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IMA's viewpoint on the new draft Surrogacy (Regulation) Bill, 2016
Commercial surrogacy is banned in most developed countries, including Australia, UK, Canada, France, Germany, Sweden, New Zealand, Japan and Thailand.

Now this bill bans it in India too. But the bill allows altruistic surrogacy, where near relatives can legally carry someone else's child if no money (other than reasonable medical cost and insurance), favor or coercion is involved. 

Under the proposed law, only proven infertile Indian couples who have been married for at least five years can opt for surrogacy, while those who already have a child cannot do so.

Only Indian nationals will be allowed for altruistic surrogacy. Foreign nationals or even NRI or OIC will not be allowed. Only married couples will be allowed to opt of surrogacy. Gay, single, live-in couples are not allowed. The marriage should be a minimum of five years and the age of the woman should be from 23-50 and for the man 26-55.

The bill has penalty provisions for those violating the law when it comes into effect. The penalties include a huge monetary fine (ten lakh), and imprisonment (ten years) and even striking down the name from the medical register. This will increase paperwork. The records will have to be kept for five years and not 2 years. IMA welcomes the bill, however, the bill has much concerns, said Dr SS Agarwal – National President and Dr KK Aggarwal, Honorary Secretary General of IMA

IMA's viewpoints on the bill

·    There will be no role of brokers, agents or inter-mediators and the onus of proof in the case of negligence will be with the clinic and not surrogate or an egg donor. 

·    Reasonable medical expenses are not clear. Does it include her man-hours away from work?

·    Proven infertility would be difficult to certify. Infertility is a relative term and would be difficult to define in absolute terms.

·    Close relative not defined. The law that insists that a surrogate woman has to be a close relative of the infertile couple would be "impractical" and may also raise the risk of the surrogacy industry, driven by demand, moving underground, spawning illegal transactions. People will start making fake documents that they are near relatives.

·     5 years waiting after marriage is not scientific. It's true that a girl marries at 18 and a boy at 21. But why should a couple wait for 5 years if they marry at 40.

·     Imprisonment clause is now coming in every new bill PCPNDT, CEA, Health Data Bill and now surrogacy bills. To err is human. Doctors are not criminals. 10 years of jail and the 10-lakh penalty is unheard of.

·    There are more that 50 million infertile couples in the world and their desperation for a biological child has turned commercial surrogacy into a booming business.  Thousands of infertile couples rent wombs from poor women for nine months so they can take a baby back home. India has estimated 12 million to 15 million infertile couples. Big market for sperm and ova banking, embryo implantation and surrogate womb services.  Celebrities also rent wombs. An end to commercial surrogacy will be a big blow to many infertile couples. Infertile couples generally do not discuss in-vitro fertilization (IVF) or third-party reproduction (surrogacy) with close relatives. This is kept as secret as possible, particularly from their close family members - so how are they going to find altruistic close relatives.

·    Finding women from within the close family willing to be surrogates will not be easy. Many infertile couples are likely to find themselves in distress.

·    There are medical grounds where surrogacy is justified - imagine a woman who has lost her uterus during childbirth or a woman born without a uterus.

·    The proposed surrogacy law might even lead to break-up of marriages. This may lead to an increase in second marriages - if surrogacy is not allowed, some couples are likely to break up.

·    No surrogate till date has complained of ill treatment. The government could have defined reasonable compensation instead of a ban, which was the easy way out.

·    Parents who have their own child or have an adopted one will not be eligible to go for surrogacy. But India does not follow one child norm. Then why should a couple that has one baby not be allowed to go in for surrogacy? One's parental need for the number of children cannot be defined in law.

·    Why ban NRIs or OICs

·    National surrogacy board will be constituted under the chairmanship of health minister. Three female MPs will be member of the board and two MPs will be form Lok Sabha. Why all females in the board.

·    There should be a medical certificate that the couple is not able to produce their own child. Who will issue the certificate?

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