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Laws That Every Couple Should Know, Before Undergoing ART


Date :17/09/19

Over the years, Assisted Reproductive Technology (ART) has turned out to be a blessing for those failing to conceive naturally. This artificial technique of bestowing parenthood has brought a smile to millions of faces. 
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There are specific laws and ethics dictated by institutions like ICMR, which every couple should know before choosing ART. Some of the major laws that cover this process as dictated by ICMR (Indian Council of Medical Research) are as follows:

 Rights And Duties Of Patients

According to the guidelines of ICMR (Indian Council of Medical Research),

  • ART shall be available to all persons, including single persons, married couples, and unmarried couples.
  • In case ART is used by a married or unmarried couple, there must be informed consent from both parties.
  • The parents of a minor child have the right to access information about the donor, other than the name, identity or address of the donor, or the surrogate mother, when and to the extent necessary for the welfare of the child.
  • All information about the patients shall be kept confidential, and information about ART procedures that are done on them shall not be disclosed to anyone other than the central depository of the ICMR, except with the consent of the person or persons to whom the information relates, or by a court order.

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Rights And Duties Of Donors

  • All information about the donors shall be kept confidential, and information about gamete donation shall not be disclosed to anyone other than the central database of the Indian Council of Medical Research, except with the consent of the person or persons to whom the information relates, or by order of a court of competent jurisdiction.
  • The donor shall have the right to decide what information may be passed on and to whom, except in the case of an order of a court of competent jurisdiction.
  • A donor shall relinquish all parental rights over the child that will be conceived from his or her gametes.
  • No assisted reproductive technology procedure shall be conducted on or concerning any gamete of a donor under this Act unless such donor has obtained the consent in writing of his or her spouse, if there, to such procedure. 

Rights And Duties Concerning Surrogacy

Both the couple or individual seeking surrogacy through the use of assisted reproductive technology, and the surrogate mother, shall enter into a surrogacy agreement which shall be legally enforceable. The surrogate mother may also receive monetary compensation from the couple or individual, as the case may be, for agreeing to act as such surrogate.

  • A surrogate mother shall relinquish all parental rights over the child.
  • No woman under twenty-one years of age and over forty-five years of age shall be eligible to act as a surrogate mother under this Act. No woman shall act as a surrogate for more than three successful live births in her life.
  • The surrogate mother shall be medically fit and free from all the diseases, and must declare in writing that she has not undergone intravenous medical treatment or received a blood transfusion.
  • Individuals or couples may obtain the service of a surrogate through a semen bank, or advertise to seek surrogacy provided that no such advertisement shall contain any details relating to the caste, ethnic identity or descent of any of the parties involved in such surrogacy. No assisted reproductive technology clinic shall advertise to seek surrogacy for its clients.
  • A surrogate mother shall, in respect of all medical treatments or procedures in relation to the concerned child, register at the hospital or such medical facility in her name, clearly declare herself to be a surrogate mother, and provide the name or names and addresses of the person or persons, as the case may be, for whom she is acting as a surrogate, along with a copy of the certificate mentioned in clause 17 below 27.
  • If the first embryo transfer has failed in a surrogate mother, she may, if she wishes, decide to accept on mutually agreed financial terms, at most two more embryo transfers for the same couple that had engaged her services in the first instance. No surrogate mother shall undergo embryo transfer more than three times for the same couple.
  • The birth certificate issued in respect of a baby born through surrogacy shall bear the name(s) of the genetic parents/parents of the baby.
  • The person or persons who have availed the services of a surrogate mother shall be legally bound to accept the custody of the child/children irrespective of any abnormality that the child/children may have, and the refusal to do so shall constitute an offense under this Act.
  • All information about the surrogate shall be kept confidential, and information about the surrogacy shall not be disclosed to anyone other than the central database of the Indian Council of Medical Research, except by order of a court of competent jurisdiction.
  • A surrogate mother shall not act as an oocyte donor for the couple or individual, as the case may be, seeking surrogacy.
  • No assisted reproductive technology clinic shall provide information on or about surrogate mothers or potential surrogate mothers to any person.
  • If the woman intending to be a surrogate is married, the consent of her spouse shall be required before she may act as a surrogate.
  • A surrogate mother shall be given a certificate by the person or persons who have availed of her services, stating unambiguously that she has acted as a surrogate for them.
  • A relative, a known person, as well as a person unknown to the couple, may act as a surrogate mother for the couple. In the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate.
  • A foreigner or foreign couple not resident in India, or a non-resident Indian individual or couple, seeking surrogacy in India shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after the pregnancy till the child/children are delivered to the foreigner or foreign couple
  • The party seeking the surrogacy must ensure and establish to the ART clinic through proper documentation that the party would be able to take the child/children born through surrogacy, including where the embryo was a consequence of donation of an oocyte or sperm, outside of India to the country of the party’s origin or residence as the case may be.
  • A couple or an individual shall not have the service of more than one surrogate at any given time.
  • A couple shall not have a simultaneous transfer of embryos in the woman and a surrogate.

Assisted reproductive technology (ART) is a relief for many couples who experience fertility issues. Monitoring this process by law helps to protect doctors, parents, donors, surrogates, and children and to ensure the implementation is in a socially responsible manner.

Blog Reviewed By: Dr Mangala Devi K R
 
Mail Us: dr_mangaladevi@yahoo.co.in

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