NEW REGULATIONS ON SURROGACY

• While the new Assisted Reproductive Technology (ART) Regulation Bill and Rules, 2010, are still in the womb, the non-statutory Indian Council of Medical Research (ICMR) Guidelines, 2005, are being followed.
• As per the latest and new Indian visa regulations, effective November 15, 2012, all foreigners visiting India for commissioning surrogacy will be required to apply for medical visas and cannot avail of simple tourist visas for surrogacy purposes. 

 NEW REGULATIONS:

• Foreigners visiting India for commissioning surrogacy must apply for medical visa

• The man and woman should be duly married and the marriage should have sustained for at least two years
• A letter from the embassy should be enclosed with the visa application stating that the country recognizes surrogacy and the child born thereof will be treated as a biological child of the couple
• The couple will furnish an undertaking that they would take care of the child
• The treatment would be done only at registered ART clinics recognized by the ICMR
• The couple should produce a notarized agreement between the applicant couple and the prospective surrogate mother
•  For return journey, the couple will need exit permission from FRRO/FRO
• The couple can be permitted to visit India on a reconnaissance trip on tourist visa, but no samples can be given to any clinic during such visit 

  RECOMMENDATIONS OF LAW COMMISSION:

• Surrogacy arrangement will continue to be governed by contract among parties, which will contain all the terms requiring consent of surrogate mother, medical procedures, reimbursement, willingness to hand over the baby, etc. This arrangement should not be for commercial purposes.
• Surrogacy arrangement should provide for financial support for surrogate baby in the event of death of the commissioning couple or individual before delivery, or divorce between the intended parents and subsequent unwillingness to take the baby.
• Life insurance covers for surrogate mother.
• One of the intended parents should be a donor to foster the bond of love and check chances of child abuse.
• Legislation should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
• The birth certificate of the child should contain the name(s) of the commissioning parent(s) only.
• Right to privacy of the donor as well as surrogate mother should be protected.
• Sex-selective surrogacy should be prohibited.
• Cases of abortions should be governed by the Medical Termination of Pregnancy Act.
• The ART Bill, 2010, has legal lacunae and lacks creation of a specialist legal authority for determination and adjudication of legal rights of parties, in addition to falling in conflict with existing family laws. These pitfalls should not become a graveyard for a law yet to be born. Surrogacy needs to be regulated by a proper statutory law. Till then, the visa regulations will provide succor and relief.