Surrogacy Laws India was recently invited to speak on Legal Aspects of surrogacy in the Orientation CME on ART.We used this platform to ask Dr.R.S.Sharma, Deputy Director General, ICMR and crucial member in the Drafting committee of ART Bill since *** till the recently revised *** top secret bill.Below are some of the excerpts from the conference:
When is the ART bill *** expected to come in force?
The winter session in which the ART bill was expected to be tabled has ended on 23 December *** to paucity of time the bill couldn’t get laid.It is likely to pass and come into force soon.
What is the next course of action for the government?
The ICMR is trying its best to push the higher authorities to enact the bill as soon as possible.It is upto the government to act on it as fast as possible.Indian Constitution provides for passing of bills through the ordinance move
When is the likely halt of Medical visa for Australians likely to be lifted?
The temporary ban should be lifted soon.Indian Authorities are in talking terms with Australian Authorities and after understanding the law positions of both countries the government will announce the next step of action soon.
When a Commissioning Parent doesn’t want to make the payment and costs have been already been incurred in treating the surrogate mother?
As per ICMR Guidelines *** the Intended parents have to pay all genuine expenses towards surrogate mother for pregnancy.Also as per the Draft ART bill the surrogate mother is entitled to receive compensation.And since Commissioning Parents sign a contract with Surrogate mother hence as per Sec 9 of the Indian Contract *** the breach of a contract arises the necessity of filing a civil suit.The doctor in order to avoid going the long time period involved in litigation may even add Arbitration clause and restrict the jurisdiction of the whole contract to place of practice of doctor.
What is a medical practitioner expected to do when a parent denies to take the child that they have commissioned?
The guideline *** establishes a legitimate parent child relationship in cases of commissioning parents and surrogate born child.If further goes to state that a parent is obliged to accept the custody of the child even when the child is suffering from any abnormality.The doctor must specifically mention in the surrogacy agreement that the child in all situations will be considered to be of Commissioning Parents.In order to be double sure the nominees can be made to sign a bond to accept the child if parents refuse.FRRO & Ministry of Home Affairs can also come handy to prevent the parent from eloping along with immediate advice from a legal expert.
What should be done in cases where a child is not granted citizenship by home country of Commissioning parents?
This situation ideally arises when DNA is mis-matched or the parents are citizens of a country which has permanently banned surrogacy while the gestation period was on.In circumstances like this the ICMR Guidelines of *** permit under *** that the parent must adopt the child if the genetic link can not be established.Also many jurisdictions in the world recognize the concept of foster child.The order for appointment of Legal Guardian can be secured with the help of legal expert in India and back in the home country, this Guardian order which specifically mentions the word legal & biological parent would be of help in obtaining all legal rights.
