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IVF Children in India/public general petition/appeal to government of india/2012-13
Date : Kolkata, 9 October 2012
1) To The Hon'ble President of India Rashtrapati Bhawan New Delhi- 110001
2) To Hon'ble Mr. Justice Altamas Kabir The Chief Justice of India Supreme Court of India, Tilak Marg, New Delhi-110 001
3) To The Hon’ble Prime Minister of India North Block , Raisina Hill, New Delhi-110001 4) To The Secretary to the President of India Rastrapati Bhawan New Delhi- 110001 5) To The Joint Secretary to the President of India Rastrapati Bhawan New Delhi- 110001
6) To The Joint Secretary-cum-Social Secretary to the President of India Rashtrapati Bhawan New Delhi- 110001 7) To Smt. Meira Kumar The Speaker of Parliament of India
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19, Parliament House, New Delhi - 110001 8) To The Hon'ble Minister for Social Justice & Empowerment R.No.201 'C' Wing, Shastri Bhawan, New Delhi
9) To The Joint Secretary (SD and Vigilance), Ministry of Social Justice & Empowerment, Room No. 610, 'A' Wing, Shastri Bhawan, New Delhi - 110001 (India). 10) To The Hon'ble Minister for The Ministry of Child Development and Women's Affairs (MCDWA) Shastri Bhawan New Delhi -110001 11) To Madam Anju Bhalla Director, CSWB, Ministry of Women and Child Development Shastri Bhawan New Delhi -110001 12) To The Hon'ble Home Minister Ministry of Home Affairs Government of India New Delhi- 110001 13) To The Home Secretary The Government of India Ministry of HOME Affairs New Delhi- 110001 14) To The Addl. Secretary - AS (Foreigners) The Government of India
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Ministry of HOME Affairs New Delhi - 110001 15) To The JS (Foreigners) The Government of India Ministry of HOME Affairs New Delhi – 110001 16) To The Joint Secretary (AMS) The Government of India Ministry of External Affairs New Delhi- 110001 17) To Mr. S.M. Krishna Hon'ble External Affairs Minister, Ministry of External Affairs SB 172, South Block New Delhi - 110001 18) To Mr. Raghavendra Shastry Hon'ble Advisor to EAM, Ministry of External Affairs SB 170, South Block New Delhi - 110001 19) To Mr.Ranjan Mathai Hon'ble Foreign Secretary, Ministry of External Affairs SB 170, South Block New Delhi - 110001 20) To Madam Suchitra Durai Joint Secretary [Consular], Ministry of External Affairs PT H 20, Patiala House New Delhi - 110001 21) To Mr. Muktesh K. Pardeshi Joint Secretary (PSP) & CPO ,
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Ministry of External Affairs South Block, New Delhi – 110001 22) To Mr. R. K. Perindia Under Secretary , CPV Division Ministry of External Affairs South Block New Delhi- 110001 23) To Dr. Shantha Sinha, Hon'ble Chairperson National Commission for Protection of Child Rights (NCPCR) 36, Janpath New Delhi -110001 24) To Mr. Radhey Shyam Under Secretary (CW-1) Ministry of Women & Child Development Child Welfare- 1 Section Shastri Bhawan New Delhi- 110001 25) To The Hon’ble Union Minister Ministry of Women & Child Development MINISTRY OF HEALTH & FAMILY WELFARE Room no : 348-A Govt. of India Nirman Bhavan New Delhi -110108 26) To The SECRETARY (DEPARTMENT OF HEALTH RESEARCH) & DIRECTOR GENERAL Indian Council of Medical Research Post Box No. 4911, Ansari Nagar New Delhi – 110 029 27) To Mr. Basant Kumar Gupta Addl. Secretary (CPV),
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Ministry of External Affairs South Block, New Delhi - 110001
We, INDIA's SMILE want to bring to your attention the plight of in vitro fertilisation (IVF) children. The case in point here is about two IVF children, Vedant and Medhavi, born in India. Both children are Indian citizens. The two siblings have never met. As per letter No. T.4113/107/2012 dated 5/10/2012 from Ministry of External Affairs (MEA), quote “Mission is requested to take up the matter with the concerned authorities in the U.S. for early repatriation to India of Vedant”. The only known biological parent of Vedant and Medhavi is Maulik Arunkumar Modi residing in Vadodara, Gujarat, India. Mr. Maulik Modi has filed an alert with US Government Children Passport Issuance Alert Programme (CPIAP) dated 31 December, 2012 which prevents the US Government to issue Vedant Maulik Modi a US Passport without notifying the biological parent, Maulik Modi. The receipt number is 898483 from the Prevention Branch, Office of Children’s Issues, U.S. Department of State. Prayer We kindly request you to personally look into this matter to give the innocent children, Vedant and Medhavi, the right to grow up together as a brother and sister. Please help us by uniting the two innocent siblings who have done no wrong. We INDIA's SMILE urge you to look into the following suggestions in the best interest of the innocent IVF child. We need laws from a child’s perspective and not based on a parent’s gender. There is a proposed Assisted Reproductive Technology (ART) surrogacy Bill of 2010 still in review mode. A draft of the same can be found here (Link is : http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf). We are writing to you to include the suggestions listed in the attachment to the draft bill. We request rules and regulations, new laws to show compassion on behalf of the innocent IVF children who do not become helpless victims.
Become the change you want to see in the world. – Gandhiji What is the status of IVF in India – a political issue, a social issue, a child rights issue? As per a news article, (Link is : http://www.telegraph.co.uk/health/healthnews/9292343/Revealed-how-more-and-moreBritons-are-paying-Indian-women-to-become-surrogate-mothers.html) there are several unregulated IVF clinics operating in India. Some excerpts from this article: a) Indian authorities now believe the industry is worth as much as £1.5 billion each year, is growing rapidly, and say it needs regulating urgently;
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b) Dr Radhey Sharma, who was commissioned by the Indian government has called the IVF culture as “baby factories”. “Nobody in India actually knows for sure how many babies are born through these commercial enterprises and how many places are involved,” he said. c) Dr Sharma said: “Nobody could have envisaged the sharp increase in Indian surrogacy for foreigners and we accept this will not slow down, but in fact get more popular.” d) One clinic in New Delhi, The Birthplace of Joy, said that their patients were “100 per cent foreign” and estimated that as many as half of them were homosexual couples wanting to become parents. Whose name will go on birth certificate if both parents are male? There are IVF clinics who openly advertise surrogacy for gays. Do we have laws to support the reality in the best interest of the IVF child? Is this permissible by law? And how will the innocent IVF children get legal birth documents as per prevailing Indian laws? The majority of the gays are foreigners and come to India because IVF/surrogacy may be illegal in their resident countries. Is it legal in India? India is in a unique position to become a leader in surrogacy laws in the world. Have the laws kept pace with technology like IVF? Are IVF child rights included in “Universal Human Rights”?
The primary objective of this article is to establish equal child rights. Unfortunately, most places in the world impose the parents’ rights onto the child. If all children are born equal then why don’t laws support that? Technology is changing and we cannot have archaic 20th century laws. We need to have laws from a child’s perspective and not based on parent’s gender. Today, as countries like US who allow adoption by Lesbians and Gays or countries like UK considering (Link is:: U.K. may allow IVF for older women, samesex couples :: http://usatoday30.usatoday.com/news/health/story/2012-0522/Britain-fertility-guidelinesIVF/55132790/1?utm_source=dlvr.it&utm_medium=twitter&dlvrit=205764 ) to allow in vitro fertilization (IVF) (Link is :http://en.wikipedia.org/wiki/IVF ) /surrogacy by Gays or Lesbians or countries like India, (Link is : India's third gender gets own identity in voter rolls : http://edition.cnn.com/2009/WORLD/asiapcf/11/12/india.gender.voting/inde x.html?iref=allsearch ) Nepal (Link is : Nepal census recognizes 'third gender' : http://articles.cnn.com/2011-05-31/world/nepal.census.gender_1_genderidentity-citizenship-first-openly-gayPage 6 of 13
lawmaker?_s=PM:WORLD )and Australia (Link is: Third sex becomes official: Australian passports now have three gender options - male, female and x : http://www.dailymail.co.uk/news/article-2037662/Third-sex-officialAustralian-passports-gender-options--male-female-x.html ) among others who allow legal recognition of third gender thus giving them civil rights, we hope that the leaders of the world are thinking ahead and ensuring equal rights for children on their own without imposition of their parent’s gender. India has several fertility centers providing IVF/surrogacy services and is also a popular medical tourism destination for IVF/surrogacy among other medical treatments. We understand this is new territory and only honest discussion and truth will bring change. We are more interested in a solution than anything else. We have absolute confidence that the changes we are asking for is a question of IF and not WHEN. The question to answer is an IVF child an “asset” of the people who paid or has individual human rights?
If IVF Child
Abandoned Abandoned Natural Child's Needs
Equal rights and laws Needs Love, Trust, And Care Needs Food, Home, Clothes, Toys, etc. Long-term needs in development, education, stability, family Family and friends help left-behind parent to raise the child Left-behind parent may change career paths to care for the child resulting in added financial burden Severe trauma when first discovered abandonment
No Yes Yes Yes Yes Yes
Yes Yes Yes Yes Yes Yes
What are the different scenarios in an IVF? And who are the LEGAL parents?
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1 2 3 4 5 6 7 8 Legend: 1) FS = Father’s Sperm (Biological father) 2) ME = Mother’s Egg (Biological mother) 3) MW = Mother’s Womb 4) AS = Anonymous sperm donor 5) AE = Anonymous egg donor 6) SW = Surrogate’s womb 7) IF = Intended Father 8) IM = Intended Mother Each case needs to be analyzed and understood to assign parentage. More importantly, what are the IVF child’s rights? For thousands of years, a child comes from a woman which is still true. The social acceptance and thus the laws have reflected this where the new-born child “inherits” the laws of a “mother” and the specific language used in laws is “child born to a female or mother”. The issue becomes as the cases pointed out above, what happens when the intended father is the only parent? What rights does the child get? Add the complexity of medical tourism and international surrogacy and a host of new issues arise. We will discuss that later in the document.
SW IF IM
?? ?? ?? ?? ?? ?? ?? ?? ?? ?? ?? ?? ?? ?? ?? ??
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1) Prevailing laws - Since the existence of humans for over 10000 years, it is a built-in assumption that children come from mothers/females. This “built-in” assumption has been used to write prevailing laws. With the advent of infertility technological advancements, like IVF, today it is possible for a father to have children as the only known biological parent. Have the laws kept pace? 2) Social Acceptance - Traditionally, mothers are the natural caregivers for children. There is a change going on. Gay fathers, IVF fathers, straight fathers are taking on more responsibility at home including being the primary care providers for their children. With all due respect to all the great mothers, these fathers love their child NO LESS and would do anything for their child like any passionate parent. Is the society ready to accept that? Further, is the society ready to change the laws to reflect its acceptance? 3) Lack of Laws - Due to the “built-in” assumptions and lack of social acceptance, the innocent children of IVF fathers, gay fathers, straight fathers are unduly treated by the unequal laws against their biological parent, a male. Sometimes in case of IVF fathers, their only known biological parent.
What Can We Do About Equal Child Rights?
In a recent case, (Link is :Childless couple allowed to keep babies born through Indian surrogate :: http://www.telegraph.co.uk/news/newstopics/lawreports/8938514/Childless -couple-allowed-to-keep-babies-born-through-Indian-surrogate.html ) a British childless couple was allowed to keep IVF children born through Indian commercial surrogate even though they technically broke the law. What if tomorrow a different court in Britain rules in favour of existing British laws and thus denying the parents to keep the IVF children and/or entry to Britain. Who will raise the IVF children? What are the innocent IVF children rights? As per a recent news article, ( Link is :Revealed: how more and more Britons are paying Indian women to become surrogate mothers :http://www.telegraph.co.uk/health/healthnews/9292343/Revealed-howmore-and-more-Britons-are-paying-Indian-women-to-become-surrogatemothers.html ) Dr. Radhey Sharma who has been commissioned by the Indian government has made several quotes identifying the “baby factories” in India. Here are some statistics taken from this article. 1) Dr. Radhey Sharma mentioned there are about 600 IVF clinics in India although there maybe 400 more IVF clinics operating unregulated in India. 2) The article claims there were at least 2000 IVF births in India in 2011 out of which at least a 1000 were to British citizens. There may be other IVF babies born to international parents. Any of these cases can become an immigration nightmare for the innocent IVF child and who is protecting their rights? 3) A report in a respected Indian newspaper earlier this year claimed the city of Hyderabad has at least 250 clinics that claim to offer IVF but only 11 of which were voluntarily registered with the authorities. Page 9 of 13
4) One clinic in New Delhi, The Birthplace of Joy, said that their patients were “100 per cent foreign” and estimated that as many as half of them were homosexual couples wanting to become parents. Can gay fathers from US on US green card take the IVF child to the US? Who is responsible for checking the immigration policies of different countries on a case by case basis so that the innocent IVF child is not stranded? The below stated changes are in addition to what is already covered in the proposed draft bill of ART surrogacy of 2010. 1) United Nations Convention on Rights of a Child (UNCRC) - We want all the countries in the world to ratify and accept it. As of this writing, there are only two countries in the world who have NOT ratified or accepted the UNCRC (Link Is: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV11&chapter=4&lang=en) - USA and Somalia. 2) Change - In an IVF case, explicitly define the parent(s) responsible for upbringing of the IVF child before any treatment is initiated. And if any intended parent breaches the contract, there should be severe legal consequences just like a father abandoning a pregnancy or a child at birth. In an IVF case, it is possible for a child to be born without intended parent(s) being around. 3) Left-behind IVF child law - The needs of an IVF child are NO DIFFERENT than a natural born child. An IVF child also needs love, care, clothes, food, shelter, books, toys, education, and so on. If an intended parent abandons an IVF pregnancy or IVF child at birth, they should be held accountable and responsible because the IVF child’s needs are EQUAL. 4) Debate on Parentage – Define clearly on parentage of the child including issuance of legal documents like birth certificate. A valid birth certificate is a fundamental right of the CHILD and not the parents. It is a document that the child carries for life including adulthood. As the technology evolves, (Link Is : "Three-Parent IVF" Up For Public
Consultation In Britain : http://www.medicalnewstoday.com/articles/250343.php)
it is possible to have a “three parent IVF child” where the DNA is from three parents. What will be the legal impact of this? 5) Legal recourse for lapses – In cases where the fertility clinic lapses there should be a legal recourse. For example, switching sperm samples. It is traumatic enough to deal with infertility and the trauma only continues when there are serious lapses like switching samples of the biological parent. 6) Compulsory Education of the entire ecosystem - Depending on each IVF case, the ecosystem could include anonymous egg donor, anonymous sperm donor, surrogate, intended father, intended mother and the CHILD. It is important to educate each person depending on the case about IVF and its effects. 7) Documentation and Recordkeeping – All documents and identification of any egg donor, sperm donor, surrogate should be kept. In case the child wants the information as an adult when they grow up. This does get into the bioethics of is there such a thing as “anonymous” egg donor or sperm donor. The child has a right to know their genes as it impacts their health and identity.
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8) International Impact – Any of the persons in the ecosystem could be a non-Indian or a non-resident Indian. There should be a provision in case of international IVF/surrogacy to protect the best interest of the child in case the IVF/surrogacy is abandoned. Maybe having a refundable deposit if the intended parent(s) shows up at birth or if the child is abandoned, the deposit can be used for the welfare of the IVF child. 9) Family Laws – If an intended parent files for divorce during an IVF pregnancy, it should be compulsory to mention the IVF pregnancy as per the IVF contract signed in India. This ensures legal recognition of the IVF child and that their rights are protected. 10) Public Service – Just like there are public service announcements through radio advertisements, etc. to educate and spread awareness about adoption and its legalities, there should be similar public service campaigns for IVF families.
The goal is to have equal and same rights for an IVF child as a natural born child because their needs to grow and flourish are identical. We want to explore space and get to Mars. Humans have already established we can land on Mars but no humans yet. We want it to be safe since humans are involved. Don’t we want our innocent children to be safe on earth? Or are we forgetting to use science and sensitivity in our zeal to deal with the traumatic situation of infertility in an adult? Subject of child rights is very personal and very emotional. Just ask any parent – mother or father. They also live on the same planet and let us build bridges rather than walls. Ask any pregnant mother and you will get the truth about child rights. What is so special about IVF pregnancy? 1) First, IVF is NOT a baby making machine. An IVF child is just as much a human as anyone else and should have equal rights like a natural born child. 2) Second, an IVF pregnancy requires co-ordination, efforts, assistance, finances, and above all blessings from multiple people and agencies. With current success ratio of about 33% for IVF pregnancies resulting in children, it is a very emotional, traumatic, anxious time for an IVF family. 3) Third, a person becomes an IVF parent because of infertility issues which in itself is very traumatic to deal with. There should be no added burden on an IVF family with UNEQUAL LAWS for the IVF child and family.
We urge you to investigate and thoroughly look into the IVF scenarios in the best interest of the innocent IVF child. We need laws from a child’s perspective and not based on a parent’s gender. We request rules and regulations and new laws to show compassion on behalf of the innocent IVF children who do not become helpless victims.
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Thanking you, Yours faithfully
RAJEEV SARKAR SECRETARY TRUSTEE INDIA's SMILE EA-6/2 DESH BANDHU NAGAR BAGUIATI, OPP: D. B. NAGAR POST OFFICE KOLKATA 700059. WEST BENGAL Enclosures : Newspaper cuttings
COPY TO :
THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) BILL – 2010 Drafting Committee
1) Dr. Rajeev Dhavan Sr. Advocate Supreme Court of India Director and Ex-Officio Trustee Public Interest Legal Support and Research Centre New Delhi 110 065 2) Sh. Bhairav Acharya Public Interest Legal Support and Research Centre New Delhi 110 065 3) Ms. Aparna Ray Public Interest Legal Support and Research Centre New Delhi 110 065 4) Dr. Manish Banker Director Pulse Women's Hospital 5) Dr. Kiran Ambwani Deputy Commissioner (FP), Deptt. Of Family Welfare, Ministry of Health & Family Welfare, Govt. of India New Delhi-110 108
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6) Mr. J.K. Trikha Dy. Secretary Department of Family Welfare Ministry of Health & Family Welfare, Govt of India New Delhi – 110 011 7) Dr. Pushpa M Bhargava Anveshna, 8) Dr. Kamini Rao 9) Dr. Jayant G. Mehta Instt. Of Reproductive Medicine and Women’s Health Care 10) Dr. Gautam Allahabadia Medical Director 11) Dr. Keerti Malaviya, Assistant Commissioner (FP), Department of Family Welfare, Ministry of Health and Family Welfare, Govt. of India New Delhi – 110 011 12 ) Member Secretary Dr. R. S. Sharma Deputy Director General (SG) Division of Reproductive Health and Nutrition Indian Council of Medical Research New Delhi – 110 029 13) Mr. Maulik Arunkumar Modi
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