Draft ART (Regulation) Bill, 2014

In 2005, the ICMR (Indian Council of Medical Research) had framed guidelines for ART (Assisted Reproductive Technologies) Clinics. However, there is no legal mechanism to enforce them or monitor compliance by clinics. The ART Bill was first drafted in 2010 by the previous UPA regime. The draft prepared in 2012 has banned only those foreigners from hiring Indian surrogates whose own countries of origin didn’t recognise commercial surrogacy as Indian practices. Now, the present government has prepared a new draft the Assisted Reproductive Technologies (Regulation) Bill, 2014 and this bill is set to be tabled in the Parliament during the winter session. The new draft bill is presently in consulting stage for public comments.

Salient features

• Commercial surrogacy is not allowed in India. It bars foreign nationals from hiring surrogates in India. However, the draft Bill proposed to allow surrogacy to overseas citizens of India (OCIs), people of Indian Origin (PIOs), non resident Indians (NRIs) and even to foreigners married to an Indian citizen. A foreigner married to an Indian citizen shall produce ‘Medical Visa for surrogacy’.
• Surrogacy is allowed only for Indian couples. By defining a couple as a married man and woman, the proposed Bill shuts the door on homosexuals and people in live-in relationships. The draft Bill, however, states such couples will have to comply with certain conditions for commissioning surrogacy. For instance, such couples will have to be married and the marriage should have sustained for a considerable period of time. They also have to produce a certificate saying ‘the woman is unable to conceive her own child.’
• The Bill also proposed to make it mandatory for all couples commissioning surrogacy 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.
• Married women and Single women – divorced or widowed are allowed to act as surrogates. Surrogate mother shall have minimum twenty three years of age and maximum thirty five 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 child born to a foreigner married to an Indian citizen by sperm or egg donation, or surrogacy in India, then the child will not be an Indian citizen, despite being born in India, and will be entitled to Overseas Citizenship of India under Section 7A of the Citizenship Act, 1955.
• The draft bill also included various provisions to regulate the reproductive technology clinics in India. No assisted reproductive technology clinic shall offer to provide a couple with a child of a pre-determined sex. No assisted reproductive technology clinic and assisted reproductive technology bank shall provide information on or about surrogate or potential surrogate to any person.

Recently, the union home ministry has instructed Indian missions and foreigners regional registration offices (FRRO) not to grant visa to couples intending to visit India for surrogacy.