Commissioning surrogacy in India legal & Policy considerations

Pub. Info- Commissioning surrogacy in India, (cover story), LawZ , Vol. 15, No 7 , Issue 167, July 2015, Pg.no 26-28. RNI . No. DELENG/2001/5379.http://www.lawzmag.com/index.php/read-articles/25-commissioning-surrogacy-in-india.

India is known world wide for its permissive and liberal jurisdiction on surrogacy. Commercial and cross border, gestational and heterosexual surrogacy is legal and practiced in India. It is estimated that India’s commercial surrogacy is worth $ 2.5 billion dollar industry producing nearly 2,000 surrogacy children including domestic and foreign couples. There is rampant practice of commercial as well as cross border surrogacy in India and a booming business of ART Industry including surrogacy in India. Accordingly India is called “the world capital of surrogacy”.

Medical Development of ART Technology Surrogacy in India –

India has made inroads into the medical development of In vitro fertilization in the tandem with the world’s first ever successful discovery of IVF technology.  While the world’s first surrogate child “Louise Brown” was born on 25th July 1978 at the hands of Robert G Edward and Patrick Steptoe, India made the mark in the world with discovery of with the mark of the epoch making birth of the world’s second and India’s first IVF child in India named Kanupriya Agarwal ( Durga) at the hands of late Dr. Shubash Mukherjee  on October 3, 1978.

Reproductive tourism policy 2002 – Surrogacy as infertility treatment –

Though India has no statutory law or a binding Act at present to regulate on surrogacy in India.  Surrogacy as commercial form had been practiced in India since 2002 as infertility treatment under the Government of India Ministry of Tourism Policy.

The Judicial Pronouncement – Baby Manji Yamada v. Union of India –

In the year 2008 , formally the highest court of the country, the supreme court of India in the case of Baby Manji Yamada v. Union of India, (AIR 2009 SC 84; (2008) 13 SCC 518) held commercial surrogacy legal in India. In the subsequent case on similar point the Gujarat High court in the case of Jan Balaz v. Anand Municipality and Ors., ( AIR 2010 Guj 21 ) upheld and reiterated the apex court ruling.

Proposed Regulatory & Legislative Instruments : ICMR Guidelines 2005, ART Bill 2008, 2010 –

In India surrogacy regulations are laid down by the medical guidelines namely “National Guidelines for Accreditation, Supervision & Regulation of Assisted Reproductive Technologies (ART) Clinics”  by Indian Council of Medical Research (ICMR ) , Ministry Of Health Family Welfare Government of India in the year 2005  coupled with the draft law on surrogacy  modeled after the medical guidelines namely the “Assisted Reproductive Technologies (ART) Bill by ICMR, Ministry of Health & Family Welfare Government of India” in the year 2008, then  revised in the year 2010. The former provided the medical standard for the conduct of surrogacy arrangement and the latter is a proposed law taking after the former and enumerates the rights, obligation of all the stakeholders in the surrogacy arrangement namely the surrogate mother, couple and the child, the ART Clinics and the ART Banks and the incidental issues towards formulating a comprehensive statute awaiting enactment. Some of the essential propositions of the Bill and Guidelines are reiterated for better understanding of commissioning surrogacy in India.

i.There are minimal requirements or preconditions to be complied for commissioning surrogacy in India. The couples seeking to avail ART treatment or surrogacy must have attained 21 years and satisfy the medical need for the same through necessary medical tests . Thus social surrogacy as a life style choice on any ground other than medical is not allowed.

ii.The couple may seek assistance of the ART Clinic for screening, counseling on the nature , implications of treatment undergoing infertility treatment but  also for procuring  surrogate mother , egg donor, the ART Clinics at the instance of the couple further request the ART Banks who maintain sufficient records on the same.

iii.In India surrogacy may be commissioned by the couples by availing the gestational services of Indian women in return for monetary payment including all expenses related to Surrogate Pregnancy through entering into a surrogacy agreement with the surrogate mother and her husband to the exclusion of an third party including the clinic. This surrogacy agreement is legal and binding within India, but the legal recognition or validity of this agreement outside the in foreign legal jurisdiction may be questionable,

iv.There is no maximum and minimum payment stipulated to be paid to the surrogate mother rather it is to be negotiated between the coupe and the surrogate mother under the agreement among other particulars .

v.The surrogate mother may undergo upto three attempts of embryo implantation for the same couple for a fixed sum of payment for each of these attempts respectively.

vi.Import of gametes is permissible in India and use of anonymous gamete donors for monetary payment is permissible in India.

vii.One of the most favorable feature of Indian surrogacy is that the birth certificate issued in India for the surrogate child names the intending couple who commissions surrogacy as the legal father and mother ( to the complete exclusion of surrogate mother and her husband )without obtaining  any further  court order, approval  or any proof of biological, genetic connection between the surrogate child and the couple. Thus the legal parentage is vested with the couple.

viii.Surrogate mother is duty-bound not to engage in any act that would harm the foetus (surrogate child) during pregnancy and then immediately at birth Surrogate mother must mandatorily handover the custody of surrogate child to couple by relinquishing or waiving all rights or claims over the surrogate child.

ix.The intending couples are under legal obligation to accept the custody of the surrogate child as born irrespective of numbers as twins , triplets , health condition and refusal to accept the custody of surrogate child is a punishable offense in India.

x.Though twibling is secretly practiced, under the Bill, medical guidelines a couple is prohibited to avail the gestational services of two surrogate mothers at the same time.

  1. Sex Selective surrogacy or family balancing through surrogacy is not permitted in India.

Specific Mandatory Guidelines for foreign nationals commissioning surrogacy in India on or after year 2012-

While the Medical Guidelines and ART Bill have no binding force but the Home Ministry Guidelines have been held to strictly legally binding and for any breach or infringement of same is deemed as punishable offense. The most crucial legal safeguard before commissioning surrogacy in India for foreign nationals is to ensure strict compliance with the Home ministry Guidelines to avoid any future legal hassles.

The Government of India, Ministry Of Home Affairs , (Foreign Division)  have issued the “Home Ministry Guidelines regarding conditions for grant of VISA to foreign nationals intending to visit India for commissioning surrogacy of the year 2012”. This guidelines applies only to foreign nationals seeking to commission surrogacy to satisfy the motioned requisites.

a.The first and foremost requisite is that  only such foreign heterosexual couples who are married  for two years and above are permitted to commission surrogacy in India thus same sex partners,  single foreign national are not permitted to commission surrogacy  in India.

b.The couples must obtain Medical visa not tourist visa for commissioning surrogacy.

c.The couples must obtain the letter from the concerned embassy of the foreign national providing for legal recognition to surrogacy arrangements  and guarantee of legal, civil rights, necessary permit for entry , travel documents for the surrogate child born overseas within their jurisdiction same as the normal biological child of the couple.

Present Development – Revised ART Bill 2013 –

At the outset ,  despite these regulatory instruments the proposed law as Bill on surrogacy is undergoing a series of changes. Thus till the law comes in effect the surrogacy in India is facing a legal void and giving rise to host of legal complications in the pendency of clearly defined law. As recent as year 2013 the ART Bill has been revised with necessary modifications and this is awaiting legislative approval for enactment as India’s long due surrogacy legislation. Hence the legal position remains unclear and subject to change till a statute comes in effect.

References–

“National Guidelines for Accreditation, Supervision & Regulation of Assisted Reproductive Technologies (ART) Clinics”  http://icmr.nic.in/art/art_clinics.htm

Assisted Reproductive Technologies (ART) Bill by ICMR, Ministry of Health & Family Welfare Government of India http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf

Baby Manji Yamada v. Union of India, (AIR 2009 SC 84; (2008) 13 SCC 518) http://indiankanoon.org/docfragment/854968/?formInput=baby%20manji%20yamada

 

 

 

 

 

 

 

 

[1] Sonali Kusum , Ph.D Research Scholar NLSIU Bangalore, BA LLB, LLM, Pg.Dip Social Work .

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