Contemporary legal developments & transformations on surrogacy laws in India

Pub. Info. – Contemporary legal developments & transformations on surrogacy laws in India, by Sonali Kusum, Indian Journal of Legal Philosophy , ISSN : 2347- 4963, VOLUME 2, ISSUE 4, DECEMBER 2014,  Pg 48 – 58.

Abstract –

It is close to a decade since the supreme court  legalized surrogacy in India which was followed with  large scale practice of surrogacy in India to the extent of industrial proportion , yet there is no effective statutory law on surrogacy in India. The legislature, the Ministries of Government Departments have made attempts in legalizing the same by attempting formulation of drafts of surrogacy law as ART Bill and subsequent revision. In addition to these Bills, in recent past, there are new regulatory instruments proposed which merit mention as these differ from the earlier proposed drafts or Bills, at the same time  these are seeking to introduce new regulatory measures for introducing control on surrogacy arrangements and also introducing better provisions for reproductive health safeguards for the surrogate mothers. It would not be wrong to say that at present surrogacy laws in India is undergoing through a definite change however the desirability and the functional necessity of the same is a potent issues which is are not much deliberated upon but never the less these may be a step towards enactment of a better and meaningful statutory law on Surrogacy in India soon.

Introduction – Medical & legal Development on surrogacy :

Surrogacy is defined as an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in  which neither of the gametes belong to her or her husband, with the intention to carry it and hand over the child to the person or persons for  whom she is acting as a surrogate as provided under the ART Bill [1]. In simple terms surrogacy means the process of carrying and delivering a child for another person as stated in Black Law dictionary .[2]

India’s first in vitro fertilization (IVF)  surrogate  baby, named  Kanupriya alias Durga was born in Kolkata on October 3, 1978 , this is only three months after the world’s birth of first surrogate child  named Louise Joy Brown born in Great Britain on July 25, 1978.

In India surrogacy is practiced since year 2002 following the new medical tourism policy

directed at earning foreign exchange and revenues through medical tourism[3] by permitting foreign nationals to avail the services of Indian  surrogate mother and commission surrogacy hence surrogacy began to be practiced  in India.

Followed with this, ICMR , Ministry of Health & Family Welfare in the year 2001 initiated the task of formulation of  first draft Guidelines  and ICMR laid down the permissible standards for the conduct of surrogacy in India in the year 2005 titled as National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India for the Clinics to comply and practice for the conduct of surrogacy in India .These ICMR Guidelines became the first regulating instrument on surrogacy in India which laid down standards for the fertility or ART Clinics to practice the assisted conception techniques like surrogate motherhood. The primary significance of the guidelines lies in the fact that it authoritatively provided for commercial and gestational surrogacy in India there by permitting the gestational services of a woman to be availed for gestation and delivery of child in return for monetary payment. As an after math of these Guidelines many fertility clinics mushroomed in the country providing the facility or the option of commercial commissioning surrogacy both to nationals and foreigners by placing advertisements promising children to infertile couple through surrogacy at a compelling prices / lucrative prices for their  profiteering motives.

Supreme Court & High Court on Surrogacy – Case Analysis :

Meanwhile, the supreme court of India in its landmark judgment of Japanese surrogate Baby Yamanda  Manaji case[4]  involving the national of Japan as Intending couple who commissioned surrogacy in Anand , Gujarat in India by availing the gestational service of an Indian surrogate mother for a fixed sum of monetary payment under a surrogacy agreement  to this effect . The surrogate child yamanda manaji was biologically related to the intending father and donor egg and carried and delivered by the surrogate mother.

The supreme court in this landmark case for the first time pronounced the legalization and practice of commercial surrogacy in India stating that there is nothing in Indian law which prevents or acts as an impediment to legalization of commercial surrogacy in India. The court enumerated the definition of surrogacy the types of surrogacy and the form of commercial surrogacy popularly practiced in India. The apex court listed several favorable factors namely easy availability of poor women in India , excellent medical infrastructure among others in India which facilitated commercial surrogacy in India. The Supreme court even acknowledged the fact that commercial surrogacy has reached upto industrial proportions. As per a UN study it is estimated that Commercial surrogacy is a booming business in India with returns more than 400 million dollars annually[5]. Having pronounced the legalization of commercial surrogacy , the  apex court directed towards the enactment of a statutory law on the same as there is an absence of any effective, binding  statutory law on surrogacy in India.

In this case, though the court mentioned about the economic, reproductive health exploitation of surrogate mother, the feminist ethical issues of surrogate motherhood as womb renting and surrogate mother and the rise of illegalities associated with commercial surrogacy in India particularly in the absence of any law but did not address the same.

In addition to these,  the case brought forth the issue of raised significant issues concerning issues concerning the citizenship of surrogate child, the foreign travel permit or issue of passport for the surrogate child and the legal hassles  due to the inter country statutory differences in the surrogacy laws of two nations namely Japan and India. While Japan prohibited commercial surrogacy and defined legal motherhood with the birthing mother  in compliance with the roman legal maxim mater semper certa est “the mother is always certain” [6] enshrined in the Japanese civil code 1896 [7] Where as India despite the absence of any legislation  on surrogacy but under the ICMR Guidelines 2005 commercial surrogacy or monetary payment for hiring gestational services of surrogate mother is permitted and the legal motherhood is vested with the intending mother or the wife of the intending father.

At the outset court did not lay down any safeguards for the better protection of interest of either the surrogate mother or the surrogate child. The court directed the petitioners to approach the child commission on the findings that it is a specialized body related to child rights and hence an appropriate forum for addressing complaints or grievances related to surrogate child , this appear irrational as the commission has only power to issue recommendations which  does not have effective binding powers.

In the successive year 2009, there was another similar case of commercial surrogacy, the Jan Balaz German Surrogate twins case [8] involving the German nationals as intending couples who also availed the services of Indian surrogate mother and paid her for the same. The Gujarat HC court has reiterated the supreme court judgment and upheld the legalization of commercial surrogacy in India and held valid such surrogacy agreement between the two parties as mentioned . This case also brought forth issues related  to  birth certificate for surrogate child and registration of names of both the parties namely the intending father and her wife as the parents of the surrogate child in the birth certificate and not the surrogate mother , along with these the woes of the surrogate motherhood and evils of the commercial transaction of motherhood and its consequential impact on women but the court very curtly expressed that surrogate mother is not their primary concern rather  the child is the main concern  whose legal parenthood could not be legally established .  But despite this , the court did not invoke its parens patria jurisdiction [9] or its special powers to do complete justice in any case[10] the court did not issue any issue any directions on the same considering the vulnerability of a new born child who may be unjustly deprived of parentage m nationality and all basic legal civil rights due to technicalities in law.

Hence even in this case, the court overlooked certain pertinent issues arising from such surrogacy arrangements despite legalizing the same. Thus these cases established the commercial surrogacy but shortcomings and oversight existed.

Considering the court directions, there has been formulation of the a draft Bill named Assisted Reproductive Technologies ( Regulations) , ART Bill 2008[11] formulated by the Indian Council of Medical Research (ICMR , Delhi) under the aegis of Ministry of Health and Family welfare Government of India modeled after ICMR Guidelines 2005[12] providing for the legal regulation of surrogacy in India.  The central feature of this Bill is the legal permit to commercial surrogacy by providing for payment of monetary compensation to the surrogate mother for her gestational services by entering into a surrogacy agreement to this effect[13] and the enforceability of such commercial surrogacy agreement in India[14]. This draft ART Bill since its first ever formulation in year 2008 has been revised twice, once in the year 2010[15]and lately in the year 2013[16]with  necessary modifications.

At present, the ART Bill 2013 has been tabled before cabinet but remains in pendency. The ART Bill 2013 is proposed after several rounds of consultations and deliberations with different Government bodies, Commissions, Ministries[17] , NGOs and the necessary suggested safeguards have been incorporated in the Bill. Despite the formulation and revision of all these legal instruments, it is a long hiatus with no enactment of any statutory law on surrogacy in India.

Evidently there is a legal void on surrogacy in India which represents the laxity in the regulations making India one of the most liberal regime surrogacy with no functional law in practice or effect.  In fact, the absence of any binding law and any monitoring or supervisory body in itself has been one of the most favourable factors making India the hub of surrogacy. India is popularly known across the world as Global capital of surrogacy[18]and the surrogacy capital of the world and Anand in Gujarat in particular in India is known as the cradle of the world[19].

While the law develops through a series of drafting, revision process, there has been emergence of new regulating instruments which are gradually transforming the liberal or permissible regime of Indian surrogacy into a stricter or restrictive regime by imposing necessary control sand curbs in commissioning surrogacy in India. Hence it is significant to observe the legal developments on surrogacy taking place in the recent years and identify the distinguishing features of the same. Accordingly , some of the newly formulated  regulating instruments on surrogacy are discussed here .

Contemporary Legal Instruments on Surrogacy- findings & assessment :

a.Home Ministry Guidelines 2012  :

Since a year three main legal developments have take place. First and foremost the Government of India , Ministry Of Home Affairs , (Foreign Division) , New Delhi , Home Ministry Guidelines regarding conditions for grant of VISA to foreign nationals intending to visit India for commissioning surrogacy of the year 2012[20]  which is mainly directed towards the foreign nationals  ( not applicable on Indian nationals) seeking to avail surrogacy in India. The Guidelines issued instructions to the foreigners seeking to avail surrogacy in India to commission surrogacy only on after obtaining medical VISA and prohibited tourist visa and the use of the latter is haled to be a violation of visa norm liable to legal action or prosecutions. Hence this guidelines for the first time imposed a strict control on surrogacy in India by redefining the accessibility based on marital status. Nevertheless, these Guidelines are criticized as discrimination on the ground of sexual orientation of a person and denying access or means to procreative freedom to establish their own family and have children to such individuals[21].

This is also viewed as impairment or arbitrary interference with the reproductive decision making of an individual by permitting to commission surrogacy to have a child only after the second year of marriage and not any time prior . This appears prima facie arbitrary as it is the sole prerogative or right of the couple to decide the stage at which they may have children, the spacing between the number of children and the means to have children as these form the basic constituent of the reproductive freedom as guaranteed by the International Conference on Population and Development (ICPD), Cairo 1994. [22]

These Ministry Guidelines amounts to arbitrary state interference in the private , family lives of an individual , this is much in contravention of the  “right to privacy” as held by the supreme court of India in the classic case of  Kharak Singh v state of Bihar[23] and in B. K. Parthasarthi v. Government of Andhra Pradesh [24]which upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy” as well as similar other cases on this point [25] and as much violation of the International Convention.

This Guideline may be viewed in the contrast of the progressive surrogacy laws of other nations as California Surrogacy law 2013[26], UK HEFA Act [27] through recent revision of definitions of parenthood in April 2010[28], which permit homosexuals to commission surrogacy in the same footing as heterosexuals treating them as equals. In line of this arguments, there are several cases under the foreign legal jurisdictions which have granted legal recognition homosexuals to commission surrogacy and vested them with legal parentage.  In Elisa B. v. Superior Court[29] California court recognizes a lesbian co-parent as legal parent of the surrogate child  as they bring about its birth and carry out the plan to co-parent a child courts are willing to recognize a lesbian co-parent as a legal parent. Similarly , In the Matter of Jacob,[30]  T.V. v. NY Dep’t of Health[31] ,  Matter of Doe,[32]  The New York Court held that the right of same sex unmarried  intending couple to legal parentage over surrogate child through adoption.

b.Assisted Reproductive Technologies (Regulation) ART Bill 2013 :

The ART Bill 2013[33], though this draft of the Bill only a revision of the previous 2010 draft but with addition of certain novel and progressive provisions in the draft. It is proposed under the 2013 draft that  a women may be permitted to be surrogate only upto a maximum of three times from the earlier limit of five times and egg donor only upto three times as reduced from six times  during her life time  as previously stated in the ART Bill 2010[34]. The Bill lays down list of documents to be furnished by foreign nationals issued from their Embassy for  to legally commission surrogacy in India and due consent to take the surrogate child or children back to their foreign country along with the grant of citizenship , parentage  rights for the surrogate child in the foreign nation.

The ART Bill 2013 also imposes a stringent punishment by increasing the term of punishment for any offense under the Bill related to medical misuse of ART Technology for causing  sex selective birth of surrogate child. The most notable development under this draft has been the establishment of ART Registry which is primarily functioning for granting accreditation , registration to the ART Clinics and ART Banks as well as maintains necessary records , information , data with regard to surrogacy arrangement in India.

c.Indian Society for Third-Party Assisted Reproduction :

The INSTAR[35]  presided by Dr. Bavishi as President and Dr Rita Bakshi Vice President , these are recommendations are formulated by a group of self conscious and motivated doctors, lawyers, experts  whose main purpose is to protect the interest of surrogate mothers. The recommendations for the first time stipulated a fixed sum of compensation around 2.5 lakhs  to be all the surrogate mothers at the state and national level  through out India. Along with this , it  also lays down monetary compensation to be paid to the surrogate mother in case of health eventualities or health  risks arising out of surrogate pregnancy. The INSTAR recommendations are supplementary to the relevant provision[36] of ART Bill which provides for monetary payment to surrogate mother but does not specify the amount of compensation.  However the, practice of these guidelines are entirely voluntary and these guidelines have no legal binding force in them.

It has been observed and reported pursuant to research studies conducted by NGO[37] , women rights groups that the surrogate mothers are not paid the exact sum as promised under the surrogacy contract entered by them rather quite often they are paid half of that amount or a lesser amount than that and they are subject to cheating, fraudulent practices.[38] The right of surrogate mothers to monetary compensation in return for gestational services including reimbursement of cost of surrogate pregnancy and related expenses has been held as an established right by Justice Hedley in UK court[39]. Similar protection is required for the surrogate mothers in India.

 End  Remarks & Suggestions-

Despite , these legal instruments there are still limitations in addressing grave concerns related to surrogacy like the reproductive health safeguards for the  surrogate mothers and issues related to the surrogate child among others. Besides, a host of regulatory instruments with its distinct merits and demerits as discussed above on  surrogacy  in place  have created a state of flux with a series of proposed change whose enforceability remains doubtful. These newly proposed legal instruments ART Bill 2013 have only added to present set of ambiguities. There is need to incorporate the progressive provisions from the foreign jurisdiction as deem necessary in the Bill

Therefore it is suggested that the ART Bill 2013 must be enacted at the earliest to ensure an effective binding statutory law for better conduct of surrogacy in India towards medically, socially and  legal desirable purposes.

[1] The Assisted Reproductive Technologies (Regulation) Bill – 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (Last visited Feb. 15, 2014) [hereinafter ART Bill 2010].   §2  ( aa ) ART Bill 2010

[2] BLACK’S LAW DICTIONARY 1582 (9th ed. 2009).

[3] Scott Carney,   Inside India’s Rent-a-Womb Business,  motherjones , March/April 2010 Issue , available at http://www.motherjones.com/politics/2010/02/surrogacy-tourism-india-nayna-patel (Last visited Feb. 15, 2014)

[4] Baby Manaji Yamanda. Union of India, (2008) 13 S.C.C. 518

[5] Saket suman,  Born(e) in desperation, The Statesman, 17 Sep 2014 available at http://www.thestatesman.net/news/77650-born-e-in-desperation.html?page=6 (Last visited Feb. 15, 2014)

[6] Wikipedia,  Mater semper certa est, Wikipedia, the free encyclopedia, available at http://en.wikipedia.org/wiki/Mater_semper_certa_est (Last visited Feb. 15, 2014)

[7] Japaneese Civil  Code, (Japanese: 民法 Minpō) ,  Government of Japan, translated by Ministry of Justice, Government of Japan, Act No. 89 of April 27, 1896, available at http://www.moj.go.jp/content/000056024.pdf(Last visited Feb. 15, 2014)

[8] Jan Balaz v. Anand Municipality and Ors., AIR 2010 Guj 21

[9] Wikipedia, the free encyclopedia, Parens patriae, available at http://en.wikipedia.org/wiki/Parens_patriae (Last visited Feb. 15, 2014)

Parens patriae  is latin for “parent of the nation.” It is a legal doctrine in English Common Law which confers inherent power and authority of the state to protect persons who are legally unable toact on their own behalf power to and to act as the parent of any child or individual who is in need of protection

[10] V.N. SHUKLA, CONSTITUTION OF INDIA 131 (M.P.Singh ed., 2008) , “art” 142

(Constitution of India, ed., 2008).

[11] Indian Council of Medical Research. The Assisted Reproductive Technology (Regulation) Bill– 2008(Draft) Ministry of Health and Family Welfare, Government of India, available at http://icmr.nic.in/art/Draft%20ART%20(Regulation)%20Bill%20&%20Rules%20-%202008-1.PDF (Last visited Feb. 15, 2014) [hereinafter Draft Bill 2008].

[12] ICMR National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, 2005, available at http://icmr.nic.in/art/art_clinics.htm (Last visited Feb. 15, 2014).

[13] ART Bill 2010, supra note 2 at §  34 (3)

[14] ART Bill 2010, supra note 2 at §  34 (1)  (2)

[15]  The Assisted Reproductive Technologies (Regulation) Bill – 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (Last visited Feb. 15, 2014) [hereinafter ART Bill 2010].

[16] Assisted Reproductive Technology (Regulations) Bill 2013, (Tentative Draft) Date Jun. 27, 2013, Legislative Department, Ministry of Law & Justice, Government of India [hereinafter ART Bill 2013].

[17] AARTI DHAR , Ministries consulted on Assisted Reproductive Technology Bill , THE HINDU, November 23, 2013, available at  http://www.thehindu.com/sci-tech/health/ministries-consulted-on-assisted-reproductive-technology-bill/article5380425.ece(last visited Feb. 21, 2014)

[18] Kounteya Sinha, Bill Aims To Weed Out Rent-A-Womb Clinics, TNN, Jul. 13, 2012, available at http://timesofindia.indiatimes.com/india/Bill-aims-to-weed-out-rent-a-womb-clinics/articleshow/14858687.cms?referral=PM (last visited Feb. 11, 2014)

[19] Center for social Research Delhi , Surrogate Motherhood- Ethical or Commercial, Page no. 10 , available at  http://www.womenleadership.in/Csr/SurrogacyReport.pdf , csr@vsnl.com  (last visited Feb. 21, 2014)

[20] Government of India , Ministry Of Home Affairs , (Foreign Division) , New Delhi , Home Ministry Guidelines regarding conditions for grant of VISA to foreign nationals intending to visit India for commissioning surrogacy , issued on 9th July 2012, No. 25022/74/2011/F-1, 14th October 2013 , available at http://www.icmr.nic.in/icmrnews/art/MHA%20Notification_%2014%20Oct.,%202013.pdf (last visited April 25 , 2014).

[21]  Vidya Krishnan, India’s draft surrogacy Bill bars homosexuals, live-in couples,livemint,  Aug 07 2013,
available at http://www.livemint.com/Politics/ZsS2zs7KvqHlk4FCguW0EN/Draft-surrogacy-Bill-bars-homosexuals-livein-couples.html?utm_source=copy (last visited April 25 , 2014).

[22] INTERNATIONAL CONFERENCE ON POPULATION AND DEVELOPMENT , Cairo, 5-13 September 1994 , UNITED NATIONS Distr. GENERAL A/CONF.171/13, 18 October 1994, available at http://www.un.org/popin/icpd/conference/offeng/poa.html (last visited April 25 , 2014).

[23] Kharak Singh v. State of U.P., AIR 1963 SC 1295.

“The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be left alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters” – Mathew, J. as Lord Denning.

[24]  B. K. Parthasarthi v. Government of Andhra Pradesh  AIR 2000 A. P. 156, Javed v. State of Haryana, (2003) 8 SCC 369

[25] Govindv. State of M.P, (1975) 2 SCC 148: 1975 SCC (Cri) 468. R. Rajagopal v. State of T.N, (1994) 6 SCC 632.

[26] Richard Vaughn, California Surrogacy Law To Take Effect Jan. 1, International fertility Law Group, |November 26th, 2012, available at  http://www.iflg.net/california-surrogacy-law-to-take-effect-jan-1/ (Last visited Feb. 18, 2014).

[27] UK HEFA, Human Fertilization and Embryology Act 2008, 2008 CHAPTER 22, available at  http://www.legislation.gov.uk/ukpga/2008/22/contents (Last visited Feb. 18, 2014).

[28] UK HEFA , IVF – the Law , Phase one: On April 6 2009 part 2 of the Act, the revised definitions of parenthood, took effect. On April 6 2009 part 2 of the Act, the revised definitions of parenthood, took effect, available at  http://www.hfea.gov.uk/134.html (Last visited Feb. 18, 2014).

[29]  Elisa B. v. Superior Court (2005) 37 C.4th 108, 33 C.R.3d 46, 117 P.3d 660.

[30] In the Matter of Jacob, 86 NY2d 651 (1995).

[31] T.V. v. NY Dep’t of Health 88 AD3d 290 (2d Dep’t 2011).

[32] Matter of Doe, 7 Misc 3d 352 (NY Cty. Surrogate’s Ct., Feb. 1, 2005).

[33] Assisted Reproductive Technology (Regulations) Bill 2013, (Tentative Draft) Date Jun. 27, 2013, Legislative Department, Ministry of Law & Justice, Government of India [hereinafter ART Bill 2013].

[34] AARTI DHAR Gaps in surrogacy bill , THE HINDU  , October 27, 2013, http://www.thehindu.com/sci-tech/health/ministries-consulted-on-assisted-reproductive-technology-bill/article5380425.ece

[35] INSTAR KEY RECOMMENDATION ,5th October, 2013 Guwahati, available at  http://instarorg.blogspot.in/2013_10_01_archive.html, (last visited March 10, 2014).

[36]   ART Bill 2010, supra note 2 at § 34 (1) (3) ART Bill 2010

[37] Sama–Resource Group for Women and Health, Birthing A Market A Study on Commercial Surrogacy, published by Sama–Resource Group for Women and Health, 2012 , Delhi , available at  http://www.samawomenshealth.org/downloads/Birthing%20A%20Market.pdf  (last visited March 10, 2014).

[38] R. SUJATHA , Chennai-based trust seeks to bring about transparency in surrogacy, the hindu , CHENNAI, January 20, 2013, available at  http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/chennaibased-trust-seeks-to-bring-about-transparency-in-surrogacy/article4325195.ece (last visited March 10, 2014).

[39] TAMARA COHEN,  Childless couples win right to pay a surrogate mother to bear their child, 9 December 2010, daily mail UK, available at  http://www.dailymail.co.uk/news/article-1337005/Childless-couples-win-right-pay-surrogate-mother.html#ixzz3BhFt6woB (last visited March 10, 2014).
 

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