tag:blogger.com,1999:blog-15602189.post3973874631934684061..comments2023-09-21T16:17:51.838+05:30Comments on Law and Other Things: The Draft ART Bill, 2008Anonymoushttp://www.blogger.com/profile/09348738084817273397noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-15602189.post-69498701731130932642011-03-10T23:19:11.673+05:302011-03-10T23:19:11.673+05:30The Bill has been framed by a committee which had ...The Bill has been framed by a committee which had 5 such doctors with clear and obvious Conflict Of Interest, they have been running IVF centres and making millions and now want to make even money through all means and now making it legal.<br />This is just like you invite 5 smugglers to frame a bill for enforcement of excise and tax. <br />Its all for commercial interest of handful of people. This surrogacy is not even allowed in many states of US and countries like Australia, Germany, France and many more. <br />Now, just like Product Patent, GATT agreement we have another law in India which has hidden agenda and its dire consequences are not being brought to the attention of public at large.<br /><br />SumitUnknownhttps://www.blogger.com/profile/00279294606194605518noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-90299921095371275022008-10-15T05:37:00.000+05:302008-10-15T05:37:00.000+05:30Vikram and Tarunabh,When a heterosexual couple ava...Vikram and Tarunabh,<BR/><BR/>When a heterosexual couple avail of an egg/sperm donor, only one of them has a biological connection with the child. For the other partner to gain full parental rights, the couple would have to adopt the child after birth. My understanding is that this bill does not seek to change that arrangement; the same would therefore apply to gay parents as well (whose situation would be very similar in the normal course unless they <EM>both</EM> seek to have a biological connection with the child through a more complex arrangement that I pointed out above). I believe that gay couples are still not permitted to adopt children under Indian law but those visiting India from the West could perhaps return with a single (i.e. biological) mother/father as the sole guardian and later carry out a second-parent adoption in their home countries. Viewed from this perspective, the limiting factor for gay couples is not so much this law as their right to adopt. The limitation here is more for heterosexual couples who have to be either married or 'living together' to qualify under s.32(1) (again, this definition is only operative provided <I>both</I> partners happen to be genetic parents of the child).<BR/><BR/>Tarunabh's point is certainly interesting and it does raise the question: is marital status going to be a restrictive factor preventing unmarried (but not married) gay couples from having a surrogate child? As mentioned above, in that case, because only one of the partners is biologically connected to the child, he/she would qualify under 'single persons', not 'unmarried couple' - my answer would therefore be no. Indeed, there was a <A HREF="http://www.hindustantimes.com/storypage/storypage.aspx?id=4d5e0c82-f576-4574-8e86-808de3e03980&ParentID=1b36bc5f-59de-481f-b80b-e3b01924a510&MatchID1=4665&TeamID1=10&TeamID2=3&MatchType1=1&SeriesID1=1174&PrimaryID=4665&Headline=Gay+pair+has+twins+by+surrogate+mom" REL="nofollow">report</A> in <EM>HT </EM>of an Israeli gay couple having a child in India through this route.Dilip Raohttps://www.blogger.com/profile/18294894305584371011noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-22140636232834648572008-10-15T01:26:00.000+05:302008-10-15T01:26:00.000+05:30Tarunabh's comment is an interesting one, and I do...Tarunabh's comment is an interesting one, and I do not understand Dilip's response. The statute, which Dilip quotes, says the baby's name can be derived from one or more of the genetic parent(s). Unless he has cited the statute wrongly, I don't see why this would impair the right of a same-sex couple to invoke artificial reproductive technologies absent an express prohibition under the statute.Anonymoushttps://www.blogger.com/profile/09348738084817273397noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-88114721147505301312008-10-10T21:43:00.000+05:302008-10-10T21:43:00.000+05:30Tarunabh,As per this law, a gay couple cannot have...Tarunabh,<BR/><BR/>As per this law, a gay couple cannot have a child; only a gay person can do so. Marital status of a gay individual therefore does not matter except for issues of adoption. <BR/><BR/>Under s.34(10), the baby ‘shall bear the name of the genetic parents/parent’ meaning the child belongs to him/them who contribute(s) to the genetic make-up of the baby (excluding anonymous donors). Only one of the two partners of a gay couple can make such a contribution (the other gamete coming from an anonymous donor of the opposite sex who is obliged to relinquish all parental rights) for this purpose and the child will therefore belong only to him/her. <BR/><BR/>Gay couples generally use one of two methods to obtain a biological connection with a child. One is to get an ART clinic to mix the sperm samples with separate batches of eggs from the same donor – that way, if implanted successfully, you might end up with two half-twins. Note that even in such a case, neither baby has a genetic connection to both partners. Under the proposed law, there are several obstacles to doing this. The other route is for one of the partners to have a child with a close relative of the other (of the opposite sex) either through traditional surrogacy or through IVF – both are barred under different provisions of the act.Dilip Raohttps://www.blogger.com/profile/18294894305584371011noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-69468553638443820242008-10-10T15:17:00.000+05:302008-10-10T15:17:00.000+05:30very interesting, indeed, from another point of vi...very interesting, indeed, from another point of view - gay parenthood. we have read a lot about the health ministry's stand on decriminalisation of gay sex. now, this Bill appears to leave enough judicial elbow room for extending the right to access ART to same-sex couples, although without spelling it out. <BR/><BR/>section 2(e) of the Bill says - “couple”, means the persons living together and having a sexual relationship that is legal in the country / countries of which they are citizens or they are living in;<BR/><BR/>Note the gender neutral terminology and the only requirement is legality of the sexual relationship - not even legal recognition in terms of marriage or civil partnership, just that such relationship is not illegal. So, if section 377 is read down, as demanded by the Health Ministry, this definition will include same-sex couples within the definition of 'couples'. This effect appears to be too precise to have been a mere coincidence.<BR/><BR/>But only a few paragraphs later, comes this:<BR/><BR/>section 2(w) “unmarried couple”, means a man and a woman, both of marriageable age, living together with mutual consent but without getting married;<BR/><BR/>Clear use of gendered language. So, a same-sex couple 'married' abroad can legally use ART (since there is no definition of 'married couple'), but an 'unmarried' couple can only be heterosexual. The status of civil unions is probably left to the judiciary to decide in the future.<BR/><BR/>And now, the section that specifies the right to have ART -<BR/>section 32(1) Subject to the provisions of this Act and the rules and regulations made<BR/>thereunder, ART shall be available to all persons including single persons, married couples and unmarried couples.<BR/><BR/>Now I am really confused. Where does this leave us? This definition is an inclusive one, so it is not restricted to 'single persons', 'married couples' and 'unmarried couples'. There is perhaps a window left open for unmarried gay couples who, according to the two legal definitions, are a 'couple' under the Act (after 377 is read down) but not an 'unmarried couple'. The non-exhaustive language should allow the courts to fill in the gap.<BR/><BR/>Is this an accurate reading of the Bill in light of a potential litigatory issue?Tarunabh Khaitanhttps://www.blogger.com/profile/07234574402062317396noreply@blogger.com