Overview of Surrogacy laws in India

Pub. Info. – Overview of Surrogacy Laws in India  by Sonali Kusum, Indian Bar Review,. Journal Bar Council of India , March Issue 1/ 2014.

Abstract –

Surrogacy as one of the Assisted Reproductive Technique has gained popularity in world over by achieving parenthood for infertile individuals and facilitating family formation. Surrogacy in commercial form is legalized and practiced in India yet there is no binding law but only a Draft Bill awaiting enforcement along with other legal instruments by Government of India which run mutually inconsistent  and suffer serious limitations.

Surrogacy involves the womb renting  for  monetary returns through commercial agreement  between parties of same or different nations and renders determination of the status of motherhood , legitimacy of surrogate child and parenthood questionable by  giving rise to host of  legal issues , however the laws fails to address the same besides being largely ambiguous and  ineffective.

Introduction : India as a hub of Commercial Surrogacy :

Though India has only a draft bill on surrogacy, surrogacy is more than widely practiced in India, for the same reason India has the earned the epitaph of the world capital of surrogacy and particularly the village of Anand in Gujarat, is popularly known as the ‘cradle of the world [1] . one of the main reason for India being so popular destination for surrogacy is the lack of  strict laws on surrogacy  further the laws favoring the  custody of surrogate child with the intending couple and not with surrogate mother thereby providing for birth certificate of surrogate  child naming the intending couple as parent , the cheaper cost of availing Surrogacy in India which is one third of the cost in USA or other foreign country, the abundant availability of surrogate mother coupled with availability of medical experts and good hospitals and infrastructure .

At present , India has an IVF  industry with $2.4 billion with 1000 clinics in India  producing an estimated 25,000 babies a year[2]. It is stated that Surrogacy generates US$2.3 billion annually in India[3]

  1. Indian‘s legal Position in Surrogacy :

In India , Surrogacy in Commercial form is formally legalized with the Supreme Court judgment of  Baby Manji Yamanda Vs Union of India[4]  reiterated in Jan Balaz vs Anand Municipality[5].Subsequent to this judgement there has been a draft ART Bill which legalized commercial surrogacy in India and other legal instruments.

Surrogacy is regulated in India under these legal instruments as following:

1.Indian Council of Medical Research (ICMR) Guidelines 2005,[6]

2. Assisted Reproductive Technology (Regulation) Bill 2010, Draft Bill awaiting enforcement[7]

3. Law commission Report by Government of India Report No. 228, Need For Legislation to Regulate  Assisted  Reproductive  Technology Clinics As Well as  Rights  & Obligations of  Parties  to  Surrogacy” year 2009[8].

4. Home Ministry Regulations on Surrogacy to FRRO – VISA, January 2013[9].

  1. ICMR Guidelines 2005, the Guidelines have been drafted by Indian Council of Medical Research for regulating the conduct of ART clinics offering surrogacy in India. This Guideline prescribed conduct and use of Assisted Reproductive Technology (ART) procedures or treatment by the fertility clinics. This was a precursor to the ART Bill Practiced by Clinics but these Guidelines are only recommendatory in nature and are not Legally Binding.

 2. Assisted Reproductive Technology (Regulation) Bill 2010, it has been drafted by a drafting committee appointed by the Ministry of Health and Family Welfare, Government of India.

Some of the relevant provisions of bill proposed to regulate of the surrogacy arrangement in India are following:

The Bill legalizes commercial surrogacy in India: Assisted Reproductive Technology (Regulation) Bill 2010, among other things  primarily legalizes commercial surrogacy by providing for payment as “monetary compensation” to the surrogate mother by the Intending couple for agreeing to act as surrogate under  surrogacy agreement which is enforceable in law[10].

The Bill provides for the conduct of surrogacy through Surrogacy Agreement : There should be a surrogacy agreement entered into by the couple or individual seeking surrogacy and the surrogate mother, shall enter into a surrogacy agreement which shall be legally enforceable[11].

The Bill provides for National Advisory Board for Assisted Reproductive Technology as well as Sate Advisory Board and State Registration Authority: The Bill provides for the setting up National Advisory Board for Assisted Reproductive Technology [12]as well as Sate Advisory Board[13] to supervise the conduct of ART clinic and ensure compliance with the mandates of ART Bill and State Registration Authority[14] which shall grant a certificate of registration to the ART Clinic for their functioning.

The Bill stipulates the eligibility criteria to be satisfied in order to avail ART Treatment in India: In order to avail ART treatment including Surrogacy the Intending couple must be twenty one years[15] and none of the ART Treatment or techniques must be performed on a person below twenty one years, the surrogate mother, the gamete donors[16] either as oocyte or sperm donor must be twenty one years in order to be eligible to be donors or surrogates[17]

The Bill lays down certain pre conditions in order to be surrogate mother: The Bill fixes the eligibility age as minimum and maximum age for a woman to act as surrogate mother as twenty one years of age and over thirty five years of age respectively shall be eligible to act as a surrogate mother under this Act[18]. Further it states that a woman shall act as a surrogate only upto five successful live births in her life, including her own children[19].

Only Indian citizens shall have a right to act as a surrogate and no Indian surrogate mother shall be received or sent abroad by ART Bank or ART clinics [20]

The Bill stipulates duties to be complied with by the surrogate mother:

Surrogate shall be duty-bound not to engage in any act that would harm the foetus during pregnancy and the child after birth, until the time the child is handed over to the Intended or commission parents designated person(s)[21].

The Bill provides for insurance for surrogate mothers subject to availability: The Bill provides for payment of all expenses including insurance during the period of pregnancy and after delivery if available to the surrogate mother  by the intending couple [22].

The Bill addresses the issues of legitimacy and parentage of the surrogate child: A child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both spouses and shall have identical legal rights as a legitimate child born through sexual intercourse.[23]

The birth certificate issued in respect of a baby born through surrogacy shall bear the name(s) of individuals who commissioned the surrogacy, as parents , the names of intending couples will be stated as parent of the surrogate child not the surrogate mother[24]

The Bill provides for relinquishing the custody of surrogate child by Surrogate mother, Egg Donor : The Gamete donor, surrogate mother shall relinquish all parental rights over the child which may be conceived from his or her gamete [25]

The Bill mandates Intending couple to accept the custody of surrogate child: The person or persons who have availed of the services of a surrogate mother shall be legally bound to accept the custody of the children irrespective of any abnormality that the child or  children may have, and the refusal to do so shall constitute an offence under this Act[26].

The Bill provides for Foreigners to avail commercial surrogacy in India :

The Bill provides for Foreign Intending couple or non-resident Indian individual or couple, to avail surrogacy in India after submitting necessary documents which include a Letter from either the Embassy of the Country in India or from the foreign ministry of the Country, explicitly stating that (a) the country permits surrogacy, and (b) the child born through surrogacy in India, will be permitted entry in the Country as a biological child of the commissioning couple or  individual[27].

The Bill provides for appointment of a Local Guardian : The Foreign Intending couple or non-resident Indian individual or couple, seeking surrogacy in India shall appoint a local guardian who will be legally responsible for taking immediate care of the surrogate mother during and after the pregnancy[28] as well as to take immediate custody of the surrogate child if the foreign Intending couple seeking surrogacy fails to take delivery of the child, the guardian is responsible for the custody of child till the expiry of the period of one month after which the Guardian may hand the child over the child to an adoption agency, or alternatively may adopt the child himself.[29]

The Bill ensures privacy of parties availing ART Treatment in India: The Bill ensures the confidentiality or privacy to be maintained with respect to the donors as well as the surrogate mother. [30]

The Bill prohibits pre-natal determination of sex of surrogate child and makes it a punishable offense: The bill prohibits conducting of pre-natal diagnostic techniques on any pregnant woman in order to determine the sex of the surrogate child before birth. This Bill makes such conduct by any medical geneticist, gynaecologist or registered medical practitioner a punishable offence and stipulates the punishment for same.

This Draft Bill is awaiting enforcement hence during the pendency of the Bill all these provisions therein have no effect and not legally binding.

Apart from these legal instruments Surrogacy is regulated by Surrogacy Agreement during the pendency of the Bill ,

Surrogacy Agreement:

The surrogacy agreement is defined as a contract between the person(s) availing of assisted reproductive technology and the surrogate mother[31]. Thus the Surrogacy Agreement is entered into between two parties namely the Intending couple and the Surrogate mother and the ART or Fertility or IVF Clinic is not party to the surrogacy agreement.

In India, the ART Bill under its relevant provides that “both the couple or individual seeking surrogacy through the use of assisted reproductive technology and the surrogate mother, shall enter into a surrogacy agreement which shall be legally enforceable[32] and gives legal binding effect to surrogacy agreement[33]. It is under this surrogacy agreement that monetary compensation for the surrogate mother may be provided for agreeing to act as such surrogate[34]Thus in the absence of binding law or till the law comes into effect the surrogacy arrangement is governed by the terms and conditions of the surrogacy contract.[35]

But there are certain limitations in the surrogacy agreement as well.  One of the prime critic of surrogacy agreement is it is agreements may be legally enforceable and binding only within the geographical boundary of India or territorial limits of India only and not beyond or outside India, thus the surrogacy agreement made within India may not be legally valid or binding in foreign country rather such agreement may have no legal effect rendered void and unenforceable

Thus in the absence of binding law or till the law comes into effect the surrogacy arrangement is governed by the terms and conditions of the surrogacy contract entered into by the parties namely the intending couple and the surrogate mother and the same would regulate the surrogacy arrangement.[36]

3. Law Commission Report No. 228 titled as Need For Legislation to Regulate Assisted Reproductive Technology  Clinic as well as Rights & Obligations of Parties to a Surrogacy , year 2009  it discusses the rights and obligations of parties to surrogacy, the report recommended for legalizing altruistic or non commercial surrogacy arrangements in India in order to protect the surrogate mother from exploitation as opposed to ART Bill. The Report recommends for obtaining full informed consent from surrogate mother, life insurance for surrogate mother thus it seeks to protect the interest of surrogate mother.

4. Home Ministry Guidelines (Foreign Division) Foreign Nationals Intending to visit India for Commissioning Surrogacy & Conditions to be fulfilled for Grant of VISA, of the year 2013 , this Guidelines is applicable only to the Foreign Intending couples not on the Indians , it restricts the choice of availing surrogacy only to the foreign married heterosexual couples . It lay down certain terms & conditions for the grant of appropriate Medical VISA for the Foreign Intending couple. The Guideline provides for entering into duly notarized agreement by the Intending couple as well as by the surrogate mother to ensure the legal performance of surrogacy agreement. The Guidelines seeks to protect the welfare of surrogate child by requiring an undertaking from the Foreign Intending couple that they would take care of the child through surrogacy.

Landmark Judicial Decisions by Indian Courts on surrogacy – Legal Issues

Besides the legal instruments , there has been two landmark cases so far decided by the Supreme court as well as high court Indian courts on surrogacy , but unfortunately it does not lay down any law . Both the cases represent surrogacy arrangement of transnational nature touching upon the rights of surrogate child seeking to establish legitimacy of birth accordingly right to parentage and right to citizenship of the surrogate child. However the court did not lay down any law or precedent to be followed in the subsequent cases on these lines rather court only made ad hoc arrangements to meet the needs of the particular case before hand and the court let go of an pertinent opportunity to lay down the law while the pendency of the statue for better regulation of surrogacy cases in near future.

Chiefly two major cases have been discussed by Indian Supreme Court & High Court as following:

a.Baby Manji Yamada Vs.Respondent: Union of India (UOI) and Anr[37]

The case is of transnational nature which involved surrogacy arrangement between individuals of two countries namely India and Japan which involved surrogacy agreement between nations of two countries India & Japan, as the Intending couples were from Japan and avail the services of surrogate mother and ART Technology in India Gujarat following the birth of child host of issues surfaced  when the intending couple decided to take back the child to  japan and therefore applied for Passport for the newly born surrogate child in India and there was denial of passport for the surrogate child , due to the fact that Japan does not recognise and surrogacy is banned in japan , this led to / caused a series of issues which questioned the legitimacy of birth of surrogate child and rendered the determination of parentage questionable as the Japan civil code recognises only the birth mother as the legal mother  (following this  the Intending mother may not be the legal mother rather the surrogate mother may be the legal mother due to the fact of giving birth ) where as in India the ART Bill provides  thus the determination of motherhood was a grave issue  mired with legal complications/  in case of surrogacy laws of two nations,

It may be mentioned here that the ART Bill is not given legal effect and not legally binding in India and further the ART Bill is not in compliance with Indian Evidence Law as well on ground of the legitimacy of birth. As the Indian evidence law provides for motherhood as irrefutable presumption and conclusive presumption of law,irrespective of genetic connections or otherwise

Thus in consequence the surrogate child was denied the basic right to legal parentage , right to family, including denial of basic Civil Political Rights like right to nationality, right to citizenship for the surrogate child rendering the surrogate child stateless and parentless , this a serious concern, (correspondingly the Intending couple were also denied right to family and right to privacy on the same ground )

Some of the pertinent issues which were not resolved and need further consideration are namely the inconsistent surrogacy laws of two nations at international law where one legally permits surrogacy and other does not permit surrogacy, consequently non recognition and validity, unenforceability of surrogacy agreement outside the geographical boundary of one country and other related issues like legitimacy of surrogate child,  inheritance and Succession remains vauge under such circumstances remain ambiguous and all these cause conflict of laws at international law ,

  1. b. Jan Bajaj vs Anand Muncipality[38] further, Union of India Vs. Jan Balaz[39]

 similar issues of Inconsistent Surrogacy laws of two nations surfaced in this case as this case was also of transnational nature which involved surrogacy arrangement or surrogacy agreement between nationals of two countries as the  Intending Partners were from Germany and they availed the services of surrogate mother in India and ART Technology in India Gujarat, the case faced similar fate with issues of inconsistent surrogacy laws of two nations at international law consequent non recognition and validity, unenforceability of surrogacy agreement in the latter country and other related issues like legitimacy, parenthood, nationality, citizenship, inheritance and succession rights  of surrogate child and over all the conflict of laws at international law and the dire plight of surrogate child being rendered stateless and parentless !

It may be worthwhile to mention that in both the cases the court legalized commercial surrogacy in India but did not resolve the issues arising there from ,  though the court admitted that  there are a legal complications on legitimacy and parentage issues for the surrogate child among other issues ,

The case devised provisional arrangements for the surrogate child in both the cases , in the former case it provided for transit document short of passport for the surrogate child and in the latter it appealed to the National Commission for Protection of Child Rights NCPCR and Central Adoption Resource Authority (CARA)  to facilitate the inter country adoption of surrogate child to circumvent the legal complications associated with the inconsistent surrogacy laws of two nations , the court stated that these arrangements were one time remedy and the arrangements were permissible on the humanitarian grounds and these do not have any precedent value or need not be taken as a matter of regular course of action.

Thus after referring to both the cases, the issue of inconsistent surrogacy laws and conflict of laws and the case of stateless or parentless surrogate child remain unresolved till date!

Conclusion:

Keeping with  the above considerations, it is evident that the laws as well as the cases seeking to address surrogacy in India are besides being inadequate and inconsistent and does not provide  any resolve to the complex issues raised by surrogacy in India and the legal void is  expressly manifest  there fore there is need to regulate the surrogacy arrangements by formulating uniform comprehensive and effective laws that not address the legal issues but also are prospective in nature for effective regulation of the surrogacy arrangements.

On these lines, it may be worth while to mention the recent development in India, the Planning commission of India is seeking to appoint a expert committee for wider consultations on the draft Assisted Reproductive Technologies (ART) Bill, 2010 for addressing the “grave and critical” concerns therefrom.  [40] It may be aptly said that  it is only a step towards better law and regulation on surrogacy in India awaiting meaningful development .

[1] Surrogacy, By kuttuajeesh, May 2013, http://www.studymode.com/essays/Surrogacy-1684520.html

[2] http://www.watoday.com.au/national/mothers-for-hire-20120906-25hi1.html

[3] Inside India’s surrogacy industry, Divya Gupta, Guardian Weekly, Tuesday 6 December 2011,   http://www.guardian.co.uk/world/2011/dec/06/surrogate-mothers-india

[4]Baby Manji Yamnda Vs Union of India & Anr.,  2008(13 )SCALE 76  , 2008(11 )JT150, India Supreme Court Judgment,  http://www.indiacourts.in/BABY-MANJI-YAMADA-Vs.-UNION-OF-INDIA—ANR._3bc98bbb-8224-442c-90b9-7d1531137762

[5] Jan Balaz Vs. Anand Municipality & Ors.Letters Patent Appeal No.2151  of   2009 , http://www.indiankanoon.org/doc/1459493/?type=print 

[6]  National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India , Indian Council of Medical Research   http://icmr.nic.in/art/art_clinics.htm,

[7] Assisted Reproductive Technology (Regulation) Bill 2010, Ministry of Health & Family Welfare Government of India ,  ART Bill , http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf

[8] Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to Surrogacy, “, Law Commission , Government of India , Report No. 228. August 2009 . http://lawcommissionofindia.nic.in/reports/report228.pdf

[9] General Instructions for Registration by the Foreigners, B. – Surrogacy Cases , Ministry of Home Affairs http://mha.nic.in/pdfs/ForeigD-FRRO_version223.6.11.pdf

[10] Section  34 (3) of ART Bill 2010

[11] Section 34 (1) of ART Bill 2010

[12] Section 3 of ART Bill 2010

[13] Section 6 of ART Bill 2010

[14] Section 11 of ART Bill 2010

[15] Section 20 (14) of ART Bill 2010

[16] Section 26 (3) of ART Bill 2010

[17] Section 34 (5) of ART Bill 2010

[18] Section 34 (5) of ART Bill 2010

[19] Section 34 (2) of ART Bill 2010

[20] Section 34 (22) of ART Bill 2010

[21] Section 34 (23) of AR T Bill 2010

[22] Section 34 (2) of ART Bill 2010

[23] Section 35 (1) of ART Bill 2010

[24] Section 34 (10) of ART Bill 2010

[25] Section 34 (4)  of ART Bill 2010

[26] Section 34 (11) of ART Bill 2010

[27] Section 34 (19) of ART Bill 2010

[28] Section 34 (19) of ART Bill 2010

[29] Section 34 (19) of ART Bill 2010

[30] Section 34 (12) (14) of ART Bill 2010

[31] Section 2 cc ART Bill 2010

[32] Section 34 (1) of ART Bill 2010

[33] ibid

[34] Section 34 (3) of ART Bill 2010

[35] Jan Balaz Vs. Anand Municipality & Ors.Letters Patent Appeal No.2151  of   2009 , http://www.indiankanoon.org/doc/1459493/?type=print

[36] ibid

[37] Baby Manji Yamnda Vs Union of India & Anr.,  WP(C) No. 369 of 2008.  (2008) 13 SCC 518.  , 2008(13  )SCALE76  , 2008(11  )JT150,  India Supreme Court Judgment,  http://www.indiacourts.in/BABY-MANJI-YAMADA-Vs.-UNION-OF-INDIA—ANR._3bc98bbb-8224-442c-90b9-7d1531137762

[38] Jan Balaz Vs. Anand Municipality & Ors.Letters Patent Appeal No.2151  of   2009 , http://www.indiankanoon.org/doc/1459493/?type=print

[39] Union of India Vs. Jan Balaz  JT 2008 (11) SC 150. 13. Surrogate Motherhood ,  jaya dadhich , 16 February 2013 , http://www.lawyersclubindia.com/articles/Surrogate-Motherhood-5311.asp#.Ufkvv43IuNI

[40] Of surrogacy and the law, Aarti Dhar , The Hindu , August 1 , 2013 ,

http://www.thehindu.com/news/national/of-surrogacy-and-the-law/article4974192.ece

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