Pub. Info- A brief overview of Indian Surrogacy Law ( ART) Regulations Bill 2013, Legislative Comment , NLSIU LLM Journal of Law , NLJL , (ISSN: 2349-5723) Volume 1 Number 2 of NLSIU LL.M. Journal of Law (NLJL), July 2014.
A Brief Overview of Indian Surrogacy Law: ART (Regulations) Bill, 2013.
There has been a felt legal void on surrogacy in India following its legalization since 2002, as it remains outside the purview of functioning of any law, there is absence of effective statutory law on the same. However several attempts have been made towards enacting a statutory law for its regulation but these attempts have only resulted in drafting of Bills which has not been given any binding effect till date. Presently there is a draft Assisted Reproductive Technology (ART) Bill 2010 and parallel to this, there is a proposed draft ART Bill 2013 seeking to improvise on the former which is being tabled for discussion and deliberation.
One of the main objectives of this paper is to make critical assessment of the provisions under proposed Bill on surrogacy and its potential to put a check or control on the unfair practices under the garb of surrogacy, and secondly to make a brief comparative study of the recent proposed law with the previously existing draft in order to not only identify the differences but also to appreciate its relative merits and demerits over the previous drafts.
The paper involves application of descriptive research and explanatory research in order to gain better understanding of the proposed law, in tandem with the existing legal instruments on surrogacy and to identify the novel provisions in the proposed law seeking to introduce a new legal regime on surrogacy in India with requisite necessary measures towards progressive development of law on the same.
Surrogacy in commercial form has been legalized in India following the landmark judgment of Supreme Court of India in Yamanda Manji case by providing for monetary payment to be made by the intending couple to the surrogate mothers under a surrogacy agreement to this effect which is held legally enforceable in India.
There is absence of law on surrogacy in India despite this India has earned itself the sobriquet of “Surrogacy capital of the world” with an ART Industry worth $ 450 million annually in India considering the same supreme court has directed for enacting law on the same.
There has been a series of legal instruments towards the enactment of a statute on surrogacy law in India, commencing with Indian Council of Medical Research (ICMR) Guidelines on Surrogacy of 2005 which was further developed into Assisted Reproductive Technologies (Regulations) Bill 2008with necessary changes of modifications the draft ART Bill 2010 and at present there is a draft ART Bill 2013. All these drafts have been criticized for insufficient safeguards for the surrogate mother and the surrogate child. Accordingly the Planning Commission of India has proposed for consultation to recommend better regulatory measures in the Bill. It is significant to understand the significance of law on surrogacy as it touches upon one of the most significant human entitlement of access to infertility treatment including surrogacy for attainment of better reproductive health which is an essential component of right to health consequently right to life, right build family, have children. Thus, the law needs to pay serious consideration to the same and not become another hasty piece of legislation therefore an assessment of the law as present draft is required.
- Some of the Salient Provisions of the ART Bill 2013
Primarily, the ART Bill 2013 seeks to revise the earlier ART Bill 2010 with novel provisions and monitoring mechanism. The ART Bill 2013 is at present before the cabinet for review . Meanwhile, the law appears to have changed hands from the Ministry of Health & Family welfare to the Ministry of Law & justice government of India and accordingly the concerns under the law also seems to have undergone a change, the 2013 proposes for better regulations on surrogacy for medically, socially ethically desirable purposes with minimum risk and harm to the parties involved and to extend benefit to the society.
However it is only pertinent to consider the 2013 Bill and see if the Bill is mere re writing of the earlier draft or otherwise , in the light of these , hence comparative and critical study of the Bill 2013 and the previous drafts are undertaken.
- Limited and Narrow Objective Establishing Administrative Bodies
To begin with, the objective of the 2013 Bill remains the same as in the previous Bill of 2010 providing for the establishment of the administrative or regulatory bodies namely National, State Advisory Body, National registry for regulating the conduct of surrogacy arrangements in India. such an objective of the Bill appears very narrow and limited considering the broad range of issues and related concerns falling under the Bill, the ART Bill by providing for infertility treatment through surrogacy brings within itself many incidentally crucial areas like inclusion of third party as a gestational carrier or surrogate mother, involvement of the anonymous gamete donors namely the egg, sperm donors ultimately marking the birth of surrogate child , thereby including possibly five individuals namely the intending father and mother, egg donor sperm donor, surrogate mother who are brought together under the surrogacy arrangement for facilitating the birth to the surrogate child who may have competing claims of parentage over the surrogate child. Thus surrogacy is not mere medical treatment involving medicine, machines ,but an entire arrangement involving human participants in different functional capacity whose rights, duties, legal capacity or status, inter relationship with others are required to be stated. The safeguards for such human participants must be must be defined and given utmost priority in the Bill. on similar lines, It may appear worthwhile to have a comparative look at the other progressive legislations on surrogacy which provide for a broader objective, the UK Surrogacy law namely the HEFA Act, Australia, New South Wales Surrogacy law which expressly provide for recognition of status of children born from the surrogacy arrangements, the safeguards for surrogate mothers among other the things.
The Bill omitting to include a host of significant issues namely the recognition of surrogacy agreement, rights, obligation, safeguards of the human participants or individuals availing of ART namely the Gamete Donors ,Gestational carrier, Surrogate mothers, Intending Parents and status of the child born out of such arrangements appear limited and narrow in its objective and hence criticized. Therefore, the objective of the Bill by seeking to permit surrogacy and providing for setting merely administrative bodies for its regulating may not suffice, considering the significance of the same.
- Definition of Surrogacy Agreement as an Agreement not Contract
Considering the definition clause, the definitions of the key terms namely surrogacy, surrogate mother, Intending couple, and, surrogate child remain the same as in the 2010 draft. There has been a minor change in the definition of surrogacy agreement in the recent ART Bill 2013. For instance, the term surrogacy agreement has been defined as an agreement between persons availing ART treatment and surrogate mothers, whereas the ART Bill 2010 defined surrogacy agreement as a contract between persons availing ART treatment and surrogate mothers, thus the change in the 2013 draft is the use of term agreement rather than contract as used in the predecessor one. The term contract in legal parlance as defined means an agreement enforceable under the law and thus a legally binding agreement. The use of the term agreement over contract appears vague in the 2013 draft and appears mere change of words considering the need for enforceability and legal effect of surrogacy agreement.
- Egg Donation Reduced to Three Attempts from Six Attempts
In ART Bill 2013, the number of times a women may donate eggs in her life time has been reduced to only three attempts from the earlier permissible limit of six attempts under the 2010 draft. This is a beneficial health provision seeking to protect the reproductive health of the egg donor by reducing the egg donation it prevents the egg donor from high dosages and repeated quanities of hormonal drugs being administered for production of eggs otherwise than in natural course and such hormonal drugs may lead to excessive stimulation leading to a hazardous condition like Ovarian Hyper stimulation syndrome ( OHSS ) which leads to death in certain case among other health risks.
- Woman May Serve As Surrogate Mothers Only Upto Three Times with a Minimum Of Two Year Gap
Under the ART Bill 2013 a woman is permitted to be surrogate mother only upto three times including her own children where as the 2010 draft permitted upto 5 times inclusive of her own children. In addition to this, the 2013 draft imposes a minimum of two year interval between the two deliveries, which was absent in the previous draft. The Bill seeks to better safeguard the reproductive health of surrogate mother by introducing necessary restriction and time gap. as it is a well researched and reported fact that there are certain health risks associated with surrogate pregnancy involving in vitro fertilization technique which may pose serious health risk and hazards namely Ovarian Hyperstimulation syndrome (OHSS ), miscarriages, multiple births, C section Delivery, Ectopic pregnancy, Ovarian cancer. These health risks in surrogate pregnancy are incidental side effects which may not be ruled out. Thus by preventing repeated pregnancy it reduces the scope for serious impairment of health of surrogate mothers.
Though these provisions suggest changes over the 2010 draft but these changes only appear as mere increase or decrease in the number but not substantive change. The maximum number of IVF cycle a women as a surrogate mother may undergo and the maximum number of eggs that may be retrieved are not specified under the draft bill 2013. Considering the innumerable health risks associated with IVF to the extent of death, Ovarian Hyper Stimulation Syndrome (OHSS), and health disabilities and uncertain success rate of IVF; it is imperative that these standards are stipulated in order to safeguard the reproductive health of women.
- Heterosexuals Only To Avail Surrogacy
The ART Bill 2013 permits all individuals including single persons and married couples to avail surrogacy in India. Further, the bill defines couple including as relationship between male and female only. Simultaneous reading of these provisions arrives at the unjustified conclusion that the bill categorically takes away the right to avail surrogacy from the homosexuals, the lesbians and gays. Such denial of access to treatment from the homosexuals would constitute discrimination on the ground of sexual orientation. It may be stated that for such homosexuals, surrogacy as ART treatment may be the only means to have children biologically related to them or to have children at all and build family.
- Prohibition on Sex selective Tests & Greater Punishment and liability
The ART Bill 2013 imposes prohibition on ART clinic on conducting sex determinative test and offering to providing a child with predetermined sex. Correspondingly, the ART Bill 2013 imposes punishment against the conduct of the sex selective determination test by the ART Clinic, ART Bank, agents and increases the punishment upto five years of jail term with fine maximum of ten lakhs. Whereas in the previous draft, the fine amount wasnot specified. Besides the 2013 draft imposes liability on ART Bank, Agents in addition to ART Clinic which was not present in the 2010 draft.
- Forum for filing complaint at Metropolitan Magistrate or Judicial Magistrate of First Class
The ART Bill 2013 provides for the Court of Metropolitan Magistrate or Judicial Magistrate of first class to be the appropriate forum for filing complaint, whereas the ART Bill 2010 had no such provision on forum.
- Creation establishment of National Registry of ART Clinics and Banks in India
One of the new additions in the 2013 draft Bill is the inclusion of the National Registry of ART Clinics and Banks in India which performs the function of safe record keeping for a period of 10 years. Whereas in the 2010 Bill there was no mention of this Registry andthe function of record keeping was entrusted with the ART Bank, Department of Heath Research.
- Import Export of Frozen Human Gametes Embryos Permissible
The ART Bill 2013 permits import and export of frozen human gametes embryos for therapeutic purpose subject to necessary permission from the Registry, however in the previous draft of 2010 there was no such provision for import or export of gametes, embryos even for therapeutic purpose rather there had been absolute prohibition on the same.
- Written Consent Not Informed Written Consent
The ART Bill 2013 as well ART Bill 2010, both provide for obtaining consent from parties availing surrogacy, but the terminology used in both the drafts is different. The recent 2013 draft provides for obtaining mere “written consent” from parties seeking to avail surrogacy whereas the predecessor draft of 2010 provides for obtaining “informed consent.’ It may be stead here that the concept of “informed consent” is not only preferred over “written consent’’ but is largely accepted and supported under the national international biomedical conventions, namely Universal Declaration on Bioethics and Human Rights, and the Ethical Guidelines for Bio Medical Research on Human Participants prescribed by the ICMR. By using the term ‘written consent,’ the ART Bill 2013 differs from the Bio medical ethics.
As the concept of informed consent essentially implies within itself availability or supplying of information at the first place and then the and then understanding the same information to take decision there upon the consent formation where as written consent only refers to the mode or medium of expressing consent which may be recorded as oral or written, besides written consent does not imply any availability of information and understanding.
In case of surrogacy arrangements , informed consent is pertinent considering the specialized nature of surrogacy involving assisted reproductive medical technology with its implications on health, consequent side effects and surrogacy agreement the legal obligations arising out of such agreement. Thus any consent formation among the parties on surrogacy would require them to have such information and understand the same and subsequently form the consent hence necessitating informed consent. In a crucial treatment like surrogacy such informed consent may be strongly recommended.
- Insurance for Surrogate Mother and Surrogate Child
The ART Bill 2013 seeks to provide insurance for the surrogate mother but makes it subject to availability, thus it may not be necessarily complied with in all cases for the want of un-availability of insurance schemes to cover the surrogate mothers. It may be pertinent to mention here one such case where there was absence of insurance scheme covering surrogate pregnancy for the surrogate mother who died following the delivery of the surrogate baby in the state of Gujarat, India but was not entitled to any insurance scheme either under the law or under the surrogacy agreement therefore no claim for insurance could be made by her behalf by her surviving husband or family. 
In addition to the insurance cover for the surrogate mother, one of the progressive provision of the 2013 draft is insurance cover for the surrogate child or children till the age of twenty one years or till the time their custody is taken, such a provision is absent in the ART Bill 2010.
- Offences by medical practitioner more stringent
The offences by the medical practitioners under the recent ART Bill 2013 are made more stringent or rigorous by increasing the punishment at the first instance is provided as a jail term for five years and fine upto ten lakh rupees which in the 2010 draft was three years and the fine amount was not specified. Further, on second instance the punishment is jail term for seven years and fine up to fifteen lakhs, which in the 2010 draft was five years and the fine amount is not specified. It appears that the recent ART Bill 2013, while most of the provisions in the draft are reiterated verbatim, it appears that the changes are cosmetic and the main objective of introducing this draft is not clear. The ART Bill 2013 has largely the same limitations and legally vexatious issues which its predecessor the draft 2010, 2008 retained.
III. Inadequacies & Omissions in the ART Bill 2013
Some of the crucial and incidental issues concerning surrogacy are either inadequately addressed or un-addressed in both the drafts of the year 2010 and 2013, and therefore merit consideration. These may be illustratively listed here.
- No Insurance for the Egg Donor
There is no insurance for the egg donor either under the 2010 draft or under the 2013 draft but only for surrogate mother subject to availability. The insurance for both the surrogate mother and the egg donor must be made strictly mandatory to be complied with in all cases. Much to the disgrace of the 2013 draft and its predecessor drafts, there has been a reported death of a 26 year old egg donor in Delhi in January 2013 due to the possible reasons of over dosages of Hormonal drugs, injections to produce more eggs than the normal resulting in Ovarian Hyper Stimulation Syndrome (OHSS) and cardiac arrest, thereby leading to her death in few hours following the egg retrieval in the hospital itself. This unfortunate case itself evinces the need for insurance and safeguards for the egg donor including health counseling, screening among others for the egg donor, the vagueness or ambiguity in defining the standard limit of the oocytes to be placed in a women and the gross irregularities of the clinic.
- No Post maternity or Post Delivery care for the Surrogate Mother
The 2013 and the 2010 Bills provide medication, food or health safeguards only during the term of Surrogate pregnancy; but do not provide for any post maternity care or medical treatment for the surrogate mother for any sickness disability arising out of the adverse consequences of surrogate pregnancy.
- No Breastfeeding for Surrogate Child
Under both the drafts of the ART Bill, the 2010 and the recent 2013, the surrogate child is deprived of breast feeding as Bill does not provide for the surrogate mother to breast feed the surrogate child. This is one of the grave or serious deprivation or denial of health, growth, development of surrogate child. World Health Organization strongly recommends for breastfeeding of all children including surrogate children for their highly nutritional value and its contribution towards the early development of child.
- No Legal Counseling for Surrogate Mother
The Bills, both the previous 2010 and the present 2013 draft, do not provide free legal counseling for the surrogate mother. The surrogate mothers lack understanding of Surrogacy Agreement, the implications, the rights and obligations arising thereunder and the consequences on breach of this agreement among other things. Therefore, necessary legal counseling must be provided.
- Trafficking surrogate children or Baby Selling not included as Offence
Though the ART Bills, 2010 and 2013 provide a list of offences and prescribe punishments for the same; certain offense namely trafficking of surrogate children, baby selling under the garb of surrogacy and incidental offences are not included under the ART Bill 2010. It may be appropriate to mention here the case of Doctor running a fertility clinic in Gujarat India arrested for baby selling under the garb of surrogacy.
- No Background Screening for Intending Couple
Under both the Bill 2010 and 2013, there is neither assessment of individual’s background or screening of individual’s ability to be fit parent prescribed for the intending couple seeking to avail surrogacy, nor there is a body appointed for this purpose. Thus, taking advantage of such position an Israeli pedophile who had served a year-and-a-half in jail for sexually abusing children got a surrogate baby girl in India and left Indian territory which subsequently was detected in Israel. The only criteria laid down for intending couple is their marital status as heterosexual married male and female and age to be above 21 years and no other criteria is laid down.
- No Upper Age Limit Prescribed for Intending Couple to Avail Surrogacy
The ART Bills 2010 and 2013 provide the minimum age limit as 21 years for the intending couple but the maximum age limit for intending couple is not laid down but the Bill provides for both the minimum and the maximum age limit for egg donor surrogate mother to be between 21 years to 35 years. In absence of such defined maximum age limit for the intending couple, a couple of above 55 years or 60 years or above may avail surrogacy to have children and there would be noting in law to prevent the same. This may not necessarily be in the interest of new born child.
- Ending Comments
The Bill in substance and spirit remains the same, save a few minor modifications. However a few progressive provisions have been made as discussed above but there the wide range of omissions and inadequacies under the Bill which needs immediate consideration. In light of issues mentioned, it is imperative that the ART Bill 2013 is revisited to incorporate some of the pressing concerns discussed above.
The need of the hour is early enforcement of law to put a check on the non compliance and misuse of this technology.
 Baby Manaji Yamanda. Union of India, (2008) 13 S.C.C. 518.
 First person, India’s booming surrogacy business, Guardian Weekly, Dec. 30, 2009, available at http://www.theguardian.com/world/2009/dec/30/india-women (last visited Feb. 15, 2014).
 Indian Council of Medical Research. The Assisted Reproductive Technology (Regulation) Bill– 2008(Draft) Ministry of Health and Family Welfare, Government of India, available at http://icmr.nic.in/art/Draft%20ART%20(Regulation)%20Bill%20&%20Rules%20-%202008-1.PDF (last visited Feb. 15, 2014) [hereinafter Draft Bill 2008].
 The Assisted Reproductive Technologies (Regulation) Bill – 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (last visited Feb. 15, 2014) [hereinafter ART Bill 2010].
 Aarti Dhar, Of Surrogacy And The Law, The Hindu, Aug. 1, 2013, available at http://www.thehindu.com/todays-paper/tp-national/of-surrogacy-and-the-law/article4976034.ece (last visited Feb. 25, 2014). See also, Civil Society Window Presentation, Challenges posed by Commercial Surrogacy in India by SAMA Resource Group for Women and Health , 24. 07. 2013, Yojana Bhawan , Chairperson DR. Syaeda Hameed , Member Planning commission http://planningcommission.nic.in/data/ngo/csw_pres/csw_surrogacy0612.pdf (last visited Feb. 11, 2014).
 See generally, Parmanand Katara v. Union of India, A.I.R. 1989 S.C. 2039; R. Rajagopal vs State Of T.N, 1994 S.C.C. (6) 632; Kharak Singh v. State of U.P., (1964) 1 S.C.R. 332; B. K. Parthasarthi v. Government of Andhra Pradesh, A.I.R. 2000 A. P. 156; Javed v. State of Haryana, (2003) 8 S.C.C. 369.
See also Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy, Report no. 228, August 2009, available at http://lawcommissionofindia.nic.in/reports/report228.pdf (last visited Feb. 18, 2014)
Universal Declaration of Human Rights art. 16 (1), Dec. 10, 1948, U.N.G.A. Res 217 A (III), available at http://www.un.org/en/documents/udhr/ (Last visited Feb. 25, 2014); International Covenant on Civil and Political Rights art. 23 (2), Dec. 16, 1966, 999 U.N.T.S. 171, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx (last visited Feb. 18, 2014).
 UK Human Fertilization and Embryology Act 2008, (c 22), Introductory Objective http://www.legislation.gov.uk/ukpga/2008/22/introduction (last visited Jan. 25, 2014).
 Australia , New South Wales Surrogacy Act 2010, No 102 , Part I , Preliminary http://www.legislation.nsw.gov.au/xref/inforce/?xref=Type%3Dact%20AND%20Year%3D2010%20AND%20no%3D102&nohits=y (last visited Jan. 25, 2014).
 ART Bill 2013, supra note 7 at §2 (zj).
 ART Bill 2013, supra note 7 at § 2 ( j) .
 ART Bill 2010, supra note 5 at § 2 (cc).
 ART Bill 2013, supra note 7at § 52 (8).
 ART Bill 2013, supra note 7 at § 26 (18).
 Pritha Chatterjee, Egg Donor’s Death: Internal Bleeding, Ovaries Severely Enlarged, Says Report, Indian Express, Feb. 9, 2014, available at http://indianexpress.com/article/cities/delhi/man-asks-medical-council-to-probe-wifes-death-after-egg-donation/99/ (last visited Feb. 18, 2014).
 ART Bill 2013, supra note 7 at § 60 (5).
 ART Bill 2010, supra note 5 at § 34 (5).
 Richard Kennedy, Risks And Complications Of Assisted Conception, British Fertility Society, Aug. 2005, available at http://www.britishfertilitysociety.org.uk/public/factsheets/conceptionrisks.html (last visited Feb. 18, 2014).
 ART Bill 2013, supra note 7 at § 58 (1).
 ART Bill 2013, supra note 7 at § 2 (J).
 ART Bill 2013, supra note 7 at § 51 (1).
 ART Bill 2013, supra note 7 at § 63(2).
 ART Bill 2010, supra note 5 at § 37 (3).
 ART Bill 2013, supra note 7 at § 71(2).
 ART Bill 2013, supra note 7 at § 54.
 ART Bill 2013, supra note 7 at § 56(1).
 ART Bill 2010, supra note 5 at § 32 (1).
 ART Bill 2013, supra note 7 at § 58 (2).
 ART Bill 2013, supra note 7 at § 32 (2).
 Universal Declaration on Bioethics and Human Rights art. 6, Oct. 19, 2005, available at http://portal.unesco.org/en/ev.php-URL_ID=31058&URL_DO=DO_TOPIC&URL_SECTION=201.html, (last visited Feb. 4, 2014).
 ART Bill 2013, supra note 7 at § 60 (2).
 Michael Cook, Family Of Indian Surrogate Gets Some Compensation For Her Death, Bio Edge, May 26, 2012 , http://www.bioedge.org/index.php/bioethics/bioethics_article/10077 (last visited Feb. 18, 2014).
 ART Bill 2013, supra note 7 at § 60 (17) (ii).
 ART Bill 2013, supra note 7 at § 64 (1).
 ART Bill 2010, supra note 5 at § 35.
 Pritha Chatterjee, supra note 15.
 Tripti Nath, Surrogate Children In India Deprived Of Mother’s Milk, The Hindu , Jul. 16, 2013, available at http://www.thehindu.com/sci-tech/health/diet-and-nutrition/surrogate-children-in-india-deprived-of-mothers-milk/article4917720.ece, (last visited Feb. 5, 2014). See also, Dr. Sonia Malik, Bond with your baby, The Hindu , Aug. 11, 2012, available at http://www.thehindu.com/sci-tech/health/medicine-and-research/bond-with-your-baby/article3745730.ece (last visited Feb. 5, 2014).
 ART Bill 2013, supra note 7 at § 2 (zj). Compare ART Bill 2010, supra note 5 at § 2 (cc).
 Ujjwala Nayudu, Surrogacy As Cover For Trading In Babies, Indian Express, Jan. 8, 2013, available at http://archive.indianexpress.com/news/surrogacy-as-cover-for-trading-in-babies/1055849/ (last visited Feb. 17, 2014).
 Manan Kumar & Ritika Chopra, India’s Shame Story: Israeli Paedophile Adopts Girl Through Surrogate Mother, DNA, Jun. 8, 2013, available at http://www.dnaindia.com/india/report-indias-shame-story-israeli-paedophile-adopts-girl-through-surrogate-mother-1845195 (last visited Jan. 20, 2014).