ART Bill draft does not exclude gay couples from surrogacy in India

Leading embryologiest and surrogacy programme director Dr Samit Sekhar explains why the current draft of India's ART Bill does not yet exclude gay couples from surrogacy.
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March 2, 2011 - PRLog -- Following the recent media reports about ineligibility of gay couples or single parents undergoing surrogacy treatments in India, leading embryologist and Surrogacy Programme Director Dr Samit Sekhar responds to the hitherto unfounded claims.

“Every day seems to bring new reports about how the proposed Assisted Reproductive Technology (Regulation) Bill 2010 is going to effectively ban Gay Couples/ Single Parents from surrogacy in India. Comments from an unnamed official are yet to be backed up by any real evidence of a version of the Bill containing anything like what is being touted by media in India and Abroad.

The last public draft of the ART Bill included in its definitions the possibilities for couples, regardless of sexuality who's relationship or marital status is recognised in their home country to be eligible for surrogacy treatment in India, and thus far we have seen nothing to indicate anything to the contrary. And until such time as the Bill does become law, the precedent for eligibility is quite clearly laid down in the Supreme Court Judgment in the case of Baby Manji Yamada Vs. Union of India in 2008, to include a single parent, or a gay male couples.

The fact of the matter is that the Bill has a long way to go before it does become law and in the meantime speculation based on the comments of few officials serves only to worry parents who are currently undergoing surrogacy treatments in India. This leads to needless distress as the situation remains unchanged. There should be a clear distinction between individual attitudes towards a particular subject either being homosexuality or single parenthood and the actual legal precedents that prevail.

The Union Law Ministry will no doubt be considering the proposed legislation as it stands and are likely to engage in a period of consultation, hopefully with practitioners and all the stakeholders before making any changes and passing a finalised version of the Bill in both houses of Parliament for their majority approval. I am confident that this will not be done hastily and that we will have our chance to petition on behalf of all parties involved including all couples and single parents for their continued eligibility for surrogacy as well as to input in to the broader regulations that the Bill outlines.

We personally support the aims of the Bill in general; to create ethical standards for assisted reproductive treatment and to ensure that rights of all parties are protected – commissioning parents, the surrogate and ultimately the baby. It seems that the underlying theme of the Bill is to remove uncertainties over citizenship, establish rights and responsibilities and to avoid protracted legal cases by setting out clear rules, and not to preclude certain people from this form of fertility treatment.”

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Notes to editors and journalists

Dr Samit Sekhar – Dr Sekhar is an embryologist and surrogacy program director at the Kiran Infertility Centre in Hyderabad. He has assisted many international intended parents in realising their ambition of becoming parents through surrogacy and featured in several documentaries and video reports on the subject.

Baby Manji Yamada Vs. Union of India - Writ 369 of 2008. 29th September 2008 – in his judgment Dr. ARIJIT PASAYAT, J of the Supreme Court of India outlines the criteria for eligibility for surrogacy thus

10.Intended parents may arrange a surrogate pregnancy because a woman who intends to parent is infertile in such a way that she cannot carry a pregnancy to term. Examples include a woman who has had a hysterectomy, has a uterine malformation, has had recurrent pregnancy loss or has a healthy condition that makes it dangerous for her to be pregnant. A female intending parent may also be fertile and healthy, but unwilling to undergo pregnancy.

11.Alternatively, the intended parent may be a single male or a male homosexual couple.

This case remains the leading precedent on surrogacy in India; including clarification that commercial surrogacy is indeed legal in India:

9."Commercial surrogacy" is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This medical procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms "wombs for rent", "outsourced pregnancies" or "baby farms".

The Assisted Reproductive Technology (Regulation) Bill 2010 – originally drafted in 2008 and from reports dating back to 2005, the final Bill has yet to appear before the Lok Sabha and the Rajya Sabha. Both houses of parliament will need to pass the Bill by majority vote before it becomes law. The last public draft of the Bill emphasizes many of the points made in the Yamada Vs Union of India case and contains the following definitions:

h. “couple”, means two persons living together and having a sexual relationship that is legal in

v. “married couple”, means two persons whose marriage is legal in the country / countries of which they are citizens;

dd. “unmarried couple”, means two persons, both of marriageable age, living together with mutual consent but without getting married, in a relationship that is legal in the country / countries of which they are citizens;

In Chapter VII , Section 32 it also sets out eligibility for surrogacy as:

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

# # # is a site dedicated to helping intended parents make informed choices about surrogacy in India. Combining expert opinion with personal experiences and discussion of all the different aspects of starting a family using a surrogate mother, the site is a useful resource for anyone interested in surrogacy programmes in India.
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