Saturday, November 9, 2013

HIgh Court confusion over singles for surrogacy in India


Ministries differ on single surrogacy

Ajay Sura, TNN Nov 2, 2013, 11.41AM IST
http://articles.timesofindia.indiatimes.com/2013-11-02/chandigarh/43611196_1_surrogacy-medical-visa-anil-malhotra
CHANDIGARH: It appears the ministry of health and family welfare and the ministry of home affairs (MHA) are not on the same page over the issue of singles opting for surrogacy in the country.
The divergent views came out recently before the Punjab and Haryana high court during the hearing of a plea filed by a Sudanese national against the Indian laws excluding single foreign nationals and unmarried couples from coming to India for purposes of surrogacy on medical visas.
Finding it a confused situation because of divergent views of two vital organs of the central government, the division bench comprising Chief Justice Sanjay Kishan Kaul and Justice Augustine George Masih has asked the central government to file a "one common stand" on the issue and apparent prima-facie conflict should not be left for the court to decide. HC also made it clear that court is not supposed to "reconcile the different views". The case is now fixed for November 26 for further hearing.
Conflict between the two vital organs of the central government surfaced before the HC, when the responding to the petition, Indian Council of Medical Research (ICMR), which is part of the ministry of health and family welfare submitted that Draft Assistant Reproductive Technology (Regulation) Bill-2013 contain the provisions for surrogacy of single person. It was also informed that for this purpose Assisted Reproductive Technology (Regulation) Bill-2010 has been revised based on the recommendations of the Ministry of Law & Justice.
However, responding the same petition, the MHA, in a separate reply, submitted before the HC that only married foreign men and women whose marriage has sustained for at least two years would be eligible to apply for medical visa for the purpose of surrogacy in India.
In this case, which is of its own kind, the petitioner, Shihabeldin, a resident of Sudan, submitted before the HC that he is a singleton and wishes to become a single parent through a surrogacy arrangement and contacted a Chandigarh based medical institution on June 29. His counsel Anil Malhotra informed that surrogacy facility in India could not be availed by a single foreign parent because of the MHA guidelines issued on July 9, 2012 limiting the facility of surrogacy only to married couples with two years of subsisting marriage. Malhotra argued that MHA guidelines puts an embargo on foreign single persons or foreign unmarried couples from commissioning surrogacy in India through ART is wholly whimsical classification by any law. Seeking directions to struck down the said guidelines, counsel further contended that foreign nationals, overseas citizens of India, and person of Indian Origin cannot be discriminated in the matter of surrogacy upon comparison with Indian nationals and imposing a ban on surrogacy by foreign single persons or foreign unmarried couples wholly contrary to law.

1 comment:

Marty Ramey said...

So, what is the scoop on the ability of the two ministries to reconcile their positions? If they cannot agree on a common position, does the High Court have jurisdiction to then decide the matter on its own?

Seems like Nov. 26 is the deadline. Someone either has to give or no one gives. Just curious as to what is going on behind the scenes with this continuance.