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ART bill: Nobody bothers

When Bollywood heartthrob Sharukh and Gauri khan’s baby boy arrived the miracle of science was criticized as well as appreciated by many. As the clamor dies down, it's high time to look into the commercialized angle involved around the surrogacy. Assisted Reproductive Technologies (ARTs) through which surrogacies are conducted is estimated to be fastest growing million dollar industry in Indian market and is helping medical tourism sector to show tremendous boost.

Dr Manoj Chellani, IVF Expert, Aayush ICSI test Tube Baby Center says “While the proposed ART bill is much awaited step towards regulation, there is much to be desired from several clauses especially concerning commercial surrogacy. Over the last few years the severe issues of safety, rights, costs and ethical practice has been raised due to this unregulated proliferation”

The 2010 bill is drafted taking extra precautions so that no surrogate can extend claim over the baby. The Bill only permits the gestational surrogacy i.e through In-Vitro Fertilization (IVF) and Embryo Transfer (ET) while the genetic surrogacy i.e through Intra Uterine Insemination (IUI) is prohibited. By outlawing genetic surrogacy though the contract can be preserved, but the chances of a less commercial surrogacy dies out.

The number of permitted successful live birth for a surrogate has been increased from three to five (inclusive of her own children) in the present draft. Since the live birth is not always equivalent to the number of ART cycles, this may be critical for the surrogate’s health as the success rate of procedure is low. Therefore considering the surrogate’s health, it’s essential to specify the number of permitted cycles she can undergo.

It has been clearly mentioned in the draft that a surrogate can underwent only three embryo transfer per couple. But the draft have no mention as for how many couples she can do the same. Once again considering that the procedure has low success rate, all embryo transfer or ART cycles may not result in successful births. Thus, a surrogate may go through n number of cycles and embryo transfers before achieving the set limit of five in result adversely affecting her health. Hence the provisions are not so strong and have enough space for misuse and exploitation.

The 2008 draft says that the payment to the surrogate can be done in three installments while paying 75% in the first go. The revision which was made in 2010 draft stipulates that the payment will be in five installments and 75% will be paid in fifth and final part followed after the delivery of child. This clearly shows that priority is for the intended parents. Without any reproductive output ‘the baby’, the surrogate’s labor, pregnancy, health problems, physical risk and related emotional are considered meaningless. The revision therefore is not balanced and is unfavorable for surrogate.

The bill ensures that would be parents should ‘appropriately’ insured the surrogate mother and the child she delivers. It would have been much better if bill would have elaborated more on the nature and extent of insurance that will be provided to the surrogate in regard to post-delivery follow-up and care . It should also highlight that breaching this, the commissioning parents and the overseeing clinic would be held legally responsible.

In case of surrogacy arrangements if the intended couple is staying out of India then according to the bill it’s mandatory to appoint a local guardian who will be legally responsible to take delivery of the surrogate’s child born if the commissioning parent does not do so. In addition to this, the drafted bill should also specifically demarcate the role of ‘local guardian’ so that the child may not be handed over to the adoption agency or is not abused in any way. Further provision to this would help growth of the child in fair manner if the intended parents betray the contract.

In reference to the recent controversial cases (Dan Goldberg/ Baby Manji etc) of international surrogacy that have ended in fights for legal citizenship status for the child, the 2010 bill has provisions to settle that. The 2010 draft bill orders that any foreign couple interested in having surrogacy in India should present a certificate from their country declaring that they are permitting surrogacy and will recognize the child born out of surrogacy as their legal citizen. This is a welcome move.