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Surrogacy in India and Indian surrogates became increasingly popular amongst intended parents in industrialised nations because of the relatively low costs and easy access offered by Indian surrogacy agencies. [1] Clinics charged patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate's fee, and delivery of the baby at a hospital. [2] Including the costs of flight tickets, medical procedures and hotels, this represented roughly a third of the price of the procedure in the UK and a fifth of that in the US. [3] [4] Surrogate mothers received medical, nutritional and overall health care through surrogacy agreements. [5] [6]
In 2005, the government approved the 2002 draft of the National Guidelines for the Accreditation, Supervision and Regulation of ART Clinics in India, in 2002. [7] Before commercial surrogacy was banned in 2015, India was a popular destination for surrogacy. The economic scale of surrogacy in India is unknown, but study backed by the United Nations in July 2012 estimated the business at more than $400 million a year, with over 3,000 fertility clinics across India. [8]
In 2013, surrogacy by foreign homosexual couples and single parents was banned. [9] In 2015, the government banned commercial surrogacy in India and permitted entry of embryos only for research purposes. [7] Shortly thereafter in 2016, a Surrogacy (Regulation) Bill [10] was introduced and passed by Lok Sabha, the lower house of the Indian parliament, proposing to permit only heterosexual Indian couples married for at least five years with infertility problems to access altruistic or unpaid surrogacy and thereby further banning commercial surrogacy. [11] The 2016 bill lapsed owing to the adjournment sine die of the parliament session. [12] The bill was reintroduced and passed by the Lok Sabha in 2019. [13] [14] The bill would require to be passed by the Rajya Sabha, upper house of the Indian parliament and presidential assent before it becomes an act and thereby a law. [15]
In 2008, a baby (Manji Yamada) born through surrogacy was unable to leave India for three months after her birth because she held neither Indian nor Japanese nationality. The case came before the Supreme Court of India. [16] The issue was resolved after the Japanese government issued a one-year visa to her on humanitarian grounds. The Japanese government issued the visa after the Indian government granted the baby a travel certificate in September 2008 in line with a Supreme Court direction. [17]
In 2009 in Jan Balaz v. Anand Municipality and ors., [18] the Gujarat High Court conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district. [19] The court observed: "We are primarily concerned with the rights of two newborn, innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. Emotional and legal relationship of the babies with the surrogate mother and the donor of the ova is also of vital importance." The court considered the surrogacy laws of countries like Ukraine, Japan, and the United States.
Because India does not offer dual citizenship, [20] the children will have to convert to Overseas Citizenship of India if they also hold non-Indian citizenship. [21] Balaz, the petitioner, submitted before the Supreme Court that he shall be submitting his passports before the Indian Consulate in Berlin. He also agreed that a NGO in Germany shall respond back to India on the status of the children and their welfare. The Union of India responded that India shall make all attempts to have the children sent to Germany. German authorities have also agreed to reconsider the case if approached by the Indian. [22]
In May 2010, the Balaz twins were provided the exit and entry documents that allowed them to leave India for Germany. The parents agreed to adopt them in Germany according to German rules. [23]
According to The Guardian, a surrogate mother died because she didn't get the proper medical attention. [24] Conservative estimates show that more than 25,000 children are now being born through surrogates in India every year in an industry worth $2 billion. [24] Domestic demand is increasing, but as fertility levels drop elsewhere, at least 50% of these are "commissioned" by overseas, mainly western, couples. [24] Most of the industry is operating unchecked. India's medical research watchdog drafted regulations more than two years ago, yet they still await presentation in parliament, leaving the surrogates and baby factories open to abuse. [24]
The Indian Council for Medical Research has given guidelines in the year 2002, approved by the government in 2005, regulating Assisted Reproductive Technology procedures. [7] The Law Commission of India submitted the 228th report on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. The following observations had been made by the Law Commission:
The Assisted Reproductive Technology Bill, 2013 has been pending for quite a while and it has not been presented in the Indian Parliament. It will not allow commercial surrogacy that involves exchange of money for anything other than paying for medical expenses for the mother and the child. [25]
The bill would prohibit these from surrogacy: couples already having one child, foreigners or Overseas Citizens of India (OCI), holders as well as live-in-Partners, single people, homosexuals and widows. There has been significant criticism of the bill. [26]
In 2016, a Surrogacy (Regulation) Bill [10] was introduced and passed by Lok Sabha, the lower house of the Indian parliament, proposing to permit only Indian heterosexual couples married for at least five years with infertility problems to access altruistic or unpaid surrogacy and thereby banning commercial surrogacy. [13] [11] The 2016 bill lapsed owing to the adjournment sine die of the parliament session. [12] The bill was reintroduced and passed by the Lok Sabha in 2019. [13] [14]
The Surrogacy Bill (Regulation) 2019 was enacted by the Minister of Health and Family Welfare on 15th July 2019. Harsh Vardhan introduced in Lok Sabha. The bill defines surrogacy as the practice of a woman intentionally handing over a child to a couple of their choice after the birth with the intention of handing the child over to a couple of their choice.
Surrogacy Regulations: This bill prohibits commercial surrogacy, but allows altruistic surrogacy. Altruistic surrogacy does not provide financial compensation to the surrogate mother other than medical expenses and insurance coverage during pregnancy. Commercial surrogacy includes surrogacy or related procedures performed for economic benefit or compensation (cash or in kind) beyond basic medical expenses and insurance coverage.
Surrogacy and Abortion: A child born through surrogacy is considered the biological child of the intended couple. Surrogate abortion requires the written consent of the surrogate mother and the approval of the competent authority. This approval must comply with the Abortion Act 1971. Additionally, a surrogate mother can decline surrogacy before the embryo has implanted in the uterus.
Violations and Penalties: Violations under this law include: (ii) exploitation of surrogate mothers; (iii) not abandon, exploit or possess the surrogate mother; (iv) selling or importing human embryos or gametes for surrogacy; Penalties for such violations are up to 10 years imprisonment and fines up to Rs.100,000. The bill sets out a number of offenses and penalties for other violations of the bill's provisions.
The bill got passed in Rajya Sabha on Dec 8, 2021.
Baby M was the pseudonym used in the case In re Baby M, 537 A.2d 1227, 109 N.J. 396 for the infant whose legal parentage was in question.
Surrogacy is an arrangement, often supported by a legal agreement, whereby a woman agrees to delivery/labour on behalf of another couple or person, who will become the child's parent(s) after birth. People may seek a surrogacy arrangement when a couple do not wish to carry a pregnancy themselves, when pregnancy is medically impossible, when pregnancy risks are dangerous for the intended mother, or when a single man or a male couple wish to have a child.
Third-party reproduction or donor-assisted reproduction is any human reproduction in which DNA or gestation is provided by a third party or donor other than the one or two parents who will raise the resulting child. This goes beyond the traditional father–mother model, and the third party's involvement is limited to the reproductive process and does not extend into the raising of the child. Third-party reproduction is used by couples unable to reproduce by traditional means, by same-sex couples, and by men and women without a partner. Where donor gametes are provided by a donor, the donor will be a biological parent of the resulting child, but in third party reproduction, he or she will not be the caring parent.
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Birth tourism is the practice of traveling to another country or city for the purpose of giving birth in that country. The main reason for birth tourism is to obtain citizenship for the child in a country with birthright citizenship. Such a child is sometimes called an "anchor baby" if their citizenship is intended to help their parents obtain permanent residency in the country. Other reasons for birth tourism include access to public schooling, healthcare, sponsorship for the parents in the future, or even circumvention of China's two-child policy. Popular destinations include the United States and Canada. Another target for birth tourism is Hong Kong, where some mainland Chinese citizens travel to give birth to gain right of abode for their children.
Fertility tourism is the practice of traveling to another country or jurisdiction for fertility treatment, and may be regarded as a form of medical tourism. One can usually be considered as having fertility issues when they are unable to have a clinical pregnancy after 12 months of attempts with intercourse. Infertility, or the inability to get pregnant, affects about 8-12% of couples looking to conceive or 186 million people globally. In some places, rates of infertility surpass the global average and can go up to 30% depending on the country. Areas with lack of resources, such as assisted reproductive technologies (ARTs), tend to correlate with the highest rates of infertility.
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Overseas Citizenship of India (OCI) is a form of permanent residency available to people of Indian origin and their spouses which allows them to live and work in India indefinitely. Despite its name, OCI status is not citizenship and does not grant the right to vote in Indian elections or hold public office. The Indian government can revoke OCI status in a wide variety of circumstances. In addition, the OCI Card is only valid with valid international passport. As of 2020, there are 6 million holders of OCI cards among the Indian Overseas diaspora.
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The Akanksha Infertility Clinic is a women's health centre located in Anand, Gujarat, India, and headed by Dr Nayna Patel. The clinic was founded in 1999, and was originally focused on In Vitro Fertilization. India declared commercial surrogacy legal in 2002; however the clinic did not begin to do surrogacy until 2004. Patel, who appeared on Oprah Winfrey's talk show in 2007, has produced more than 1000 surrogate babies as of October 2015.
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Transnational Reproduction: Race, Kinship, and Commercial Surrogacy in India is a 2016 book by anthropologist Daisy Deomampo. The book analyzes transnational commercial surrogacy, focusing on the practices of doctors, surrogates, parents, and agents in India. The book proposes that the practice of transnational surrogacy reinforces social status distinctions through a shared "racial reproductive imaginary". Transnational Reproduction was reviewed in Medical Anthropology Quarterly, Social Anthropology, Anthropological Quarterly, International Journal of Comparative Sociology, and Signs.
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