Report No. 228
II. The Draft Assisted Reproductive Technology (Regulation) Bill and Rules 2008
2.1 The legal issues related with surrogacy, as we have seen, are very complex and need to be addressed by a comprehensive legislation. After 7 The Times of India, Mumbai, 18.11.2008 16a long wait for so many years, the Indian Council of Medical Research (ICMR) has come out with a draft Assisted Reproductive Technology (Regulation) Bill and Rules 2008. The draft Bill contains 50 clauses under nine chapters.
2.2 The Bill acknowledges surrogacy agreements and their legal enforceability. This will ensure that surrogacy agreements are treated on par with other contracts and the principles of the Indian Contract Act 1872 and other laws will be applicable to these kinds of agreements. The Bill provides that single persons may also go for surrogacy arrangements.
2.3 The Bill provides that a foreigner or foreign couple not resident in India or a non-resident Indian individual or couple, seeking surrogacy in India, shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after pregnancy till the child is delivered to the foreigner or foreign couple or the local guardian.
It is further provided that the commissioning parents or parent shall be legally bound to accept the custody of the child irrespective of any abnormality that the child may have, and the refusal to do so shall constitute an offence. A surrogate mother shall relinquish all parental rights over the child. The birth certificate in respect of a baby born through surrogacy shall bear the name(s) of genetic parents/parent of the baby.
2.4 The Bill also provides that a child born to a married couple or a single person through the use of ART shall be presumed to be the 17legitimate child of the couple or the single person, as the case may be. If the commissioning couple separates or gets divorced after going for surrogacy but before the child is born, then also the child shall be considered to be the legitimate child of the couple.
2.5 The Bill further provides that a couple or an individual shall not have the service of more than one surrogate at any given time. A couple shall also not have simultaneous transfer of embryos in the woman and in a surrogate.
2.6 Chapter I of the Bill contains definitions. Chapter II provides for constitution of a National Advisory Board for ART and State Boards for ART for laying down policies, regulations and guidelines, and Registration Authorities for registering ART clinics. Chapter III lays down procedure for registration of ART clinics. Chapter IV prescribes duties of ART clinics. One of the duties is to make couples or individuals, as the case may be, aware of the rights of a child born through the use of ART.
The duties also include the obligation not to offer to provide a couple with a child of a pre-determined sex. Chapter V provides for sourcing, storage, handling and record-keeping for gametes, embryos and surrogates. Chapter VI regulates research on embryos. Chapter VII discusses rights and duties of patients, donors, surrogates and children. Chapter VIII deals with offences and penalties therefor. Chapter IX is titled 'Miscellaneous' and includes power to search and seize records etc. and the power to make rules and regulations. This legislation is intended to be in addition to, and not in derogation of, other 18relevant laws in force.