These landmark provisions are part of the proposed draft Assisted Reproductive Technologies Bill which the government plans to bring to the Cabinet before introducing in Parliament for passage. Any contravention of provisions of this bill would attract severe penalties.
The bill, a first in India's history, seeks to monitor the unregulated sector of ART clinics, which offer infertility solutions to couples at huge costs, besides preventing commercial surrogacy and safeguarding the rights of surrogate mothers and children born out of surrogacy arrangements.
An estimated 15 per cent couples worldwide are infertile, making ART services critical.
The draft ART Bill seeks to fill these gaps and addresses "ethical, legal issues related to gamete donation, surrogacy and nationality of the child born out of ART."
Top sources in the health ministry said the bill had been sent for comments to ministries and replies were expected by August 5, after which the final draft bill will be prepared. The bill is significant as currently there is no supervisory body in the country under which ART clinics offering services, including surrogacy to infertile couples, can be placed and there is no system to monitor these services and ensure that surrogate mothers are not exploited.
According to draft bill provisions, no woman less than 21 years of age and over 35 years can act as a surrogate mother. The bill also, for the first time, states conditions for foreign couples seeking to hire surrogates in India.
"Several issues such as ethical, moral, monetary and safety, have been raised in this area by various sectors of the society as there is no law to regulate the issues of surrogacy in India," a health ministry note states.
The bill comes at a time when surrogacy has become a preferred mode of having children, with film stars like Aamir Khan and Shah Rukh Khan opting for the method. Under the new draft law, surrogacy is defined as "an arrangement in which a woman agrees to a pregnancy achieved through ART in which neither of the gametes (the egg or the sperm) belong to her or her husband, with the intention of carrying the pregnancy to term and hand over the child to the persons for whom she is acting as a surrogate."
As per the bill, all expenses of the surrogate mother would have to borne by the infertile couple, including her insurance. A surrogate, before being hired, has to be medically tested for sexually transmitted diseases and AIDS to ensure she does not pass on the infection to the child.
To streamline financial commitments between the infertile couple and the surrogate mother, the draft bill says a surrogate mother has the right to terminate her pregnancy at any time but if she does so without medical reasons, she will have to reimburse the cost to the infertile couple, which has hired her. If, however, the pregnancy has been terminated for medical reasons, no reimbursement would be needed.
Also by law, a surrogate mother would have to relinquish all parental rights over the child born out of the arrangement. The draft bill adds that a surrogate cannot undergo embryo transfer for more than three times for the same couple. This provision aims to prevent commercialisation of the service.
The bill states conditions for foreign couples seeking to hire surrogates in India. As per the draft, they would have to first give a certificate from their foreign ministry stating that the child born out of a surrogacy arrangement would be permitted entry in their country of origin and would be considered the biological child of the couple.
"A foreign couple seeking a surrogate service in India will have to appoint a local guardian to care for the surrogate mother till the child is delivered to the hiring couple. A foreign couple will use at least one gamete of their own in the creation of the embryo. In case the foreign couple fails to take delivery of the child, the local guardian would be obliged to take the said delivery and he would be free to hand over the child in adoption," the draft law states.
Once the bill is passed by Parliament, all states and Union Territories would have to constitute state boards and registration authority to regulate ART clinics and banks in their areas. Every state board will have the power of a civil court to adjudicate matters under the law and even impose penalties.
A national advisory board for ART will be established under the health ministry to recommend modification of rules to the ART techniques and Indian Council of Medical Research will maintain a national registry of ART clinics and banks in India which will act as a central database through which all information related to services offered by clinics will be maintained.
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