Key laws and policies
- The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act (1994, amended 2003)
- Ethical Policies on the Human Genome, Genetic Research and Services, Department of Biotechnology, Ministry of Science and Technology (June 2001)
- National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, Indian Council of Medical Research (2005)
- Guidelines for Stem Cell Research and Therapy, Indian Council of Medical Research (2007)
- Ethical Guidelines for Biomedical Research on Human Participants, Indian Council of Medical Research (2006)
(Note the Indian Council of Medical Research ART Guidelines are non-binding) (see http://icmr.nic.in/art/art_clinics.htm)
- Baby Manji Yamada v. Union of India & Anr. (2008) INSC 1656 (29 September 2008): www.liiofindia.org/cgi-bin/disp.pl/in/cases/cen/INSC/2008/1656.html (2008 Supreme Court ruling on commercial surrogacy)
- Draft bills: Despite a number of attempts at passing laws, the bills have not been passed through parliament. Examples:
a) Assisted Reproductive Technology (Regulation) Bill, 2013
b) The Assisted Reproductive Technologies (Regulation) Bill – 2010: http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf [DRAFT]
Sex selection by any means is prohibited in the Pre-Natal Diagnostic Techniques Amendment Act, which was subsequently amended to reflect technological developments. The Indian Council of Medical Research’s National Guidelines for Accreditation, Supervision and Regulation of ART Clinics permits an exception for sex selection by PGD "to avoid the risk of transmission of a genetic abnormality assessed through PGD."
Reproductive cloning and inheritable genetic modification are prohibited by the Department of Biotechnology's Ethical Policies on the Human Genome, Genetic Research and Services, the Indian Council of Medical Research's Ethical Guidelines for Biomedical Research on Human Participants, and the Council's Guidelines for Stem Cell Research and Therapy.
Permitted and regulated practices
PRE-IMPLANTATION GENETIC DIAGNOSIS
- Preimplantation genetic diagnosis is allowed in case of suspected medical conditions based on parental history, including both genetic conditions and the age of the mother.
- Commercial surrogacy was legalized in 2002, and loosely regulated under 2005 guidelines from the Indian Council of Medical Research. In February 2008, the Ministry of Women and Child Development considered new legislation but it never passed. More recent legislation has also been proposed, but again has not been enacted.
- Providing eggs for assisted reproduction is permitted under guidelines, which do allow payments.
- Eggs for research is also permitted, usually with reimbursement of expenses.
International surrogacy is somewhat regulated via visa conditions: Bureau of Immigration, Ministry of Home Affairs, India - http://boi.gov.in/content/surrogacy provides the following:
- Type of visa for foreign nationals intending to visit India for Commissioning Surrogacy and conditions for grant visa for the purpose.
1. Foreign nationals intending to visit India for the purpose of Commissioning Surrogacy are required to hold Medical Visa. In such cases, the surrogate mother is generally an Indian national. It has been noticed that some foreign nationals visit India for commissioning of surrogacy on Tourist visa which is not the appropriate type of visa for the purpose.
2. The Ministry of Home Affairs has decided that Foreign nationals intending to visit India for the purpose of Commissioning Surrogacy shall be issued Medical Visa subject to the fulfillment of following conditions:
i)The foreign man and woman are duly married and the marriage should have sustained at least for two years.
(ii) A letter from the Embassy of the foreign country in India or the Foreign Ministry of the country should be enclosed with the visa application stating clearly that (a) the country recognizes surrogacy and (b) the child/children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/children of the couple commissioning surrogacy.
(iii) The couple will furnish an undertaking that they would take care of the child/children born through surrogacy.
(iv) The treatment should be done only at one of the registered Assisted Reproductive Technology (ART) clinics recognized by ICMR. (The list of such clinics will be shared with MEA from time to time).
(v) The couple should produce a duly notarized agreement between the applicant couple and the prospective Indian surrogate mother.
3. If any of the above conditions are not fulfilled, the visa application shall be rejected.
4. The foreign couple would be required to take exit permission from the FRRO/FRO before leaving India for their return journey. Before granting “exit” , the FRRO/FRO will see whether the foreign couple is carrying a certificate from the ART clinic concerned regarding the fact the child/children have been duly taken custody of by the foreigner and that the liabilities towards the Indian surrogate mother have been fully discharged as per the agreement. A copy of the birth certificate (s) of the surrogate child/children will be retained by the FRRO/FRO along with photocopies of the passport and visa of the foreign parents.
5. It may be noted that for drawing up and executing the agreement cited at para 2(v) above, the foreign couple can be permitted to visit India on a reconnaissance trip on Tourist Visa, but no samples may be given to any clinic during such preliminary visit.
- Note: There are extensive documents to be submitted by the foreign nationals to FRROs/FROs for exit permission in case of Surrogacy cases.
- Bureau of Immigration, Ministry of Home Affairs, India - http://boi.gov.in/content/surrogacy