In the absence of a legislation to regulate surrogacy practices, the grey areas are getting wider. The Assisted Reproductive Technology (Regulation) Bill and Rules, 2008, drafted by the union ministry of health and family welfare is yet to be tabled in parliament. Until then it is the guidelines framed by the Indian Council for Medical Research (ICMR), practised neither in letter nor spirit, that govern the multi-million dollar industry.
Advocate Amit Karkhanis of Kaylegal, who, in the last two years, has drafted over 180 surrogacy agreements tells DNA that self-regulation is the only norm to be followed until there is a statutory legal provision for surrogacy.
How can rent-a-womb agreements be regulated until a legislation is enforced?
An industry of this scale needs governing, but since the ICMR guidelines are not binding on IVF clinics, there needs to be self-regulation against unethical practices. Infertile couples or individuals are emotional and desperate. It is for the clinics to be rational and examine the legality of surrogacy in their country before encouraging them. It’s essential for these couples to seek legal advice prior to signing up for a surrogacy agreement.
Is there a safeguard in the existing guidelines for foreign nationals who come to India for surrogacy even though their country bans the practice?
After an amendment in 2008, the guidelines state that foreign nationals should obtain a clearance certificate from the embassy of their country. However, this is ineffective and practically difficult as embassies hardly issue such certificates that amount to giving medical advice. The guidelines, however, state that embryo adoption — where the child has no genes of the parents and is conceived through donors — is not permissible in case of foreign nationals in India.
Would embryo adoptions in case of foreign nationals – like in the cases that came to light recently -be termed “illegal” then?
ICMR guidelines define embryo adoption, but do not say whether or not it is legal. The proposed Bill, however, says embryos cannot just be adopted by foreign prospective parents but they cannot be sent abroad even for medical research. However, until the Bill comes into force, these practices can, at best, be called unethical or immoral but not illegal.
In cases of embryo adoptions, how do prospective parents select the sperm and egg donor?
There are no guidelines for selecting donors. It is agents associated with IVF clinics that find donors. Some clinics even show pictures of proposed donors to parents after which their approval is sought. Although such practices are legitimate in USA, in India, it could be considered a practice for creating made-to-order or designer babies.
Who can donate sperm/egg or be a surrogate mother? How much monetary compensation do they generally receive?
Donors and surrogates are usually suggested by the clinics after examining their medical and physical fitness. However, anybody can volunteer for the same if they are of sound health. The prospective parents spend anything between $25,000-30,000, all-inclusive. Each donor is paid between Rs30,000-Rs40,000 and a surrogate earns anything between Rs3-4 lakh. However, the same woman cannot be allowed to act as a surrogate more than
five times.
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