The New Draft Surrogacy (Regulations) Bill, 2016

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1. Commercial surrogacy is banned in most developed countries, including Australia, UK, Canada, France, Germany, Sweden, New Zealand, Japan and Thailand
2. Now the new bill bas it in India too
3. But the bill allows altruistic surrogacy, where women (near relative) can legally carry someone else’s child if no money (other than medical cost and insurance), favour or coercion is involved.
4. Under the proposed law, only infertile Indian couples who have been married for at least five years can opt for surrogacy, while those who already have a child cannot do so.
5. The law that insists that a surrogate woman has to be a close relative of the infertile couple would be “impractical” and may also raise the risk of the surrogacy industry, driven by demand, moving underground, spawning illegal transactions. People will start making fake documents that they are near relatives.
6. The Bill has penalty provisions for those violating the law, when it comes into effect. The penalties include a huge monetary fine (ten lac), and imprisonment (ten years) and even striking down the name from medical register. This will increase paper work. The records will have to be kept for five years and not 2 years.
7. Imprisonment clause is now coming in every new bill PNDT, CEA, Health Data Bill and now surrogacy bills. To err is human. Doctors are not criminals.
8. There will be no role of brokers, agents or inter-mediators and the onus of proof in the case of negligence will be with the clinic and not surrogate or an egg donor.
9. It will effect medical tourism
10. There are more that 50 million infertile couples in the world and their desperation for a biological child has turned commercial surrogacy into a booming business. Thousands of infertile couples rent wombs from poor women for nine months so they can take a baby back home. 11. India has estimated 12 million to 15 million infertile couples
12. Big market for sperm and ova banking, embryo implantation and surrogate womb services.
13. Celebrities also rent wombs
14. An end to commercial surrogacy will be a big blow to many infertile couples. Infertile couples generally do not discuss in-vitro fertilisation (IVF) or third-party reproduction (surrogacy) with close relatives. This is kept as secret as possible, particularly from their close family members – so how are they going to find altruistic close relatives.
15. Finding women from within the close family willing to be surrogates will not be easy. Many infertile couples are likely to find themselves in distress.
16. There are medical grounds where surrogacy is justified – imagine a woman who has lost her uterus during childbirth or a woman born without a uterus
17. The proposed surrogacy law might even lead to break-up of marriages. This may lead to an increase in second marriages – if surrogacy is not allowed, some couples are likely to break up.

Commercial donors in the disguise of a near relative or the spouse

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Many cases of kidney racket are being reported in the media. The new Transplantation of Human Organs and Tissues Rules, 2014 has been notified and is applicable to the medical practice.

People bring commercial donors in the disguise of a near relative or the spouse in most instances. There are loopholes in the organ transplant rules, which may make it difficult for the treating doctors to suspect them. Any way the treating doctors cannot be involved in any such scam as they have nothing to do with the committees constituted under the new rules and the law.

Procedure in case of near relatives

Who is a near relative?

When transplant of organs is between near relatives related genetically, namely, grandmother, grandfather, mother, father, brother, sister, son, daughter, grandson and granddaughter, above the age of eighteen years

Who can give permission?

The competent authority as defined at rule 2(c) or Authorisation Committee (in case donor or recipient is a foreigner)

Who is a ‘competent authority’?
(c) “Competent authority” means the Head of the institution or hospital carrying out transplantation or committee constituted by the head of the institution or hospital for the purpose;

What does this mean?
It can be a single window clearance by the head of the institution.

What is the role of the competent authority?
To evaluate conclusively
1. Documentary evidence of relationship e.g. relevant birth certificates, marriage certificate, other relationship certificate from Tehsildar or Sub-divisional magistrate or Metropolitan Magistrate or Sarpanch of the Panchayat, or similar other identity certificates like Electors Photo Identity Card or Aadhaar card.
2. Documentary evidence of identity and residence of the proposed donor, ration card or voters identity card or passport or driving license or PAN card or bank account and family photograph depicting the proposed donor and the proposed recipient along with another near relative, or similar other identity certificates like Aadhaar Card (issued by Unique Identification Authority of India). What are the loopholes?

The certificates can easily be fabricated.

What if the evaluation is inconclusive?

If in the opinion of the competent authority, the relationship is not conclusively established after evaluating the above evidence, it may in its discretion direct further medical test, namely, Deoxyribonucleic Acid (DNA) Profiling. The test shall be got done from a laboratory accredited with National Accreditation Board for Testing and Calibration Laboratories and certificate shall be given in Form 5. If the documentary evidences and test referred to do not establish a genetic relationship between the donor and the recipient, the same procedure be adopted on preferably both or at least one parent, and if parents are not available, the same procedure be adopted on such relatives of donor and recipient as are available and are willing to be tested, failing which, genetic relationship between the donor and the recipient will be deemed to have not been established.

What about husband and wife?
Where the proposed transplant is between a married couple the competent authority or Authorisation Committee (in case donor or recipient is a foreigner) must evaluate the factum and duration of marriage and ensure that documents such as marriage certificate, marriage photograph etc. are kept for records along with the information on the number and age of children and a family photograph depicting the entire family, birth certificate of children containing the particulars of parents and issue a certificate in Form 6 (for spousal donor).

What is the loophole?
People can show that they are married only for the purpose of transplant.

How to block the loopholes?
Any document with regard to the proof of residence or domicile and particulars of parentage should be relatable to the photo identity of the applicant in order to ensure that the documents pertain to the same person, who is the proposed donor and in the event of any inadequate or doubtful information to this effect, the Competent Authority or Authorisation Committee as the case may be, may in its discretion seek such other information or evidence as may be expedient and desirable in the peculiar facts of the case.

Can the treating doctor be the competent authority?
No. The medical practitioner who will be part of the organ transplantation team for carrying out transplantation operation shall not be a competent authority of the transplant hospital.

What is another way of reducing the gaps?
The competent authority may seek the assistance of the Authorisation Committee in its decision making, if required.

Plea filed in SC against MCI Oversight panel led by Justice Lodha

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(The Hindu) A petition has been filed in the Supreme Court accusing an apex court-appointed Oversight Committee led by former Chief Justice of India R.M. Lodha of over-stepping its given job of monitoring the work of Medical Council of India (MCI).

A Constitution Bench of the Supreme Court led by Justice Anil R. Dave, in a judgment in May 2016, had invoked its rare and extraordinary powers under Article 142 of the Constitution to set up a three-member committee, headed by Justice Lodha, to oversee the functioning of the Medical Council of India (MCI) for at least a year. The 165-page verdict had endorsed a Parliamentary Standing Committee report of March 2016 that medical education and profession in the country is at its “lowest ebb” and suffering from “total system failure” due to corruption and decay.

The Committee, also comprises Professor (Dr.) Shiv Sareen (Director, Institute of Liver and Biliary Sciences) and Vinod Rai (former Comptroller & Auditor General of India).

In his writ petition, Vyapam whistleblower Anand Rai, alleged that the Committee overshot MCI and the Health Ministry’s disapproval of hundreds of applications made by medical colleges without conducting any “fresh” inspection or assessment.

The petition claimed that the panel, in August, went on to grant recognition and allowed colleges to increase student intake and even extended the time schedule for colleges to remove deficiencies based on which MCI had recommended disapproval of their applications.

Besides its actions being in violation of the strict orders of the Supreme Court, the petition claimed that the Committee acted “not only in contravention of Articles 14 and 21 of the Constitution” but also exhibited its failure to “take decisions which fulfil the test of reasonableness and which are in the larger interest of the public”.

“The impugned decisions of Respondent No 3 (Lodha Committee) have the effect of compromising the standards in medical education and training in India and shall have an adverse influence on the career interests of students undertaking the undergraduate and post-graduate courses in the field of health and medicine,” the petition alleged.

The petition said that MCI had processed several proposals from medical colleges – varying from establishment of new medical colleges to renewal of permissions to increase in seats to grant of recognition to medicine courses for 2016-17.

Of this around 150 proposals for new undergraduate courses and 118 for super-specialty courses for 2016-17 were disapproved by the ministry on the recommendations of MCI after independent verifications had found several deficiencies in the colleges.

On June 13, the petition said, the Oversight Committee intervened to give these colleges a fresh opportunity to furnish their compliances by June 22 to deficiencies pointed out by the MCI.

The MCI was then asked to conduct inspections and send reports of each of these colleges to the ministry before July 20. The MCI did so, reiterating its disapproval.

The petition alleged that the Committee, at this juncture, without conducting any fresh inspection, proceeded to approve the applications of these medical colleges.

Further, the petition alleged, the Committee, on August 12 and 13, approved a “majority” of applications by medical colleges seeking renewal of permission for 2016-17, grant of recognition for undergraduate courses and increase in intake for 2016-17.

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