The Punjab and Haryana high court has instructed the central government to carry steps for the introduction of the shared parenting concept in marriage conflicts at the level of initial stages when the matter reaches before police and trial courts.
What are the laws present today
Two laws specify the supervision of children in India. The first is The Hindu Minority and Guardianship Act (HMGA) of 1956, which states that the natural guardian of a Hindu minor boy or unmarried girl shall be the father and mother, provided that custody of a minor who has not completed five years of age shall ordinarily be with the mother. But the HMGA does not contain any independent, legal or procedural mechanism for deciding custody rights or declaring court-appointed guardians.
Therefore, we fall back on the second law, which is colonial in nature. This is the Guardian and Wards Act of 1890 (GWA). This deals with the appointment of a person as a ‘guardian’ to a child, both with respect to the child and property. Child custody, guardianship and visitation issues between parents are determined under the GWA, if a natural parent wants to be declared as an exclusive guardian to his/her own child.
Upon disputes between parents in a petition under the GWA, read with the HMGA, guardianship and custody can be vested with one parent with visitation rights to the other parent. In doing so, the welfare of the minor or “best interests of the child” shall be of paramount consideration.
What are the recommendations for joint parenting?
Recommendations have been made for joint parenting by various committees. The Law Commission of India Report in 2015, on Reforms in Guardianship and Custody Laws in India, proposed joint custody and shared parenting. It opposed the idea of singular child custody with one parent. It made detailed recommendations for amendments in the HMGA and GWA for joint custody and for guidelines for such custody, child support, and visitation arrangements.
What’s in ART, Surrogacy?
Lok Sabha just passed the Assisted Reproductive Technology Regulation Bill, 2020, and The Surrogacy (Regulation) Bill which makes provisions for the safe and ethical practice of assisted reproductive technology (ART) services in the country.
In vitro fertilization (IVF) is a complex series of procedures used to help with fertility or prevent genetic problems and assist with the conception of a child. During IVF , mature eggs are collected (retrieved) from ovaries and fertilized by sperm in a lab.
- It would lead to the creation of a national board to lay down and implement a code of conduct for people working at IVF clinics.
- Determines the minimum standards of physical infrastructure, laboratory, diagnostic equipment, and expert manpower to be employed by ART clinics and banks.
- The bill intends to make genetic testing of the embryo mandatory before implantation for the benefit of the child born through ART.
- It also seeks to streamline the cryo-preservation processes for sperm, oocytes, and embryos. It also proposes to constitute a national registry and registration authority to maintain a central database and assist the national board in its functioning.
- The bill proposes stringent punishment for those “practicing sex selection, sale of human embryos or gametes and running agencies/rackets/organizations for such unlawful practices.
The Surrogacy (Regulation) Bill relates to surrogacy, an infertility treatment, where a third person, a woman, is the surrogate mother. In ART, treatments can be availed by the commissioning couple themselves and it is not always necessary that a third person is involved. Surrogacy is allowed for only Indian married couples. ART procedures are open to married couples, live-in partners, single women, and also foreigners. A 2015 notification prohibits commissioning of surrogacy in India by foreigners or OCI or PIO cardholders, but NRIs holding Indian citizenship can avail surrogacy. Foreigners can visit India under medical tourism to avail ART services.
The Surrogacy (Regulation) Bill
The primary idea behind the bill is to restrict commercial surrogacy, while only authorizing altruistic surrogacy to take place.
Altruistic surrogacy is defined in the bill as surrogacy in which no money or remuneration except medical expenses is provided for the surrogate mother by the couple. Surrogacy, where the selling or buying of a human baby is involved, is called commercial surrogacy and is banned in the country by way of this legislation.
The bill also lays down certain eligibility norms for both the couple opting for surrogacy and the surrogate mother. The couple in question is required to have a “certificate of essentiality” which includes a certificate of proven infertility of one or both persons, a Court order on the parentage and custody of the child born through the surrogate, and insurance cover for the surrogate mother for 16 months including post-partum delivery complications.
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