India now officially has a law in place for regulating surrogacy services in the country. The central government on Tuesday notified the Surrogacy (Regulation) Act 2021 and the Assisted Reproductive Technology (Regulation) Act 2021. The two Acts aim to regulate in vitro fertilisation (IVF) clinics and prohibit commercial surrogacy in India.
"As per Section 53 of the Surrogacy (Regulation) Ac, 2021, there is a gestation period of 10 months from the date of coming into force of the aforesaid Act to existing surrogate mothers to protect their wellbeing," tweeted the department of health research under the Union Health Ministry, which notified both the acts commencing from January 25.
The Surrogacy (Regulation) Act, 2021 prohibits commercial surrogacy. However, it allows altruistic surrogacy. The Bill was enacted on December 25, 2021 after receiving Presidential assent. The Act aims to regulate surrogacy in India by establishing a National Surrogacy Board at the central level and state surrogacy boards and appropriate authorities in states and union territories.
Similarly, the Assisted Reproductive Technology (Regulation) Act, 2021, (ART Act) aims to regulate and supervise assisted reproductive technology clinics and assisted reproductive technology banks, and prevent misuse.
Dr Archana Dhawan Bajaj, Gynaecologist, Obstetrician & Infertility Expert at Nurture Clinic said, “The Surrogacy Act benefits the entire ecosystem of surrogacy as it regulates surrogacy in India, ensuring welfare of the unborn child and the surrogate mother. At the same time it is very restrictive, which can promote unscrupulous activities as it doesn’t allow commercial surrogacy and surrogate has to be relative of the couple. Finding a relative/ known person to do surrogacy is going to be a tough path for couples. It decreases the horizon of the people who can undergo surrogacy program.”
However, different voices from women and fertility experts have already started emerging on the laws.
"Without infrastructure or any appointment of authority, there is no clarity what to do for current treatment. 1.8 crore couples in India suffer from infertility. This Act affects all of them as treatment is to be done only after registration with authorities but there is no authorities appointed yet," said Dr Shivani Sachdev Gour, Fertility Specialist.
The women who are on hormonal treatment are in limbo as the law will create a problem in egg donation, Gour said. "Will they be liable criminally as the offenses and penalties in this act penalise patients and clinics both. Egg donors are in a precarious state as clinics are unsure whether to do their egg collection or not.”
Section 15, subsection 3 of the ART Act states that such clinics and banks shall cease to conduct any such counselling or procedures on the expiry of six months from the date of commencement of the Act, unless such clinics and banks have applied for registration and are so registered separately or till such application is disposed of, whichever is earlier.
Among other objectives are ensuring safe and ethical practice of assisted reproductive technology services for addressing the issues of reproductive health where the technology is required for becoming a parent or for freezing gametes, embryos, embryonic tissues for further use due to infertility, and other conditions.
According to the Union Health Ministry, India has become a centre of the global fertility industry in the last few years, with reproductive medical tourism becoming a significant activity.
The ART Bill came as a ray of hope for lakhs of infertile couples, but also gave rise to legal, ethical and social tussles. Through the Act, the national board, state boards, national registry and state registration authorities will regulate and supervise such clinics and banks.
"While the Surrogacy Acts aims to regulate surrogacy in India, it is likely to become counter-productive to any efforts for ending the exploitation of vulnerable women. Given the stigma associated with infertility, the pressure of producing children and the lack of agency that women have over their bodies, commercial activities around surrogacy are likely to go underground and deny legal protection to women who choose to be surrogates," said Poonam Muttreja, Executive Director at Population Foundation of India.
"The major benefit of the ART Bill is that it will regulate the Assisted Reproductive Technology services in the country. Couples seeking these services will be more confident of ethical practices in ARTs," she said.
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