” case was going on, the first successful gestational surrogacy was completed, paving the way for future gestational surrogacies to be the norm.
- 2004–2008: Almost 5,000 children were born via surrogacy in the United States.
- HISTORICAL PERSPECTIVE – INDA
- Surrogacy was known and practiced in ancient times.
- There are other well-quoted examples that refer to not only IVF but also to the idea that a male can produce a child without the help of female.
- According to Bhagwad Gita, even Lord Krishna is understood to have been born without a sexual union.
- Recent Judicial pronouncements
- Baby Manji Yamada v. Union of India (2008)
- Jan Balaz v. Anand Municipality and ors. (2009)
- Surrogacy risk and conditions in India
- According to The Guardian, a surrogate mother died because she didn’t get the proper medical attention.
- Conservative estimates show that more than 25,000 children are now being born through surrogates in India every year in an industry worth $2 billion.
- The Indian Council for Medical Research has given guidelines in the year 2002, approved by the government in 2005, regulating Assisted Reproductive Technology procedures.
- Proposed legislations
- Assisted Reproductive Technology Bill, 2013
- Surrogacy (Regulation) Bill, 2016 and 2019
- SURROGACY IN THE INDIAN CONTEXT
- SURROGACY AND ARTICLE 21 OF THE CONSTITUTION
- FEMINIST PERSPECTIVE ON SURROGACY
Speaker 2: Adv. Khushboo Natholia
Introduced by the Minister of Health and Family Welfare, Dr. Harsh Vardhan in Lok Sabha on July 15, 2019.
Preamble – To constitute National Surrogacy Board, State Surrogacy Boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy and for matters connected therewith or incidental thereto.
- Important Terms
- Sec 2 (a) “abandoned child” means a child born out of surrogacy procedure who has been deserted by his intending parents or guardians and declared as abandoned by the appropriate authority after due enquiry
- (b) “altruistic surrogacy” means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative;
- (f) “commercial surrogacy” means commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother;
- (g) “couple” means the legally married Indian man and woman above the age of 21 years and 18 years respectively;
- p) “infertility” means the inability to conceive after five years of unprotected coitus or other proven medical condition preventing a couple from conception;
- (r) “intending couple” means a couple who have been medically certified to be an infertile couple and who intend to become parents through surrogacy;
- (zc) “surrogacy” means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth;
- (zf) “surrogate mother” means a woman bearing a child (who is genetically related to the intending couple) through surrogacy from the implantation of embryo in her womb and fulfils the conditions as provided in sub-clause (b) of clause (iii) of section 4;
- Purposes for which surrogacy is permitted:
- for intending couples who suffer from proven infertility;
- Altruistic and not for commercial purposes;
- not for producing children for sale, prostitution or other forms of exploitation; and
- for any condition or disease specified through regulations.
- Eligibility criteria for intending couple: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
- A certificate of essentiality will be issued upon fulfilment of the following conditions:
- a certificate of proven infertility of one or both members of the intending couple from a District Medical Board;
- an order of parentage and custody of the surrogate child passed by a Magistrate’s court; and
- insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
- The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions:
- the couple being Indian citizens and married for at least five years;
- between 23 to 50 years old (wife) and 26 to 55 years old (husband);
- they do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or
- suffers from life threatening disorder or fatal illness; and
- other conditions that may be specified by regulations.
- Eligibility criteria for surrogate mother:
- To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
- (i) a close relative of the intending couple;
- (ii) a married woman having a child of her own;
- (iii) 25 to 35 years old;
- (iv) a surrogate only once in her lifetime; and
- (v) possess a certificate of medical and psychological fitness for surrogacy. Further, the surrogate mother cannot provide her own gametes for surrogacy.
- Offences and penalties:
- CHAPTER VII, Section 35-42 of the Act list the offences and punishment.
- The offences under the Bill include:
- (i) undertaking or advertising commercial surrogacy;
- (ii) exploiting the surrogate mother;
- (iii) abandoning, exploiting or disowning a surrogate child; and
- (iv) selling or importing human embryo or gametes for surrogacy.
- The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees. The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.
- The Bill ignores suggestions of ICMR and a Parliamentary panel to first regulate assisted reproductive technology (ART) clinics and retains restrictive
- definitions and unwarranted regulatory provisions raising serious doubts about its efficacy to achieve its objective.
- It bans commercial surrogacy and sale or import of human embryo for the purpose of surrogacy.
- It allows only “ethical altruistic surrogacy” to Indian married couples, in the age group of 23-50 for women and 26-55 for men, who should have been legally married for at least five years.
- The Bill says the surrogate mother should be a “close relative”, “an ever-married woman having a child of her own” and in the age group of 25-35.
- She would be allowed to surrogate “only once”.
- Reading Material
- Interactive Session
- Mode – Google Meet
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