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INSIGHTS CURRENT EVENTS: 04 OCTOBER 2014

Move to Deny Foreign Nationals Access to Surrogacy Draws Flak

The view among experts looking into the new Assisted Reproductive Technologies (Regulation) Bill 2014 that single parents and foreign nationals should not be allowed to have children through surrogates in India has come in for criticism.

Some experts opine that single men or women can’t be deprived of the right to have children through surrogacy. Any restriction on foreign parent, single or couple, may be questioned as foreigners, irrespective of marital status, are allowed inter-country adoptions under Indian law. Even, the Supreme Court allows religion and gender-free secular adoptions. Even transgenders will have rights. A right to reproductive autonomy as part of Right to Life under Article 21 is available even to foreigners as ‘persons’ and cannot be unreasonably curtailed.

The view to disallow foreign nationals stems from the concern over citizenship rights of children born to Indian surrogate mothers as several countries have banned surrogacy and do not recognise the children born through assisted means as their citizens.

The Supreme Court had asked the government to clarify its stand on the citizenship of children born via an Indian surrogate mother in India, but whose biological mother is a foreign national. A Supreme Court Bench led by Justice Ranjan Gogoi asked: “Under the Constitution, a child born in India from an Indian surrogate mother is entitled to Indian citizenship, but what happens if the biological mother is a foreign citizen and the child applies for citizenship of that country”. The Bench is looking into the larger issue of the need for a “comprehensive legislation” dealing with all the issues and situations, including citizenship of a surrogate child, created by the latest reproductive technology.

There has been an intense debate on the provisions of the ART Bill, with a majority of the stakeholders favouring that only married Indian couples be allowed to hire surrogates. A small section says it could be extended to couples where at least one parent is an Indian national. It is now left to the government to take a decision and present the Bill in Parliament

Indian Council for Medical Research guidelines on Surrogacy:

The Indian Council for Medical Research has given Guidelines in the year 2005 regulating Assisted Reproductive Technology procedures. The following observations have been made by the Law Commission in its report:

  • Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
  • A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
  • A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
  • One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
  • Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
  • The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
  • Right to privacy of donor as well as surrogate mother should be protected.
  • Sex-selective surrogacy should be prohibited.
  • Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

Sources: The Hindu, wiki.

 

Intellectual Property Rights

Intellectual property (IP) rights are the legally recognized exclusive rights to creations of the mind. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property rights include copyright, trademarks, patents, industrial design rights, trade dress, and in some jurisdictions trade secrets.

IPR plays a key role in almost every sector and has become a crucial factor for investment decisions by many companies.

INDIA and IPR Regime:

In today’s globalised scenario of expanding multilateral trade and commerce, it has become inevitable for any country to protect its intellectual property by providing statutory rights to the creators and inventors and thus help them fetch adequate commercial value for their efforts in the world market.

This innovative and creative capacity is protected under the intellectual property system of WTO. Recognising this fact, India as a founder member of WTO has ratified the Agreement on Trade Related Intellectual Property Rights (TRIPS). As per the agreement, all member countries including India are to abide by the mutually negotiated norms and standards within the stipulated timeframe. Accordingly, India has set up an Intellectual Property Right (IPR) regime, which is WTO compatible and is well established at all levels whether statutory, administrative or judicial.

TRIPS is an international agreement administered by the World Trade Organization (WTO), which sets down minimum standards for many forms of intellectual property (IP) regulations as applied to the nationals of other WTO Members.

IPR-related issues in India like patents, trademarks, copyrights, designs and geographical indications are governed by the Patents Act 1970 and Patent Rules 2003, Trademarks Act 1999 and the Trademarks Rules 2002, Indian Copyrights Act, 1957, Design Act 2000 and Rules 2001, and The Geographical Indications of Goods (Registration & Protection) Act, 1999 and The Geographical Indications of Goods (Registration & Protection) Rules 2002, respectively. All these Acts and regulations are at par with international standards.

The very well-balanced IPR regime in India acts as an incentive for foreign players to protect their Intellectual Property in India. This can be established by the very fact that approximately 80% of patent filings in India are from the MNCs.

While the IPR regime in India consists of robust IP laws, it lacks effective enforcement, for which “least priority given to adjudication of IP matters” is often quoted as a reason.

The key challenge is to sensitize the enforcement officials and the Judiciary to take up IP matters, at par with other economic offences, by bringing them under their policy radar.

The IPR division tries to provide proactive business solutions through research, interactions at the highest political level while facilitating global networking. Further, since the IPR provides exclusive rights over assets, it is a major challenge for the country to balance the interests of the innovators and the interests of the society at large.
In today’s highly competitive global economy, IPRs are giving companies the cutting edge and increasing their competitiveness.

American companies, particularly from the pharma sector, have alleged that Indian IPR laws discriminate against U.S. companies and violate global norms.
In the report
‐ titled special 301 report
‐ brought out by the U.S., India has been classified as a ‘priority watch list country’. On the report, India has said that the Special 301 process is a unilateral measure taken by the U.S. under their Trade Act, 1974, to create pressure on countries to increase IPR protection beyond the TRIPS agreement.

But, India has consistently pointed out that the intellectual property rights (IPR) legal regime in India is fully TRIPS compliant and that any issues to be discussed have to be discussed in bilateral forums such as the Trade Policy Forum (TPF),”.

For further reference:
http://www.ficci.com/sector/24/Project_docs/IPR-profile.pdf.

Sources: The Hindu, www.ficci.com, http://business.gov.in/.

International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM)

Invasive aquatic species present a major threat to the marine ecosystems, and shipping has been identified as a major pathway for introducing species to new environments. The problem increased as trade and traffic volume expanded over the last few decades, and in particular with the introduction of steel hulls, allowing vessels to use water instead of solid materials as ballast. The effects of the introduction of new species have in many areas of the world been devastating. Quantitative data show the rate of bio-invasions is continuing to increase at an alarming rate.

The Ballast Water Management Convention, adopted in 2004, aims to prevent the spread of harmful aquatic organisms from one region to another, by establishing standards and procedures for the management and control of ships’ ballast water and sediments.

Under the Convention, all ships in international traffic are required to manage their ballast water and sediments to a certain standard, according to a ship-specific ballast water management plan. All ships will also have to carry a ballast water record book and an international ballast water management certificate.

The Convention will require all ships to implement a Ballast Water and Sediments Management Plan. All ships will have to carry a Ballast Water Record Book and will be required to carry out ballast water management procedures to a given standard. Existing ships will be required to do the same, but after a phase-in period.

Parties to the Convention are given the option to take additional measures which are subject to criteria set out in the Convention and to IMO guidelines.

General Obligations:

Under General Obligations, Parties undertake to give full and complete effect to the provisions of the Convention and the Annex in order to prevent, minimize and ultimately eliminate the transfer of harmful aquatic organisms and pathogens through the control and management of ships’ ballast water and sediments.

Parties are given the right to take, individually or jointly with other Parties, more stringent measures with respect to the prevention, reduction or elimination of the transfer of harmful aquatic organisms and pathogens through the control and management of ships’ ballast water and sediments, consistent with international law. Parties should ensure that ballast water management practices do not cause greater harm than they prevent to their environment, human health, property or resources, or those of other States.

This convention also calls for Parties individually or jointly to promote and facilitate scientific and technical research on ballast water management; and monitor the effects of ballast water management in waters under their jurisdiction.

For further reference:
http://www.imo.org/About/Conventions/ListOfConventions/Pages/International-Convention-for-the-Control-and-Management-of-Ships’-Ballast-Water-and-Sediments-(BWM).aspx.

Sources: The Hindu, http://www.imo.org/.

 

Nuclear Non-Proliferation Treaty

It is an international treaty whose objective is to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy, and to further the goal of achieving nuclear disarmament and general and complete disarmament.

The Treaty entered into force in 1970.

More countries have adhered to the NPT than any other arms limitation and disarmament agreement, a testament to the Treaty’s significance.

A total of 190 states have joined the Treaty. Four UN member states have never joined the NPT: India, Israel, Pakistan and South Sudan. North Korea, which acceded to the NPT in 1985 but never came into compliance, announced its withdrawal in 2003.

The treaty recognizes five states as nuclear-weapon states: the United States, Russia, the United Kingdom, France, and China. Four other states are known or believed to possess nuclear weapons: India, Pakistan and North Korea have openly tested and declared that they possess nuclear weapons, while Israel has had a policy of opacity regarding its nuclear weapons program.

The NPT is interpreted as a three-pillar system, with an implicit balance among them: the three pillars are:

  • non-proliferation,
  • disarmament, and
  • The right to peacefully use nuclear technology.

The NPT non-nuclear-weapon states agree never to acquire nuclear weapons and the NPT nuclear-weapon states in exchange agree to share the benefits of peaceful nuclear technology and to pursue nuclear disarmament aimed at the ultimate elimination of their nuclear arsenals.

The treaty is reviewed every five years in meetings called Review Conferences of the Parties to the Treaty of Non-Proliferation of Nuclear Weapons. Even though the treaty was originally conceived with a limited duration of 25 years, the signing parties decided, by consensus, to extend the treaty indefinitely and without conditions.

Several additional measures have been adopted to strengthen the NPT and the broader nuclear non-proliferation regime and make it difficult for states to acquire the capability to produce nuclear weapons, including the export controls of the Nuclear Suppliers Group and the enhanced verification measures of the IAEA Additional Protocol.

Important articles in the Treaty:

  • Each nuclear-weapons state (NWS) undertakes not to transfer, to any recipient, nuclear weapons, or other nuclear explosive devices, and not to assist any non-nuclear weapon state to manufacture or acquire such weapons or devices.
  • Each non-NWS party undertakes not to receive, from any source, nuclear weapons, or other nuclear explosive devices; not to manufacture or acquire such weapons or devices; and not to receive any assistance in their manufacture.
  • Each non-NWS party undertakes to conclude an agreement with the IAEA for the application of its safeguards to all nuclear material in all of the state’s peaceful nuclear activities and to prevent diversion of such material to nuclear weapons or other nuclear explosive devices.
  • Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination.
  • All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy. Parties to the Treaty in a position to do so shall also co-operate in contributing alone or together with other States or international organizations to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the Treaty, with due consideration for the needs of the developing areas of the world.
  • The states undertake to pursue “negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament”, and towards a “Treaty on general and complete disarmament under strict and effective international control”.

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p style=”text-align: right”>Sources: The Hindu, Wiki, http://www.un.org/.