Indian surrogacy is legal for unmarried couples or individuals -- Indian Council of Medical Research Bill 2010

I'm so psyched about this!

So, there has been quite a stir, and perceived or real fear going around the globe, about the Ministry of Home Affairs recent guideline issued in July 2012 and disseminated to Indian consular agencies and embassies in December 2012. I did my own research and downloaded the ICMR ART Bill 2010 as well as the ICMR ART Rule 2010. I found that in fact the "new" guideline violates the language set forth by the ICMR ART Bill 2010. Please download the documents here (click on the "Draft" link under Guidelines): http://www.icmr.nic.in/icmrnews/art/art.htm 

Below is the language that very much contradicts the "new" guideline publicized by the Ministry of Home Affairs. 

I. Bill 2010, page 29, Chapter VII, RIGHTS AND DUTIES OF PATIENTS, DONORS, SURROGATES AND CHILDREN, Section 32, clearly states that:
(1) Subject to the provisions of this Act and the rules and regulations made

thereunder, assisted reproductive technology shall be available to all

persons including single persons, married couples and unmarried

couples.

(2) In case assisted reproductive technology is used by a married or unmarried

couple, there must be informed consent from both the parties.

II. Bill 2010, page 33, Section 35, clearly states that:

(2) A child born to unmarried couple through the use of assisted reproductive technology, with the consent of both the parties, shall be the legitimate child of both parties.

**From my understanding, the "new" guideline is using page 38, Chapter IX, MISCELLANEOUS, Section 48,  in order to "discriminate" against same-sex couples or unmarried couples, and single individuals. Here is the bill's language:

Power of the Central Government to make rules –

(1) The Central Government may make rules for carrying out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for --

(e) the criteria for selecting parents for an assisted reproductive technology procedure;
(h) the eligibility of couples and individuals to use an assisted reproductive technology procedure;

**You may use the above information to challenge the inconsistency this "new" guideline has created (perhaps with the help of a lawyer, if necessary) -- but then again, they could always change the rules. One good thing about the current situation is that there is no wording on Chap. IX that mentions anything about the Central Government making new rules or guidelines that "supersede" what is currently on the bill. If the Ministry says that the "new" guideline follows what is on the bill, then it must not contradict the bill's intent and wording. Also, who is the "Central Government"? Is it the "Ministry" of something? Somehow, I doubt that the definition of Central Government in this bill is merely the "Ministry" of something. Unfortunately, the bill did not explicitly define "Central Government" on Chap. 1, Clause 2 (Definitions). Nevertheless, I believe that legally, this "new" guideline can be challenged!

Update: SCI also pointed out the following:

Chapter I, Clause 2 (h) “couple”, means two persons living together and having a sexual relationship that is legal in India. 

Note: Homosexuality has been ruled legal by the Delhi High Court in July 2009.

Chapter I, Clause 2 (v) of the Assisted Reproductive Technology (Regulation) Bill 2010 provides definition of “married couple”, means two persons whose marriage is legal in the country / countries of which they are citizens;

Chapter I, Clause 2 (dd) of the Assisted Reproductive Technology (Regulation) Bill 2010 provides definition of “unmarried couple”, means two persons, both of marriageable age, living together with mutual consent but without getting married, in a relationship that is legal in the country / countries of which they are citizens;

Chapter VII, Clause 32 of the Assisted Reproductive Technology (Regulation) Bill 2010 provides,“Rights and duties of patients – (1) Subject to the provisions of this Act and the rules and regulations made thereunder, assisted reproductive technology shall be available to all persons including single persons, married couples and unmarried couples.”

Chapter VII, Clause 34 (19) of the Assisted Reproductive Technology (Regulation) Bill 2010provides “…..a letter from either the embassy of the Country in India or from the foreign ministry of the Country, clearly and unambiguously stating that (a) the country permits surrogacy, and (b) the child born through surrogacy in India, will be permitted entry in the Country as a biological child of the commissioning couple/individual) 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……”

Chapter VII, Clause 35 (3) of the Assisted Reproductive Technology (Regulation) Bill 2010 provides,“In the case of a single woman the child will be the legitimate child of the woman, and in the case of a single man the child will be the legitimate child of the man.”

Second trimester... Done! Welcome third trimester!

Whew! We got the update this week, and everything is progressing normally. Our surrogate, GT, is in good health. She even sent us a message that she is "praying for us". She is really a lovely lady. We will send her another card in a few weeks. I'm trying to be in her shoes and try to feel how "hard or easy" it would be for her after the birth of the twins. I'm sure it will not be easy, but time will help. Her two kids are lucky to have her (making this sacrifice for their future is quite a noble act).

Now, reality is sinking in fast... We have to start preparing for the twins -- Gotta contact the US Embassy about DNA testing and sending the test kit; figure out a place to stay (relatively cheaper and a less chaotic place to stay); figure out the budget for the trip. We are lucky that we'll have some hand-me-downs from friends -- one crib, double strollers, two baby bjorns, and some old baby clothes. My sister will give some of my one-year old niece's clothes, too. Don't know if the expense in shipping them from Down Under is worth it, or we'll just buy new ones. We need a checklist!

One scary issue that came up this week (which I read from one of the blogs) was the recent "enforcement" of rule in India that clearly discriminates against same sex couples and single parent. We and others might encounter troubling issues about our tourist visa when it's time to bring the twins home. It is probably not surprising that the Indian Ministry has suddenly started "enforcing" an anti-same sex or single parent discrimination about commissioning surrogacy in India. Although we seem to be not affected by this at this time, it is hard to be confident that in a few months, there will not be a "new" rule or another form of discrimination against same sex parents introduced by the Indian government. We just hope that the government will not succumb to bigotry and homophobia.

I'm already dreading the possible bureacratic nightmare in April/May.... Crossing my fingers that nothing drastic will happen. Below are the new scans.

Twin 1

Twin 2

Is it a boy or is it a girl?

Happy New Year! What a lovely cold, but sunny day for the Rose Parade.

Anyway, it's not quite a good start of the year for my partner and me. We were both sick while on the East coast. I'm almost over it, but my partner is still not well. Oh, how I hate flying with people coughing (and not covering their mouths). I guess in an enclosed space like an airplane, there's nothing you could do really... So, while we enjoyed visiting and being with family, it's never good to be sick and for them to get sick as well. Now my partner is worried about the twins' health when we travel from India back to the USA. I guess, we'll just have to hope that they'll be fine.

The flight back to California on New Year's eve was somewhat awful. It reminded me of how much I hated flying with babies screaming on top of their lungs. My ears were ringing for most of the flight. I keep asking myself, how can the parents allow for this brat to scream and cry without regard to other passengers nearby. What's annoying is that  the baby clearly "learned" to scream and cry as soon as she doesn't get her way. The parents didn't even show any sort of consideration for other people who are likely affected by the horrible noise in the next 6 hours of flight time. She definitely trained her parents well! So, like any parents, I asked myself, would I ever become such a parent? Someone despised by others for being ignorant and inconsiderate? The answer is, I don't know... I will sure try to be considerate of others in situations like this. Karma can be a bitch!

Well, enough about my rants. Going back to the question: is it a boy or a girl? Well, my partner's colleague showed us a research on how a USG scan for the NT (nuchal translucency) test could reveal if the baby is male or female. Efrat et al. 1999 published an analysis showing that the angle of the genital tubercle (GT) at 11-13 weeks old can be a good predictor of the gender. My partner calls it the "angle of the dangle". I'm including the photo of the images below. The GT with at least 30 degrees angle from the spine would likely be a boy, while GT with 20 degrees or less would likely to be a girl (the GT being in parallel to the spine). Based on this research, you could predict the gender of your baby. One caveat is that the NT scan needs to be ideally taken such that the spine and the GT of the baby could easily be delineated.