Thursday, 25 August 2016
Wednesday, 4 November 2015
LETTER TO HON. UNION MINISTER OF HEALTH AND FAMILY WELFARE,
GOVERNMENT OF INDIA.
Shri. Jagat Prasad Naddaji
Hon’ble Union Minister of Health and Family Welfare
RE: Letter dated 27/10/2015 issued by Indian Council of Medical Research (ICMR) for restricting the treatment of foreign nationals for surrogacy.
The undersigned are the office of bearers of the society registered under the name and style of INSTAR. The society comprises for various IVF specialist Doctors, lawyers and ART banks (representative of surrogates). The doctors of the society have received a letter dated 27/10/2015 from ICMR bearing No. 5/10/8/2008-RHN late in the evening to convey the information as per the stand of the Department of Health Research, Ministry of Health and Family Welfare, Government of India, that foreigners shall not be entertained for availing surrogacy services in India. The letter is served through email under the signatures of Dr. R.S Sharma.
Sir, with due respect, it came as utter shock and surprise not only to the entire medical fraternity working in this field but is against the spirit of democracy and rule of law. In our due submission, it is pertinent to mention that the ART Bill, 2014 draft is still in consultative stage as the same was made public on 30th September, 2015 and the general public as well the stake holders are given a period of 45 days to make their comments / objections and suggestions (if any). The said time frame has not got over and the BILL is yet to be presented and passed in the Parliament.
It is further submitted that there is a PUBLIC INTEREST LITIGATION (PIL) pending before the Supreme Court of India bearing no. 95/2015 and titled as ‘Jay Shree Wad Versus Union of India’ wherein the Supreme Court after hearing the petitioner sought certain explanations from Union of India through Solicitor General of India and asked to revert back with reply/explanation of Union of India on 28th October, 2015. And an evening before the said date of 28th October, 2015 the doctors get the letter from ICMR about the decisions taken already about matters in the proposed ART BILL.
Further, the Supreme Court of India was in a state of awe to know that the decisions are already taken in a matter that is sub- judice and sought affidavit (s) from competent authorities . The process of to make law on the Assisted Reproductive Technology (ART) has got defeated. If the outcome is already decided, what is the purpose of seeking comments from public. It has made democracy a mockery where it means that no matter what the patients and people of India and patients may say and feel , the outcome is pre determined. Democracy of India is For the people, of the people and by the people and our law making processes are established. Interference in the matter which is sub-judice losses the faith in the good governance of the country.
Also, to mention to the Hon’ble Minister that before the Supreme Court would know, the media knows it all. Even the doctors were not aware but media knew word by word as to what was decided by the Government of India.
Sir, family is the primary unit of society. This matter directly effects each and every individual in one way or the other. Such, a matter certainly cannot be pre decided when the BILL is already in progress and the Honourable Supreme Court has taken a note of the matter.
Sir, there are also matter pertaining to the ambiguity of the letter and the status of the communication in the light that Supreme Court refused to take on record any such decision till the affidavits are filed and it is not examined. The next date of hearing before the Hon’ble Supreme Court is 24th November, 2015.
Sir, we request your esteemed office to look into the matter and to kindly take the necessary steps for corrective measures so that there is no interference in the process of law making process of the Parliament of India.
Wednesday, 21 October 2015
LETTER TO THE TIMES OF INDIA: FOR NEWS CORRECTION
The undersigned are the office bearers of the society registered under the name and style of 'Indian Society For Third Party Assisted Reproduction'. The society consists of doctors, lawyers, ART banks ( representatives of surrogates), embryologists as members and from past two years have been actively involved in spreading awareness in the field of ART Procedures including surrogacy.
We have done several events including 'Surrogacy walk' to educate people and spread awareness of the rights of surrogates and how it helps to builds families and is thus not a shameful act and in no way can be equated with prostitution and vices of such nature. we have also done 'Nukkad Natak' to make society sensitive towards the concerns of infertile couple and surrogates.
Times of India holds and esteemed position amongst the reputed national dailies of India. however, it has come as a surprise when on 15th October, 2015 , it was reported that Supreme Court Suggested Ban on commercial surrogacy. We wish to put some light that the said Public Interest Litigation tilted as 'Mrs. Jayashree Wad , Advocate and Union of India & ors " is part heard only. The Supreme Court has so far heard only the petitioner and put across the major contentions raised by the petitioner to the Government of India and other respondents/ stakeholders to reply/ comment. thus , in no way it is that Supreme Court has suggested a ban so far.
We are hereby attaching the order dated 14th October, 2015 for you kind perusal and understanding and expect your esteemed News paper to run a correction news regarding the same. It goes without saying that TOI carries with itself the duty of responsible journalism as such incorrect news can mislead many and may result in interfering with the natural course of justice as this matter is sub-judice and any incorrect statement could tantamount to media trial and thus, affecting the rights of the parties involved.
We look forward for a correction from your goodself before the next date of hearing i.e., 28th october, 2015.
ITEM NO.101(PH) COURT NO.8 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 8714/2010
(With appln.(s) for permission to file additional documents and
UNION OF INDIA & ANR.
JAN BALAZ & ORS.
W.P.(C) No. 95/2015Respondent(s)
appln.(s) for stay and Office Report)
Date : 14/10/2015 These matters were called on for hearing today.
HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE N.V. RAMANA
For Appellant(s) Mr. Ranjit Kumar,SG in CA No.8714/10 & Mr. K.Radhakrishnan,Sr.Adv.RR in WP 95/15 Mr. S. Wasim A.Qadri,Adv.
In WP(C) 95/15 (Signature invalid, data error) Signed by Madhu Bala <firstname.lastname@example.org> Time: 2015.10.14 15:23:23 +05'30' Reason:
Mr. S.S. Rawat,Adv.
Mr. Zaid Ali,Adv.
Ms. Meenakshi Grover,Adv.
Ms. Gargi Khanna,Adv.
Ms. Wasim Qadri,Adv.
Mr. D.S. Mahra,Adv.
Ms. Sushma Suri,Adv.
Mr. B.K. Prasad,Adv.
Mr. Ajay Sharma,Adv.
Mr. Ajay Kumar Singh,Adv.
Ms. Swarupma Chaturvedi,Adv.
Mr. Shekhar Naphade,Sr.Adv.
Mr. Ashish Wad,Adv.
Ms. Subhangi Tuli,Adv.
Ms. Kanika Baweja,Adv.
Mr. Sangram Singh Bhosle,Adv.
Ms. Paromita Majumdar,Adv.
Ms. Tamali Wad,Adv.
Ms. Kamini Jaiswal,Adv.
2. Mr. Nikhil Goel,Adv.
Ms. Naveen Goel,Adv.
Mr. Marsook Bafaki,Adv.
Ms. Hemantika Wahi,Adv.
UPON hearing the counsel the Court made the following O R D E R
We have heard the learned counsels for the parties at length as well as Mr. Ranjit Kumar, learned Solicitor
General for India. Pursuant to the hearing that has taken place on the previous dates, the learned counsels for the parties have offered their views on the issues that confronts the Court in the present proceeding. The said issues are enumerated hereinunder:
“1. Whether in commercial surrogacy the surrogate mother is the only mother of surrogate child? The Petitioner raises this issue in view of the pain and suffering the mother undergoes for 9 months and the risk along with all the psychological and emotional problems.
2. Whether a lady who donates her egg in connection with a commercial surrogacy mother can
be said to be mother?
3. Whether both “surrogate mother” and “geneticmother” (who has donated the egg) can both be said
to be mother of the surrogate child.
4. Whether commercial surrogacy involved sale of a child in view of the fact that surrogatemother relinquishes her parental rights for money?
5. Whether commercial surrogacy amounts to renting of a womb?
6. Whether commercial surrogacy is immoral and is opposed to public policy and therefore void u/s 23 of the Contract Act.
7. Whether commercial surrogacy as practiced in India amounts to economic and psychological exploitation of surrogate mother?
8. Whether commercial surrogacy is inconsistent with the dignity of Indian womanhood and therefore violative of Article 21 of Constitution?
9. Whether commercial surrogacy involves trafficking in human beings as it involves sale of a surrogate child, relinquishment of the surrogate's parental rights for money and involves rent of womb thus violating Article 23 of the Constitution.
10. Whether commercial surrogacy should be prohibited?
11. Whether import of human embryo amounts to commoditization of human life and thus violates article 21? Whether notification dated 2.12.2013 of the GOI issued under S.5 of the Foreign Trade (Development & Regulation) Act is violative of Articles 21 & 23?
13. Whether human rights of a surrogate child born out of commercial surrogate are violated and as such child would face psychological & emotional problems.
14. Legal system does not seem to have answer to the following questions:
(a) What happens if surrogate dies during child birth?
(b) What can surrogate do if commissioning couple refuse to take child on the ground that it is abnormal of physically/mentally challenged.
(c) Case when surrogate refuses to hand over child.
(d) remuneration of surrogate.
(e) Who will bear the medical bills if surrogate falls ill.
(f) What happens to unused eggs or embryos and who supervises their fate.
(g) Should surrogacy arrangements be disclosed to child. If so, when?”
The learned Solicitor General who was not available on the previous dates of hearing is in Court today and has submitted that the proposed Bill i.e the Surrogacy (Regulation) Bill, 2014 is undergoing the consultative process at present and he anticipates a period of three months for the process to be over. Thereafter, according to the learned Solicitor General, the matter will be placed before the Cabinet and finally before the Parliament.
Our attention has also been drawn to a Notification dated 2nd December, 2013 on the subject of policy for import of human embryo. Shri Naphade, learned senior counsel for the petitioner has urged that suitable judicial intervention ought to be made in respect of the aforesaid Notification at this stage.
Shri Ranjit Kumar, Learned Solicitor General submits that in the light of the issues which have been highlighted in the present order and the provisions of the Bill in question, he may be given some time to obtain necessary instructions both with regard to the Bill in question, particularly, the scope and ambit thereof in the light of the issues identified and also with regard to the Notification dated 2nd December, 2013.
Though the Solicitor General, perhaps, in view of the issues involved had prayed for a short adjournment, we
are of the view that the Union of India should be given a large period of time to consider the matter in its entirety including the necessity of a re-look into the Notification dated 2nd December, 2013 and revert to this Court after the Dussehra Holidays i.e. on 28th October, 2015.
List the matters accordingly.
(MADHU BALA) (ASHA SONI)
COURT MASTER COURT MASTER