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The Surrogacy (Regulation) Bill, 2016: All you need to know

November 23rd, 2016 No comments

The Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha on November 21, 2016 and is listed for passage this week.  The Bill regulates altruistic surrogacy and prohibits commercial surrogacy.  We present a brief overview of the Bill and some issues that may need to be considered:

How is surrogacy regulated under the Bill?

The Bill defines surrogacy as a practice where a woman gives birth to a child for an eligible couple and agrees to hand over the child after the birth to them.  The Bill allows altruistic surrogacy which involves a surrogacy arrangement where the monetary reward only involves medical expenses and insurance coverage for the surrogate mother.  Commercial surrogacy is prohibited under the Bill.  This type of surrogacy includes a monetary benefit or reward (in cash or kind) that exceeds basic medical expenses and insurance for the surrogate mother.

What is the eligibility criteria for couples intending to commission surrogacy?

In order to be eligible, the couple intending to commission a surrogacy arrangement must be a close relative of the surrogate mother.  In addition, the couple has to prove that they fulfil all of the following conditions:

  • They are Indian citizens who have been married for at least five years;
  • They are in the age group of 23-50 years (female partner) and 26-55 years (male partner);
  • A medical certificate stating that either or both partners are infertile;
  • They do not have any surviving child (whether biological, adopted or surrogate), except if the surviving child is mentally or physically challenged or suffers from a fatal illness;
  • A court order concerning the parentage and custody of the child to be born through surrogacy;
  • Insurance coverage for the surrogate mother.

Additional eligibility conditions that the intending couple need to meet may be specified by regulations. It could be argued that the qualifying conditions for surrogacy should be specified in the Bill and not be delegated to regulations.

Who is a close relative under the Bill?

The Bill does not define the term close relative.

Who is eligible to be a surrogate mother?

The surrogate mother, apart from proving that she is a close relative of the couple intending the surrogacy, also has to prove all the following conditions:

  • She was or is married and has a child of her own;
  • She is 25 to 35 years old;
  • She has not been a surrogate mother before;
  • She possesses a medical certificate of her fitness for surrogacy.

What will be the legal status of a surrogate child?

The Bill states that any child born out of a surrogacy procedure shall be the biological child of the intending couple and will be entitled to all rights and privileges that are available to a natural child.

What is the process for commissioning a surrogacy?

The intending couple and the surrogate mother can undergo a surrogacy procedure only at surrogacy clinics that are registered with the government.  To initiate the procedure, the couple and the surrogate mother need to possess certificates to prove that there are eligible.  These certificates will be granted by a government authority if the couple and the surrogate mother fulfill all the conditions mentioned above.  The Bill does not specify a time period within which the authority needs to grant the certificates.  Further, the Bill does not specify a review or appeal procedure in case the application for the certificates is rejected.

What is the penalty for engaging in commercial surrogacy under the Bill?

The Bill specifies that any person who takes the aid of a doctor or a surrogacy clinic in order to conduct commercial surrogacy will be punishable with imprisonment for a minimum term of five years and a fine that may extend to five lakh rupees.

Offences such as (i) undertaking or advertising commercial surrogacy; (ii) exploiting or abandoning the surrogate mother or child; and (iii) selling or importing human embryo or gametes for surrogacy will attract a minimum penalty of 10 years and a fine up to 10 lakh rupees.

[This post has been co – authored by Nivedita Rao]

Legislation referred to parliamentary committees for scrutiny and report

December 23rd, 2010 No comments

In the recently concluded Winter Session of Parliament, nine Bills were introduced. Of the Bills introduced, 4 bills have been referred to the relevant Standing Committee for examining the Bill. The Standing Committees have been given three months to scrutinize the bills, hold consultations and present a report.  Details of these Bills are:

1.      The Forward Contracts (Regulation) Amendment Bill, 2010 (to be examined by the Committee on Food, Consumer Affairs and Public Distribution)

2.      The Multi-State Co-operative Societies (Amendment) Bill, 2010 (to be examined by the Committee on Agriculture)

3.      The NIMHANS, Bangalore Bill, 2010 (to be examined by the Committee on Health and Family Welfare)

4.      The National Identification Authority of India Bill, 2010 (to be examined by the Committee on Finance)

The composition of the Standing Committees examining the Bills can be found here. Typically, during the process of review the parliamentary standing committees issue advertisements in newspapers inviting public feedback and comments on the Bill. As and when the advertisements appear, details can be found on the PRS website.

Mandate of Committee examining issue of 2G-licenses and allocation of spectrum

December 21st, 2010 No comments

A Committee has been set up to examine appropriateness of procedures followed by the Department of Telecommunications in issuance of licences and allocation of spectrum during the period 2001-2009.  The Committee will be chaired by retired Judge of the Supreme Court, Justice (Retd.) Shri Shivraj V. Patil.  According to news reports the Committee is scheduled to submit its report by the first week of January 2011.  The Terms of Reference (TOR) of the Committee have been listed as:

1. To study the circumstances and developments in the Telecom sector that led to the formulation of the New Telecom Policy 1999 and subsequently, introduction of 4th Cellular Telecom Mobile Service (CMTS) licence in 2001.

2. To examine the internal (intra-departmental) procedures adopted by DoT during the period 2001-2009 for:
a. Issue of telecom access service licences, and
b. Allocation of spectrum to all telecom access services licencees during the above period.

3. To examine whether these procedures were in accordance with existing policies and directions of DoT/Government.

4. To examine whether these procedures were followed consistently and if not, identify specific instances of:
a. Deviation from laid down procedures;
b. Inappropriate application of laid down procedures;
c. Violation of underlying principles of laid down procedures.

5. To examine whether the procedures adopted were fair and transparent and were in keeping with the principles of natural justice and if not, identify the specific instances of lack of fairness and transparency.

6. To identify the deficiencies, if any, in the procedures as formulated and identify the public officials responsible for such deficiencies.

7. To identify the shortcomings and lapses, if any, in the implementation of the laid down procedures and identify the public officials responsible for such lapses.

8. To suggest remedial measures to avoid in future:
a. Deficiencies in formulation of procedures; and
b. Lapses in implementation of laid-down procedures.

Guesstimating Access to Food Security

April 7th, 2010 1 comment

The empowered group of ministers (EGoM) met recently to review the draft food security bill. Two issues have been reported to have gained prominence in their discussions – the exact number of poor families that are likely to be beneficiaries under the Food Security Act and reforming of the targeted public distribution system.

On the issue of estimating poverty, it is reported that the Planning Commission has been asked to submit a report in three weeks on the number of  (BPL) families that are likely to be legally entitled to food under the said Act.

The Minister of Agriculture is reported to have said “It is up to them [Planning Commission] whether they base it [BPL list] on the Tendulkar Committee report or the earlier N.C. Saxena panel or the Wadhwa committee.”

The estimation of poor persons in India involves two broad steps:

(i) fixing a threshold or poverty line that establishes poverty, and

(ii) counting the number of people below this line.

Estimating these numbers is a contentious issue – ridden by debates around norms and parameters for defining poverty, methodology to estimate poverty, etc.

The Planning Commission estimates the percentage and number of BPL persons separately in rural and urban areas from a large sample survey conducted by the National Sample Survey Organization (NSSO) which operates under the Ministry of Statistics and Programme Implementation.

In addition various government social sector schemes are targeted specifically at the poor and require the government to identify BPL beneficiaries.  For this purpose the Ministry of Rural Development designs a BPL census and that is conducted by the States/UTs.  The BPL census website gives data on BPL households for 2002 based on the poverty estimates for 1999-2000, by state, district and block.

The targeted public distribution system was recently subjected to scrutiny by a Supreme Court appointed vigilance committee headed by Justice D P Wadhwa. Amongst many issues, the committee reported that “the PDS is inefficient and corrupt.  There is diversion and black-marketing of PDS food grain in large scale.  Subsidized PDS food grain does not reach the poor who desperately need the same.  These poor people never get the PDS food grain in proper quantity and quality.”

The two issues highlighted here are important to ensure that the proposed legislation on food security is not a leaky bucket in the making.   As the draft food security bill is not in the public domain it is difficult to comment on how the government is thinking on length and breadth of issues that govern giving access to food security.