Women and Child Development Ministry comments on Assisted Reproductive Technology Bill

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This is certainly good news. The Union Women and Child Development Ministry, Government of India is in favour of surrogacy for Single and Gay Intended Parents apart from normal heterosexual couple. The Union Women and Child Development Ministry in its comments to the Health Ministry on the Assisted Reproductive Technology (Regulation) Bill, 2013 has stated that the definition of the word “couple” is narrow and must include everyone irrespective of the marital status.

Number of Surrogacies for Surrogate Mothers

The Union Women and Child Development Ministry has proposed that surrogate mothers should be allowed have four pregnancies, including their own children. The Assisted Reproductive Technology (Regulation) Bill, 2013 had proposed that surrogate mothers should not have more than three pregnancies. The Ministry had also proposed that there should be a two-year gap between every childbirth. The Ministry in its comments stated that women above the age of 21 years can be surrogate mothers, with other criterions such as low Body Mass Index and other medical risks such as cardio-vascular diseases, thyroid problems being taken into consideration.

Compensation to the Surrogate Mother

The Union Women and Child Development Ministry is clearly in favour of monetary compensation for the surrogate mothers. The Union Women and Child Development Ministry had opined that a minimum compensation should be paid to the surrogate mother after the Embryo Transfer is complete, irrespective or success or failure of the procedure. Apart from this, the Union Women and Child Development Ministry also provided that the surrogate mother should be covered for contingencies such as medical risks.

Until now, only two ministries have commented on the Assisted Reproductive Technology Bill, which has been proposed by the Ministry of Health – Directorate General of Health Services and the Union Women and Child Development Ministry. The Ministry of External Affairs and the Ministry of Home Affairs have not commented on the Assisted Reproductive Technology. The Ministry of Home Affairs was the agency of the Government that had introduced the restrictions for entry taking up surrogacy in India by introducing the new surrogacy visa.

Contradictory view from DGHS

The Directorate General of Health Services had commented on the Assisted Reproductive Technology Bill last month with a controversial view that surrogacy in India should be available only for people of Indian Origin and not for Foreigners. The view of the DGHS created much of a buzz in the online and offline space with debates questioning it stand. In its letter, the DGHS had proposed three recommendations on the Assisted Reproductive Technology Bill:

  • Surrogacy in India should be allowed only for Indian citizens and people of Indian Origin
  • Secondly, Surrogacy in India should be taken up only by married heterosexual couple and not single or gay parents
  • Thirdly, a woman can be a surrogate only once in life time

The Union Women and Child Development Ministry has now provided a completely contradictory view from that proposed by the Directorate General of Health Services. We would be required to wait and see whether the Union Women and Child Development Ministry response to the Assisted Reproductive Technology Bill would be accepted and incorporated in the final draft of the bill.

Sudan National moves High Court Challenging New Surrogacy Visa Regulation

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A Sudan National, Shihabeldin, has moved the Punjab and Haryana high court challenging the International Surrogacy Visa Regulation of the Ministry of Home Affairs (MHA) which restricts international surrogacy arrangements to married couple (married at least for a period of two years) and bars international surrogacy for single foreign nationals and unmarried couples. The regulation also requires the letter from the country of origin stating that international surrogacy is recognised by their country and that the child born through the surrogacy arrangement would be allowed into their country.

Admitting the application, a division bench headed by Chief Justice Sanjay Kishan Kaul of the Punjab and Haryana high court issued notice to the Ministry of Home Affairs instructing the ministry to file a response to the application. According to the application, the Sudan National is being aggrieved by the fact that he could not take up surrogacy in India as a single parent.

The brief facts as reported are that the Petitioner is a resident of Sudan and desired to become a single parent through surrogacy in India and had contacted a medical facility in India. It was then it came to his knowledge that the MHA had issued a regulation restricting single parents from taking up surrogacy in India. Aggrieved by the same, he had file the present application.

It is reportedly argued that ICMR guidelines has been placed reliance upon to support the contention that single parent may take up surrogacy in India and the new visa regulation in place is contradicting the same. Further, it was reportedly argued that the foreign nationals couldn’t be discriminated by restricting them from taking up surrogacy in India.

It could be recollected at this juncture that the Supreme Court had in the year 2008 decided the case of Baby Manji vs. Union of India, wherein the grandmother of the child was given clear passage to take the child back to Japan. In 2009, arose another interesting case of Jan Balaz, wherein the Supreme Court of India facilitated the movement of the twin children to Germany, even though Germany vehemently tried stalling the same.