Medico Legal


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                                            Surrogacy Laws in India

Surrogacy Laws in India are going through phase of transition, with Government of India working on creation of Legislation to regulate Surrogacy and Assisted Reproductive Technologies (ART) clinics in India. Presently National Guidelines for Accreditation, Supervision & Regulation of 
ART Clinics in India, framed by ICMR ( Indian Council for Medical Research) are source of legal elements related to Surrogacy. Written Surrogacy Agreement in accordance to these ICMR guidelines is must for every commissioning couple expecting child through Surrogacy. In accordance to ICMR Guidelines, Law firms and semen banks only shall maintain information on possible oocytes donors and surrogate mothers & are authorized to provide Surrogate mothers. 

Union of India is taking steps to position India as a legally risk-free destination when it comes to international surrogacy arrangements. The Indian Government is implementing legal mechanisms to ensure that the child born out of surrogacy arrangement in India would have a safe passage back home. Though such measures have affected few nationals, it could be considered legally safe in the long run for surrogacy in India.                                                  
Ministry of Home Affairs (MHA) has issued detailed guidelines for issue of Indian VISA for the purpose of Surrogacy.

As per these guidelines, the appropriate visa category is medical visa and not Tourist visa. Indian assisted Reproductive Technologies (ART) clinics are prohibited from accepting samples without the presence of the couples in India with proper medical visa. In addition action could be initiated against such ART clinics in the event they admit any cases for surrogacy without ensuring the fulfilment of the all conditions and submission of undertakings as stipulated by Ministry of Home Affairs.


How Techno Legals LLP can assist couples:
 
Techno Legals LLP has team of experienced attorneys to assist couples who intend to make India as their destination in quest to have child through Surrogate Mothers. We provide following services to commissioning couples:
 
Immigration and Visa Advice
Our team of professional immigration attorneys, assist couples procure medical visa for the purpose of Surrogacy. For grant of such medical visa, guidelines framed by Ministry of Home Affairs (MHA) have to be complied.  We counsel, advice & assist couples to understand requirements to procure medical visa for Surrogacy in India, assist couples in procuring relevant documents, compliance with other local laws and check that clinic chosen by commissioning couples is registered & recognized by ICMR ( Indian Council for Medical Research). After the birth of child, we assist commissioning couples, to procure all legal documents including birth
 

Drafting Surrogacy Agreements
Our team of professional attorneys assist couples by drafting Surrogacy Agreements between the Surrogate and couple, in accordance to guidelines framed by ICMR ( Indian Council for Medical Research). Such agreement covers all aspects relating to relationship between surrogate mother and couple including financials, insurance requirements, financial aid and more importantly right of commissioning couple over the child.  We also assist couples in drafting formal agreement with the  prospective clinic, so that the requirements and expectations of couple from clinic are governed by a written Agreement.
 

Choice of Surrogate Mother
In accordance to 2005, ICMR Guidelines, Law firms and semen banks only shall maintain information on possible oocytes donors and surrogate mothers and are  authorized to provide Surrogate mothers. Techno Legals LLP can help you identify a prospective Surrogate mother for your Prospective child. We act as a bridge between Surrogate mother and commissioning couples and secure interest of commissioning couples as well as prospective Surrogate mother in accordance to law,  and guidelines framed by ICMR.
In the event commissioning couple has its own choice of Surrogate mother, we act as legal representative of commissioning couple, to secure the interest of couple and make sure that Surrogate chosen by commissioning couples is competent to act as surrogate and sign Surrogacy Agreement. We further on behalf of commissioning couples, make sure that Surrogate has requisite consent of her family. We further counsel Surrogate and her immediate family against any other legal implications which may arise out of surrogacy Agreement so that interest of couples are secured during the complete cycle of Surrogate motherhood.
 

Choice of Clinic
We on behalf of couples identify the right clinic for couples which is registered and recognized by ICMR, in accordance to ICMR guidelines. In a foreign country it becomes difficult for couples to identify right clinic which is authorized in accordance with law, which has proven track record successful IVF & other ART  procedures. We have tied up with prestigious clinics which have excellent track record.
We at Techno Legals LLP believe that commissioning couples should be free to compare services and commitments offered by ART clinics. In the event couple intends to choose clinic & doctor of its own choice, we on behalf of couple, make inquires about recognition of clinic and its past track record in satisfactory service  delivery. We on behalf of couple make agreement between clinic and couple so as to safeguard rights of couple and delivery of whatever committed.
   

Exit Documents & other Documentation
Post birth of child, we assist couples in procurement of Birth Certificates / Apostille, required to exit visa of child. We draft requisite affidavits, declarations. We assist couples with FRO documentation submission requirements, and procure necessary clearance from FRO, essential for exit visa. We further assist couples in to file all other forms related with citizenship and passport (including collection of documents, administrative work & documents delivery).

 
Other Legal Services
We at Techno Legals LLP from our past experience know that in case of Surrogacy, legal implications may arise, due to some deficiency in service by clinic, or some issue created by Surrogate or her immediate family. We take care of all such eventualities, and assist couples as need arises. We procure appropriate orders     including injunction orders from local courts in favour of couples. From our past experience we know that legal implications may arise during documentation process for exit visa and/or home country of couple not recognizing the child, and hence decline to issue passport to child. We take care of all such situation and assist couples, in liaison with government officials and embassies of home country of couples. In the event any order from the courts situated in home country is required our attorneys are willing to appear and procure appropriate orders in favour of couple from their home country.



How Techno Legals LLP can assist ART Clinics:



Organ Transplant 

The transplantation of an organ from one body to another is known as the organ transplant. The person who gives the organ is called the donor while the one who receives is called the recipient. Organ transplant is done to replace the recipient’s damaged organ with the working organ of the donor so that the recipient could function normally.

Legally, organ donation can take place from living, genetically-related individuals; from living, unrelated individuals in special circumstances where no unauthorized payment is made to the donor; or from cadavers. Live donation of a single kidney was the first done in 1954, but live donation of parts of other organs is a relatively recent innovation in the 1990s.
Some of the organs that are mainly donated are kidney, Liver, heart, lung, pancreas, small bowel and sometimes skin along with the other things. In the earlier times illegal organ trafficking is a major problem because of corrupt and inefficient health care system.  For stopping illegal organ transplant, the Government of India had come up with certain laws in 1994 that made organ sale a crime. The Human Organs Transplant Act, 1994 laid down certain rules and regulations that were to be followed while conducting organ transplant.

According to Organ Transplant Laws, no money exchange between the donor and the recipient was allowed. According to the 1994 Act, the unrelated donor had to file an affidavit in the court of a magistrate stating that the organ is being donated out of affection. Later, the donor had to undergo a few tests before the transplant. The Authorization Committee checked all the supplied documents.

The main aims of the act:

Regulating removal, storage and transplantation of human organs for therapeutic purposes.
Accepting brain death and making it possible to use these patients as potential organ donors.
Preventing commercial dealings of organs.
After this deal, the concept of brain death was legalized for the first time in India.

The Transplantation of Human Organs (Amendment) Bill, 2009

The Bill passed in 2009, made certain changes and alterations in the previous laws. This Amendment Bill offers regulation of the transplantation of human tissue along with organ transplant. It was made necessary that the medical staff looking after the patient to put forward a request to the relatives of the brain dead person form donation of organs. It was necessary that every organ donation case should go to the Authorisation Committee first.

Highlights

The bill made amendments in the Transplantation of Human Organs Act, 1994.
Along with human organs, the Bill also regularized the transplantation of tissues of the human body.
The act permitted donations from living persons who are near relatives. This act also added grandparents and grandchildren to the list of “near relative”.
The doctor had to inform the patient or his relatives about the possibility of organ donation and made sure that they given their consent to it.
If  the organ of the donor and the recipient does not match medically, the bill gave a permission to swap organs with another pair of such a person.
The bill made an increase in the penalty for illegal removal of human organs and for receiving or making payment for a human organ.
Key Issues and Analysis

The bill became strict in curbing commercial human organ trade but made organ availability easier for transplantation for needy patients.
The donor as well as the recipient would get penalized in case there is any involvement of money in the transplant.
If organ donor is not a “near relative”, he required prior permission from the State Authorisation Committee.
The bill offered for the establishment of Advisory Committees.

The Transplantation of Human Organs (Amendment) Bill,2013

The state health department, a few months back, came- up with a composite set of guidelines for dealing with with deceitful practices and for countering illegal organ transplant. Now along with an authorization committee, there will be a ‘Verification Committee’ as well in every block for the verification of the details that are offered by the donor and recipient. It will also look after all the other legalities of the matter of organ transplant.

Going for an organ donation?

There are mainly 2 types of donations –

Live donation – Where organ transplant takes place between the patient and his close friend or a family member

Cadaveric donation- Where a person pledges his organs for harvesting and donated after his death.

Keep the following in mind, if you are donating to your own family member:

Leaving other states apart, if you live in Maharashtra and want to donate an organ to your family member, you will need an NOC from the government.
Before the donation starts, one has to undergo a complete health check- up along with a blood cross matching test.
Cadaver donation means that a person takes a pledge to donate his organs after death. Here the organs of a person are harvested after the person is declared brain dead. In case of cadaver donation keep the following in mind:

If you want to donate an organ, you need to register with any NGO who will arrange an organ donation card for you.
It is important that you should inform your family about your wish so that after your death they give a permission to the doctor for organ harvesting.
As per the rules, once the donation is done, the body has to be returned to the family members in an aesthetic manner, covering it properly.
After being declared brain dead or after death, the organs are tested fir their usability.
If once suffers from kidney disease, liver failure or heart conditions etc., organs cannot be used.
One can donate his skin, eyes, liver, lungs, kidneys, and sometimes intestines.

Whether you are a Indian Citizen and Foreign national our team of Legal Professionals Counsel and assist you with all your paperwork to help you save life of your loved one in that hour of need. 

Medical Treatment

Want to come to India for your medical treatment but totally dependent on travel / medical agents or hospital desk, we know your needs and can assist you when you require a representative to interact with hospitals and take care of your Legal and Documentation work and stay stress free and focus on your treatment.


Medical Negligence 

You have been a victim of medical negligence  on part of the hospital -medical professional but feel helpless even after suffering all trauma and financial cum bodily loss, we can support, advise and represent you in appropriate forums to help you get your rightful and justice.