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The purest form of joy for a woman is to become a mother. But some women are not bestowed with the capacity to experience motherhood. Under such circumstances, the longing for motherhood leads infertile couples to solutions like Artificial Reproductive Technology (ART), In-Vitro Fertilisation (IVF), and Intra-Uterine Injections (IUI). With the innovations in the field of medicine and technology, ART has proved to be a boon for infertile couples. Surrogacy is one such solution under the ART technique.
Surrogacy is termed as a condition where another woman who is called a surrogate mother carries and gives birth to a baby for the couple who wants to have a child. This arrangement can be gratuitous and voluntary, as well as, commercial or altruistic according to the laws of the country. Undoubtedly the biggest advantage under surrogacy is successful pregnancy and a healthy baby born but there are several legal aspects to be considered.
India is the leader in the world of ART with a 30 billion industry and more than 3000 clinics across the country is bound to follow the guidelines provided by Indian Council Of Medical Research for accreditation, supervision, and regulation of ART clinics which exist till date since no legal frame work has been created so far.
Since 2002 commercial surrogacy was legal in India. But the guidelines provided by the Indian Council of Medical Research neither passed proper rules for keeping a check on ART clinics nor protected the surrogate mother from exploitation under a commercial arrangement.
Then, ART Bill, 2010 was presented with the intention to regulate the already existing surrogate industry. The bill had many ambiguities as it neither defined the parties that can approach for surrogacy nor said about any rights for the surrogate mother.
After much criticism and debate about the ART Bill, 2010 the Assisted Reproductive Technology (Regulation) Bill-2016 came before the Cabinet for consideration. The Bill proposed to ensure that services provided by the ART clinics are ethical and that the medical, social and legal rights of all the concerned are protected. The Bill also prohibited commercial surrogacy and single parents, homosexual and live in couples from becoming commissioning parents. Although the bill was drafted with the intention to curb the exploitation of surrogate child and mother for unethical purposes in the opinion of many ART experts it fails to address various issues including transparency and fairness of practice.
One of the issues is of lack of screening guidelines of couples based on their economic, social, age, health, criminal and family background before they're
legalized to commission surrogacy. In the absence of such guidelines, the surrogate child’s interest is at risk as the commissioning parents might lack the credibility or even be injurious to the surrogate child’s safety.
The Bill also does not talk about the plight of a surrogate child with physical or mental infirmity found due to casualties arising out of switching or swapping of donated frozen gametes in clinics or labs, sperm banks. The bill is vague about the rejection or abandonment of such a surrogate child. Further, the Bill is still ambiguous on the aspects of rights of the surrogate mother and the child.
This leaves us with the question that when will there ever be appropriate laws regarding the aspect of surrogacy in our country?
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