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April - May 2009
Surrogacy, Bane or Boon?
THE FACULTY OF LAWS, Panjab University, Chandigarh, in association with Malhotra and Malhotra Associates, International Attorneys organised a panel discussion titled, “Surrogacy: Bane or Boon” on March 4, 2009. The panel discussion revolved around the Assisted Reproductive Technology (Regulation) Bill and Rules 2008.It was chaired by Law Commission of India Chairman Justice A.R. Lakshmanan, who in his keynote address, explained the need for a law to regulate the flourishing reproductive tourism industry in India.
Panjab University Vice Chancellor Professor R.C. Sobti explained the biological aspect of surrogate motherhood and the role of biotechnology in this regard. Chief Justice, Punjab and Haryana High Court Hon'ble Mr. Justice T.S. Thakur emphasized upon regulation of surrogate motherhood through instrumentality of law and outlined the problem Indian Society may face if no proper law was enacted in this regard.
The judicial perspective of surrogacy was highlighted by Hon'ble Mr. Justice K. Kannan, Judge, Punjab and Haryana High Court, Chandigarh. He delved into the role the judiciary could play in protecting the interest of a child born out of surrogacy and biological parents.
The panel also included Dr. Gabriele Annis, Head of the Consular and Visa Section of the Embassy of Italy who said there is a sizeable population of India which was settled in Italy and the problems they may face in respect of the children born out of the surrogacy as it has not been legalised in Italy. Professor (Dr.) Virendra Kumar explained the sociological view point of surrogacy and its effect. Professor Vanita Suri from the PGIMER Hospital explained the medical view point of surrogacy and highlighted the problems of women who lent their wombs for surrogacy. Professor P.S. Jaswal introduced the speakers.
Advocate Anil Malhotra, an expert in Private International Law, coordinated the question answer session between the panelists and the audience.
‘INDIA EMERGING AS REPRODUCTIVE TOURISM HUB’
WITH ITS “reproductive tourism” Industry reportedly estimated at Rs.25,000 crore, India has become the hub of the fertility market, panelists at the discussion on “Surrogacy: Bane or Boon,” said.
The discussion assumes significance in the wake of India set to become the only country in the world to legalise commercial surrogacy with the proposed new law, Assisted Reproductive Technology (Regulation) Bill and Rules, 2008.
Advocate Anil Malhotra, an expert in private international law, said “Surrogacy in UK, USA and Australia costs more than US 50,000 dollars, whereas advertisements on websites in India mention varying costs in the range of US 10,000 dollars and also offer egg donors and surrogate mothers. It is a free trade market, flourishing and thriving in the business of babies. However, exploitation, extortion and ethical abuses in surrogacy trafficking are rampant here, and surrogate mothers are often misused with impunity. Therefore, a law is needed to protect their rights”.
According to Malhotra, “Clinically called ‘Assisted Reproductive Technology,” (ART), it has been in vogue in India since 1978 and today an estimated 200,000 clinics across the country offer artificial insemination, In Vitro Fertilisation and surrogacy”. He even referred to the recent Supreme Court decision on September 29 in the baby Manji Yamada case.
It observed commercial surrogacy is reaching industry proportions and is also sometimes referred to by emotionally charged and potentially offensive terms like Wombs for rent, outsourced pregnancies or baby farms.
As per Malhotra, “It is presumably considered legitimate because no Indian law prohibits surrogacy. But then, as a retort, no law permits surrogacy either. However, the changing face of law is now going to usher in a new rent-a-womb law as India is set to become the only country in the world to legalise commercial surrogacy”.
Department of Law, Panjab University, Chandigarh Chairman Professor P.S. Jaswal said, “Mythologically speaking, surrogate motherhood has been well known in the country since the Vedic times. Today though, the primordial urge to have one’s own biological child has fuelled the reproductive tourism industry in the country, which is estimated at Rs. 25,000 crores. In the changed scenario, this is a phenomenal exercise to legalise commercial surrogacy.”
The draft bill prepared by a 15-member committee, including experts from ICMR, medical specialists and experts from the Ministry of Health and Family Welfare was recently posted online for feedback. The 135-page document is said to be an Act to provide for a national framework for the regulation and supervision of assisted reproductive technology.
Law Commission of India chairman Justice AR Lakshmanan said, “The new Assisted Reproductive Technology (Regulation) Bill and Rules, 2008 legalises commercial surrogacy, allowing the surrogate mother to receive monetary compensation for carrying the child in addition to health care and treatment expenses during pregnancy.”
The draft bill says the surrogate mother will have to relinquish all parental rights over the child once the amount is transferred to her and the birth certificate will also be in the name of the genetic parents.The bill also maintains that the surrogate mother should be above 21 years and should not be above 45 years and no surrogate mother can undergo an embryo transfer more than thrice.
The bill comes as a boon for single parents, who under its provisions, can also opt to have children using the services of a surrogate mother. s per draft regulations, the bill says all foreigners seeking infertility treatment in India will first have to register with their embassy.Taking lessons from recent incidents, the bill stipulates that the foreign couple would have to hand over their notarised statement will to the treating doctor.Not only this, the foreign couple will also have to state whom the child should be entrusted to in case of an eventuality such as a genetic parent’s death.