ART Bill may close doors to surrogacy for foreigners

With the Centre’s proposed Assisted Reproductive Technology (ART) Bill likely to be tabled in the winter session of Parliament, foreigners and those not included in the “couple” category may be unable to avail the services of an Indian surrogate.

Simply put, the Bill narrows the services to Indian couples or a foreigner married to an Indian citizen. This will put the brakes on the surrogacy business, which currently stands at Rs. 900 crore and is a growing industry.

Also, by defining a couple as a married man and woman, the proposed Bill shuts the door on homosexuals and people in live-in relationships.

“Surrogacy is a method of assisted reproduction. The Assisted Reproductive Technology (ART) industry has evolved into a multi-billion rupee industry. India is internationally known as a booming centre of a fertility market. The industry is growing fast because of cutting-edge technology, trained medical staff, availability of rented wombs, and the fact that it offers very competitive pricing,” said Dr. Rita Bakshi, a member of the Indian Society of Third Party Assisted Reproduction (INSTAR).

India is among a handful of countries — which includes Georgia, Russia, Thailand, Ukraine and a few States in the US — where women can be paid to carry a couple’s genetic child through a process of in-vitro fertilisation (IVF) and embryo transfer.

Dr. Bakshi added that if the Bill comes into force, fertility tourism in India will slip to the back seat.

“At present, close to 20 per cent of the intended parents seeking surrogates in India are foreigners. The Indian surrogacy market is pegged to be around Rs. 900 crore. According to a 2012 study by the Confederation of Indian Industry (CII), around 10,000 foreign couples visit India to commission surrogacy,” said Dr. Bakshi.

According to fertility experts, “transparency, ethical guidelines, regulated environment and enhanced clinical practice are the need of the hour”. They say that the business, driven by sound medical facilities, is based on simple economics.

Mr. Vivek Kohli, who runs Baby Joy IVF Centre, says the proposed Bill will lead to discrimination among Indian and foreigners and directly affect medical tourism in India.

“These days India has become the hub of medical tourism. People travel from across the world for medical treatment. If organ transplant is fine, then why this double standard for surrogacy?” Mr. Kohli asks.

However, some people have come out in support of the proposed Bill. Dr. (Brig) R.K Sharma, HOD at IVF Primus Super Speciality Hospital said: “We are fortunate that we are in this noble work where we can provide the joy of parenthood to people not only from our own country, but from people all around the world. But, indirectly it creates a negative impact about our country that our women are so poor that they rent there womb for survival. If this is banned, it would be beneficial for our image.”

Many legal experts also feel that it is “poverty, illiteracy and the lack of power that women have over their own bodies”, which is the driving force behind the surrogacy market.

Women rights groups, too, believe that the draft Bill is a step in the right direction as it will end the present confusion and help regulate the functioning of IVF centres, besides ensuring quality checks and accountability of ART clinics.

“It will also be a step forward in protecting the interest and health of the surrogate mother,” says the All India Democratic Women’s Association (AIDWA).

Dr. Richa Sharma of INSTAR, meanwhile, said that what the industry needed was a strong regulation “to streamline the ART process and stop unethical practices being carried out”.

“Often we have heard episodes of harvesting of multiple oocytes for egg extraction, implantation of multiple embryos, and the practice of embryo donation or sharing. All of these require women to undergo hormonal interventions. It is exploitation that needs to be stopped, not services,” she said.

Foreigners may no longer hire wombs in India

Foreign national couples may no longer be able to choose India as their destination to bring them the joy of parenthood. The government, in its newly-drafted Assisted Reproductive Technology (ART) (Regulation) Bill, 2014, has proposed to bar foreigners from commissioning surrogacy in India.

Instead, the government has proposed allowing surrogacy only to couples who live together legally as per the Indian Consititution — Overseas Citizens of India (OCI), People of Indian origin (PIO), Non-Resident Indian’s (NRIs) and a foreigner married to an Indian citizen.

Contrary to the recommendation of the Women and Child Development (WCD) ministry, which had earlier proposed the health ministry to widen the definition of “couples by allowing surrogacy to everyone who wants to avail ARTs and surrogacy, irrespective of marriage”, the new draft remains quiet on live-in relationships, unmarried couples and single parents.

According to the draft, being put up for suggestions and comments by the Department of Health Research under the Union health ministry, OCIs, PIOs and foreigner married to an Indian citizen, commissioning surrogacy in India shall be married and the marriage should have sustained at least for two years.

They will have to submit a certificate conveying that the woman is unable to conceive their own child and the certificate shall be attested by the appropriate government authority of that country.

Those seeking surrogacy will also have to appoint a local guardian who shall be legally responsible for taking care of the surrogate during and after the pregnancy etc.

As per the draft if OCI, PIO and a foreigner married to an Indian citizen seeks sperm or egg donation, or surrogacy in India, and a child or children are born as a consequence, the child or children, even though born in India, shall not be an Indian citizen but shall be entitled to Overseas Citizenship of India under Section 7A of the Citizenship Act, 1955.

The draft also proposed that only Indian citizens shall have a right to act as a surrogate, and no assisted reproductive technology bank or assisted reproductive technology clinic shall receive or send an Indian woman for surrogacy abroad. The draft also states that no ART procedure shall be performed on a man and a woman below the age of 23 years and above the age of fifty years in case of women and 55 years in case of men.

According to the new draft, surrogate mother shall be an ever married Indian woman with minimum 23 years of age and shall have at least one live child of her own with minimum age of three years. “No woman shall act as a surrogate for more than one successful live birth in her life and with not less than two years interval between two deliveries. The surrogate mother shall be subjected to maximum three cycles of medications while she is acting as surrogate mother,”says the draft copy.

In the event that the man intending to act as sperm donor is married, the consent of his spouse shall be required before he may act as sperm donor, it adds.

The draft makes it mandatory for all those commissioning couple including OCI,PIO, NRIs and foreigner married to an Indian citizen who have availed of the services of a surrogate to accept the custody of the child or children irrespective of any abnormality that the child or children may have. “Commissioning couple shall submit a certificate indicating that the child/children born in India through surrogacy is/are genetically linked to them and they will not involve the child/children in any kind of pornography or paedophilia,” it further says.

Australian babies and embryos in legal limbo in Nepal as commercial surrogacy clinics shut down

          

ELEANOR HALL: Dozens of Australian parents are accusing the Nepalese government of holding their surrogate babies "hostage", following a court decision that outlawed commercial surrogacy services.

More Australians seeking surrogacy services have been travelling to Nepal since the Indian and Thai authorities cracked down on commercial surrogacy last year.

But a recent decision by the Nepalese Supreme Court has left parents of babies already born or awaiting birth unable to obtain visas to bring their babies back to Australia.

Nick Grimm reports.

NICK GRIMM: For those directly involved, they're sometimes called "family formation journeys". They're the long odysseys on which infertile and same-sex couples will embark, with the goal of transforming their relationship from a partnership to a family.

But in the wake of controversies like Thailand's baby gammy scandal, commercial surrogacy services have themselves been on the move, seeking sympathetic jurisdictions willing to enable prospective parents to take home a baby - which is at least, in part, biologically their own.

After doors closed on Australian couples in India and Thailand, Nepal had been the latest port of call for commercial surrogacy.

After stumping up an estimated $40,000 for the chance to have their child carried by a surrogate mother, parents have been caught in a legal limbo, as a result of a Nepalese supreme court decision that has invalidated the process.

The ruling has left parents unable to obtain the necessary visas allowing them to bring their newborn babies home.

ROBERT REITH: Our best guess is about a dozen, but we're concerned that there could be a number more who, you know, have made no representation to us or even to the local DFAT authorities.

NICK GRIMM: Robert Reith from Surrogacy Australia says other prospective parents are also facing obstacles leaving Nepal with their frozen embryos - regardless of whether they can find a third destination where a surrogate birth can be arranged.

ROBERT REITH: At the moment, the government has put a ban on all export visas, export as in allowing people to take their child, even though its completely genetically theirs, to get a travel visa out of the country.

Now we understand the supreme court will be meeting today or tomorrow to try and get a resolution to this, but even still, it may only help a few couples. There are many couples over there who have perhaps not a surrogate at the moment, but they have eggs, embryos, in clinics in Nepal. So the issue for us is not only getting the babies back home that are already alive and just waiting in limbo, but also for all those other people who have got embryos, frozen embryos, you know, hoping to use a surrogate in one of those countries.

NICK GRIMM: The growing number of Australian couples caught in limbo adds to those already mired in red tape as a result of India's decision to ban commercial surrogacy arrangements there.

ROBERT REITH: DFAT and I have got an account together, we put together some numbers and it looks like we've got about 22 couples who are affected at the moment in India.

NICK GRIMM: Sam Everingham is the father of two girls born via a surrogacy arrangement, and founder of Surrogacy Australia.

He's since become the director of Families Through Surrogacy. The organisation has been providing advice and support for many of the Australian parents whose babies are now in a legal limbo in Nepal.

SAM EVERINGHAM: It's tough. I mean all these couples are highly stressed because they're obviously in a foreign country with newborn babies, and there for many more weeks than they expected to be there for.

Often, you know, there having to have time off work for many more weeks than they've scheduled for. The future is a bit uncertain as to when they'll be able to bring those children back to Australia. So look, it's a nerve-wracking time for many of those couples now, while Nepal goes through a process of deciding what it is and isn't lawful.

NICK GRIMM: In the wake of the court decision in Nepal, some commercial surrogacy clinics are now believed to be re-establishing their operations in Cambodia - one of the jurisdiction's where laws governing the practice are at best vague, or non-existent.

Australia's Department of Foreign Affairs and Trade says it can't comment on individual cases for privacy reasons, but in a statement provided to The World Today, DFAT acknowledges it's aware of a number of cases involving Australians in Nepal with children already born.

STATEMENT FROM DFAT (voiceover): The Australian Government has made, and continues to make, representations to the government of Nepal to address the issue of those families who already have children born in Nepal, and those with children currently in gestation. We all want a solution that is humane and considers the best interests of the children, birth mothers and families.

NICK GRIMM: DFAT has been advising Australians against engaging in surrogacy in Nepal since February this year, and the status of commercial surrogacy arrangements undertaken prior to the ruling by the Nepalese supreme court in August remains unclear.

Sam Everingham again.

SAM EVERINGHAM: The Nepalese government isn't very well resourced in this area at the moment. They are doing what they can to try and address what they say at the moment, but it's obviously a government which hasn't got the manpower a developed country has, and they're really stretched to try and deal with this in a thorough and mature way, and in a way which protects the interests of surrogates, the children and the parents.

ELEANOR HALL: That's Sam Everingham from Families Through Surrogacy ending that report from Nick Grimm.