New Visa Regulations for Surrogacy in India

This blog post refers to the letter from the FRRO. As SurrogacyIndia, we would like to put forward our perspective to the concerns raised.

THE ASSISTED REPRODUCTIVE TECHNOLOGIES (REGULATION) BILL – 2010, is the bill which details procedures for accreditation and supervision of infertility clinics and ART banks, dealing with gamete donors and surrogacy, ensuring that the legitimate rights of all concerned are protected, within a recognized framework of ethics and good medical practice.

       

          A)    Kindly refer to the letter, point 2. 'Being married for 2 years'

Our comments: 

  

  i.   Referring to THE ART BILL – 2010; CHAPTER – VII; Section 32; Pg No 25; Clause 1 & 2. It says:

“(1) Subject to the provisions of this Act and the rules and regulations made thereunder, assisted reproductive technology shall be available to all persons including single persons, married couples and unmarried couples.

(2) In case assisted reproductive technology is used by a married or unmarried couple, there must be informed consent from both the parties.”

  ii.   Further kindly refer to CHAPTER – VII; Section 35; Pg 28, 29; Clause 1, 2. 

   It says:

35. Determination of status of the child – 

(1) A child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both spouses, and shall have identical legal rights as a legitimate child born through sexual intercourse. 

(2) A child born to an unmarried couple through the use of assisted reproductive technology, with the consent of both the parties, shall be the legitimate child of both parties.

(3) In the case of a single woman the child will be the legitimate child of the woman, and in the case of a single man the child will be the legitimate child of the man.

 iii.   Further kindly refer to the Petition (C) No. 369 of 2008; In the Supreme Court of India, it  

          says:

 “the intended parent may be a single male”

 iv.   Further kindly refer to TOI; Delhi; Date 3 Oct 2008; Section Times nation; Page 19, it says:

“Commercial Surrogacy legal and an industry in India: SC (Supreme Court)”

 v.   Further kindly refer to Government of National Capital Territory of Delhi; Director of 

        Economics and Statistics and Office of Sub Registrar and Births and Deaths 

  Sub: Regarding Birth Registration in case of Surrogacy; No./2008/70602-04; it says:

“the issue of birth registration in case of surrogacy may be dealt in accordance with guidelines of Indian Council of Medical Research, pending enactment of Central Act on this issue.”

 vi.   Further kindly refer to State Bureau Of Health Intelligence, Vital Statistics, Pune, Maharashtra, Dy Chief Registrar of Births and Deaths; Pune, Maharshtra; Dt 16 Sept, 2011; No. Class 83/ Surrogacy Birth Registration / 843-44/2011; it says (translated): 

“BMC should make all entries and provide the Birth certificate. ICMR section 34, clause 10, clearly mentions which parents details to be mentioned in the parents name section. Accordingly, if a single mother or single father undergoes surrogacy, then the birth certificate should mention their name and the other parent should mention it as “Not Known”. As per 1969 act, all births and deaths registrations should be informed and accordingly certificates should be issued, and it is compulsory.”

vii. Further refer to TOI Mar 21, 2012. It says:

“the Centre has fully accepted the Delhi high court verdict, which decriminalized consensual gay sex between adults in private. The Centre clarified its stand on homosexuality, saying there is no error in decriminalization of gay sex.”

We understand and accept that the Gay marriages are not yet legal in India.

          B)    Refer to your letter, point 3.

Our comments: 

  i.   In last few years, successful Intending Parents from more than 15 countries have undergone Surrogacy Treatment in India and have taken back their children back with them. The process for taking back their children involved issuing of citizenship and passport/travel document by the missions of country of citizenship of the Intending Parent and Exit Visa by FRRO. We would request you to reconsider this provision and would like you to waive this provision for such countries wherein the Children have already been issued passports and citizenship from their respective missions and data of such countries can easily be obtained by FRRO Offices and Clinics. In case of countries not specified in such lists this provisions can be made mandatory.

         C)    Refer to your letter, point 6.

Our comments: 

   i.   Most of the ART clinics and ART Banks in India have applied for registration with ICMR. We would like to bring to your notice that to the best of our knowledge and upon confirmation from ICMR, till 2^nd January 2013 no Clinic in India is yet registered as an ART Clinic or ART Bank and the process for such registrations is still underway.  We would be glad to receive this registration from ICMR but in absence of such, this should not be a limiting factor for ART Clinics, ART Banks or the Intended parents for undergoing surrogacy in India.

Further to above comments, we would like to also highlight that this ART 2010 BILL had drafting committee members as in line with ART Bill 2010; Chapter II; Section 3, Pg 5; Clause 2    

      Sr Advocate SC of India; Public Interest Legal Support and Research
Scientist; Former Founder Director: CCMB
Deptt. Of Family Welfare, Ministry of Health & Family Welfare
Deputy Director General (SG); Division of Reproductive Health and Nutrition; 

        Indian  Council of Medical Research
Known Fertility Physicians

To the best of our knowledge, this draft was kept open for public debate, professional debate, and all inputs from public, online comments have been taken into consideration.

Also refer to the ART Bill 2010; Chapter IX; Section 45; Pg 33; Clause 1: which states:

 “If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to be necessary for removing the difficulty”

With all the references given above, we are confused with two different set of information provided to us. This is also causing lot of stress, anger and distrust for intended parents in Indian Surrogacy and Legal System.