Legalities, Illegalities & Myths of Commissioning Surrogacy in India

Pub. Info. – Legalities, Illegalities & Myths of Commissioning surrogacy in India,  Kerala Law Times 2015 (3), K.L.T. – 14-9-2015,   Pg. 57 – 63.RNI No. 3057/1957,ISSN No. 0023- 0529 KLT. Citation- 2015 (3) KLT.

India is called as the ‘surrogacy capital of the world’[1].  It offers the excellent medical reproductive technologies at the relatively cheapest costs in the entire world along with  abundant availability of surrogate mothers , English speaking clinics, staff doctors, in India. One of the most unique feature of Indian surrogacy arrangement is large scale commercialization of surrogacy coupled with absence of any effective or binding statutory law on Surrogacy in India. another attractive feature is the special all inclusive surrogacy package covering not only the cost of ART Treatment but also other related costs like air port pick up, drop, local travel taxi , language translator, lawyer consultation fees, legal documentation , site seeing  among others for all foreign intending couples in India. With these favorable factors , India is witnessing rampant practice of surrogacy in India, it is estimated that surrogacy has developed as an Industry generating  US$2·3 billion annually and it continues to grow.[2]

While the practice of surrogacy multiplying tremendously , the laws regulating the same awaiting enactment and are still in pendency  and during the pendency of law , present there is no statutory law on surrogacy in India but only a draft ART Bill 2008  revised as  ART Bill 2010[3],  which is revised as the ART Bill 2013 [4]with necessary modifications or additions, On the other hand ,  a series of   legal instruments are being formulated for better regulation of surrogacy, one of such is the recent Home Ministry Guidelines 2013 directed towards the foreign nationals seeking to avail surrogacy in India. These guidelines are seeking to control the violation of Visa rules for surrogacy and redefines the eligibility criteria by permitting only the heterosexual married couples to avail surrogacy in India.

Under the absence of a binding or effective law in force , host of ambiguities , gaps, inconsistencies have surfaced among these instruments. There is no clear ascertainment of permissible legal action and prohibited legal action. The legal procedures related to the conduct of surrogacy arrangement are not well defined therefore certain myths, misconceptions, confusions have developed over the same. Under the guise of surrogacy a lot of illegal or prohibited activities are also taking place which may result or cause the parties to the surrogacy arrangement liable to punishment or which may criminalize the surrogacy arrangement and defeat the very purpose of objective of surrogacy arrangement.

Keeping with these considerations , it appears highly pertinent that these myths are necessarily corrected or clarified by elucidating the legal facts in order. Accordingly , certain popular myth related to surrogacy are identified for necessary legal correction  in compliance with law.

  1. Surrogacy is not a life style choice but only a Medical treatment in India:

India permits commercial surrogacy and permits availing the services of surrogate mother or gestational carrier in return for money. Under the Indian proposed/ draft  Surrogacy law , Surrogacy is only and strictly available to such infertile couples for who it would not be possible to conceive , gestate or deliver child in regular course and not otherwise[5]. Surrogacy under the Indian draft law is conceptualized as medical treatment to infertility to be offered only on the sufficient proof of medical infertility after the conduct of the prescribed test and diagnosis[6] .  Thus surrogacy is certainly not a life style choice or discretion or one of the ways of the couples to have children or attainment of parenthood .

2.Surrogacy is not the first but the last option to have children in India:

Availing surrogacy or commissioning surrogacy in India is taken as the most readily available  option but this is far removed from the reality or the truth.

Under the ART Bill surrogacy is made subject to a series of procedural formalities, In addition to medical test or diagnosis[7], there are other procedural formalities  firstly surrogacy is made subject to proved medical tests and counseling or diagnosis, secondly there is a counseling session for the intending couples as a pre condition for couples seeking to avail surrogacy  on  the implications of surrogacy , side affects , the success rate , the related advantages or disadvantages of surrogacy,  the cost of treatment and the  possibilities of availing surrogacy in India or in other foreign countries [8]followed with another round of counseling on the special rights accruing to the surrogate child wherein the intending couples are counseled on the right of surrogate child on attaining 18 years or adulthood to know about the birth process[9].  Alternatively there is another counseling session for the couples on the possibility of  adoption over the  option of availing surrogacy[10] . Thus, there are series of procedural formalities that must be exhausted in order to avail surrogacy in India.

iii. India prohibits Sex selective Surrogacy:

The ART Bill 2010 strictly prohibits the sex selective birth of surrogate child in India in pursuance of this, any advertisement or participation or solicitation , conducting or offering to conduct the same is made a punishable offense under this Bill[11]. Additionally there is a duty imposed on the intending couples to accept the surrogate  children as they are delivered irrespective of sex, disability or defect of any kind and refusal to accept the same by the intending couples makes them liable to punishment[12].

It may be relevant to mention the recent case of a  very popular Hindi film actor against who complaint at the  local Magistrate  court in Mumbai was filed by a Lek Ladki Abhiyaan , a NGO based in Mumbai in December 2013  for allegedly conducting sex determination test or gender test  for preferring a male surrogate child which is a violation of PCPNDT Act as well as the relevant provision of ART Bill,[13] the actor was also issued legal notice from the Mumbai High Court and necessary legal inquiries were conducted by the Brihanmumbai Municipal Corporation (BMC) in this regard[14]. Hence, it is evident that sex selective  surrogacy prohibited and punishable offense under this draft law.

3.Prohibition on availing twin surrogates or gestational carriers by the same intending couple : It is assumed that  India offers the only choice of availing the services of two surrogate mother at the same time by one intending couple to ensure maximum possibility birth of surrogate children as the successful outcome of surrogate pregnancy. This practice of availing the services of twin surrogates simultaneously is popularly called as twiblings [15]though much against the law  this is being advertised by many fertility clinics across India on their websites in order to lure more clients particularly more of the foreign clients.

The relevant provision of ART Bill strictly prohibits this, the ART Bill expressly stipulates that the intending couple are permitted to avail the services of only one surrogate at one time[16] as well  coupled with another negative  stipulation that there can not be simultaneous transfer of embryos in two or more than  one women at the same time for the same intending couples [17]

Reading from the provision of the draft law , the trend of twibling is not legal rather a prohibited practice under the law.

4.Surrogacy is not a choice for the intending couples to selectively choose or abort the surrogate child:

It is viewed that it is the choice of the intending couples to selectively abort the surrogate child as and when they feel so based on their individual discretion as they have paid for availing this surrogacy but the draft law differs on this point. The surrogacy law permits for termination of surrogate pregnancy through fetal reduction [18] only under certain defined conditions after appropriate counseling for avoiding multiple pregnancies which poses risk to the health and survival of both the surrogate mother and the surrogate child[19]. Further , the sole decision making with respect to fetal reduction is solely vested with the  doctor and not with the intending couple.

This is also a misconceived notion that it is the discretion of the intending couples that they may  refuse to take the custody of child if delivered  with any abnormality or defect or being more than one in number subsequent to birth of the child. To the contrary , the Bill makes it legally mandatory on the part of intending couples  to accept the custody of surrogate child as they are born despite their health condition and number and refusal to comply with the same makes it a legally punishable offense in India under the law.

5. Surrogate mothers  are not allowed to breast feed  the surrogate child:

India has legalized commercial surrogacy  accordingly  the law permits the gestational services to be availed in return for monetary payment[20]  but not the nursing services of surrogate mothers

Indian ART Bill prohibits the surrogate mother from breast feeding the surrogate child by making the immediate surrender of the custody of surrogate child by the surrogate mother to the intending couples at the birth and complete relinquishment of all guardianship rights over the surrogate child[21] thus the surrogate mother is prevented from breast feeding the surrogate child. Though this provision is criticized as it amounts to depriving the surrogate child from the most significant nutrition leading to hampering early growth and development of child.

Alternatively, the fertility clinics or doctors recommend the alternative options of Breast Banks, Formula feeds . Along with the option for the intending mother to undergo hormonal treatment for the production of milk in order to breast feed the child self.

6. Surrogacy agreement is not universally legally binding instrument:

The ART Bill or the draft law provides for entering into surrogacy agreement by the intending couples and the surrogate mother[22] in order to initiate the surrogacy arrangement and gives legally being effect to this agreement within India . The Supreme court judgment of India in the landmark case of Baby Manaji [23] upheld  the surrogacy agreement as the governing instrument wherefrom the rights and obligations of both parties arise in the absence of a binding law .

But this agreement is not binding outside India or in foreign nation and thereby the agreement may not have any legal effect rather it is a void.  Accordingly the terms and conditions of the agreement have no effect as well. This may led to legal complexities or issues or complications and render the enforceability of surrogacy arrangement and the enforceability of legal rights and duties from the agreement questionable! Hence, it is recommended that the foreign intending couples may consult the Embassy of their respective nations on the nature , enforceability of surrogacy agreement to avoid unnecessary legal hassles in future.

7. Surrogacy in India does not  offers designer child:

The Indian draft surrogacy laws permit the couples to avail  or  outsource  both  the gamete  donors  ( samples )who may be either as anonymous individual or a friend family of the couple in return for monetary compensation thus  implying that  the intending  couples need not necessarily be the genetic parent or  donors of the gametes   in all cases .

The ART Bill , the drafts surrogacy law in India permits for selection of gamete donors by the intending couples with due assistance from the ART Bank and correspondingly there is duty imposed  on the ART Banks [24]  to maintain the records or profiles on the gamete donors and assist the couple  [25] . The Bill also permits the import of frozen sperm subject to necessary consent. The main objective of such provision is for therapeutic purpose or treatment purpose to ensure the surrogate child is healthy and disease free.  Hence , similar  practice of selectively choosing or outsourcing the gametes from the beautiful models  , athletes so as to ensure the surrogate child is gifted with special attributes like blue eyes , blonde hair white skin, exceptional intelligence quotient , sporting strength for creating not a normal child but a child with exceptional features thus the crating a designer child for themselves are banned. But at the same time , the draft law imposes a restriction on the choice of donors based on individual information the skin color , ethnicity among others[26] this is to ensure that the choice does not constitute discrimination on , race color , ethnic grounds. Such provision is in keeping with the bio medical ethics. It is imperative under the law that surrogacy promise birth of a child but not designer child.

8. Foreign Homosexuals , Singles , Live in Partners are not allowed to avail surrogacy in India:

With the recent  Home Ministry Notification of the year July  2012[27], all foreign homosexuals are not  permitted  to commission surrogacy in India, under these guidelines , only the married heterosexuals foreign couple are permitted to avail surrogacy in India and lays down or prescribes  other necessary VISA conditions to be satisfied  in this regard.

Though the provision of the ART Bill 2010 permits surrogacy for all including single , homosexuals , Live in partners with the use of permissive or liberal terms like relations in nature of marriage, or individuals or couples or partners or all[28] . But this Home Ministry Notification imposed strict restriction on the same and the latter has been given immediate effect since notification and held binding over and above any such regulation or guidelines of  Bill in this regard.

The recent case   involving a sudanese singe national before the Punjab Haryana HC  of April  2014    expressly held the Home Ministry Guidelines as the binding law and over and above any other regulations in this regard and in compliance of this law / Guidelines refused the single from availing surrogacy in India and reinforced Home Ministry Guidelines[29].

The law as it stands today , at present, only  the married couples both the foreigners and nationals  are permitted to avail surrogacy in India not the homosexuals either Indian or foreign.

9.Surrogate child born in India are not take home babies:

Indian draft surrogacy law  provides for direct naming of the intending parents in the birth certificate of the surrogate child  [30]thus  vesting  the legal parentage of the surrogate child with the intending parent at the time of birth. Prima facie , it appears as the most comprehensive and the most definite approach to the ascertainment or determination of parenthood , but there are many limitations and legal issues in the same.  Though within the geographical territory of India such birth certificate may have legal effect  , but  this may not receive legal recognition , enforceability of  birth  certificate (issued to the surrogate child  in India)  in other foreigner jurisdiction,  depending on  the permissible or prohibitory nature of surrogacy law existing in such foreign legal jurisdiction .

On these lines of inconsistent surrogacy laws, it may be appropriate or pertinent to mention the landmark case of the Japanese surrogate child Baby Manaji[31]  who was born to a Japanese couple in India in the year at Anand in Gujarat but subsequent to birth while seeking travel documents including VISA permit for the surrogate child  , the determination of legal parentage of the surrogate child came in question , which was met with serious legal glitches due to the inconsistencies in the legal regime  of two nations  namely India and Japan  as surrogacy  laws of two nations came into conflict as India  permitted commercial surrogacy and the Japan prohibited surrogacy, further Japan recognized only the birth mother as the legal mother where as India recognized intending mother as legal mother not the surrogate mother. Japan refused to recognize the legal parentage of the intending couple over the surrogate child  and also refused recognize the birth certificate issued to the surrogate child in India. In that case , during the entire pendency of legal suit which continued for several months the surrogate child ‘s  was left parentless and stateless.

Considering such inconsistency or differences in law and the pursuant legal complications, The ART Bill under relevant provision  lays down special procedure for the foreign intending couples[32] seeking to avail surrogacy in India and provides for a list of necessary documentation and consent required from foreign embassy of the concerned nation permitting or granting legal recognition to such surrogacy arrangement or  surrogate child born in India along with a host of basic civil rights guarantee including entry of such surrogate child in the foreign country, issue of travel documents including VISA , Passport and other legal civil  rights guarantees for the surrogate child to equate his or her status with any  other child of the concerned foreign nation.

The same is reinforced with the Home Ministry Guidelines [33]which also provides for furnishing similar documentation and evidences from the foreign embassy in order to ensure the safe exit of surrogate child .

Hence it is suggested that despite the birth certificate being issued in India , consultation with the foreign embassy and necessary consent from the  Embassy of foreign nation is required before entering into surrogacy agreement so that the surrogacy does not cause legal complications subsequently .

10. Foreigners can not avail surrogacy on Tourist VISA in India:

As much as India is promoted as the hub of reproductive tourism destination or surrogacy destination, but  it does not permit the foreigners to avail surrogacy or commission surrogacy in India on tourist VISA. But permits only medical visa for availing  surrogacy in India. this is in compliance with Home Ministry Guidelines[34] under which the foreigners are strictly required to seek Medical VISA for the same and use of tourist VISA for same is a violation of VISA norm in India and makes such  couples liable to punishable offense and legal actions.

Ending Remarks :

The list of these identified legal and illegalities mentioned , is not an exhaustive list but an illustrative attempt ,there may be a range of illegalities which are being practiced under the garb of surrogacy in the absence of an effective , binding law.

It is also important to observe that the legal void has resulted in ample scope for misuse of law as mentioned above, hence an early statutory enactment on the same with necessary regulatory control mechanism is required to ensure that surrogacy is commissioned in India for legally intended purposes and not otherwise.

[1] First person, the guardian weekly, India’s booming surrogacy business,  30 December 2009, http://www.theguardian.com/world/2009/dec/30/india-women

[2] Priya Shetty, India’s unregulated surrogacy industry,The Lancet, Volume 380, Issue 9854, Pages 1633 – 1634, 10 November 2012,  http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(12)61933-3/fulltext

[3] 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].

[4] Assisted Reproductive Technology (Regulations) Bill 2013, §2 (zj), (Tentative Draft) Date Jun. 27, 2013, Legislative Department, Ministry of Law & Justice, Government of India [hereinafter ART Bill 2013].

For supporting documents, see also, 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);

see also Teena Thacker, After 5 Years, Surrogacy Bill Waits For Its Chance, ASIAN AGE, Feb 22, 2014, available at http://www.asianage.com/india/after-5-years-surrogacy-bill-waits-its-chance-212 (last visited Feb. 15, 2014);

[5]  ART Bill 2010, supra note 1 at §  20 (10) .

[6] ART Bill 2010, supra note 1 at §  20 (11)

[7] ART Bill 2010, supra note 1 at §  20 (10) ( 11)

[8]ART Bill 2010, supra note 1 at §  20 (6)

[9] ART Bill 2010, supra note 1 at §  20 (7)

 

[10] ART Bill 2010, supra note 1 at §  20 ( 6)

 

[11] ART Bill 2010, supra note 1 at §  37 (1) (3)

 

[12] ART Bill 2010, supra note 1 at §  34 (11)

 

[13] PTI Mumbai, Case filed against Shah Rukh Khan for gender test of surrogate son AbRam, indianexpress, Aug 09 2013, http://archive.indianexpress.com/news/case-filed-against-shah-rukh-khan-for-gender-test-of-surrogate-son-abram/1153303/

 

[14] PTI Agencies , HC notice to Shah Rukh Khan, BMC in sex determination case, thehealthsite, December 9, 2013 http://www.thehealthsite.com/news/hc-notice-to-shah-rukh-khan-bmc-in-sex-determination-case/

 

See Also, PTI,  Agencies, Notice to Shahrukh Khan in pre-natal sex test case, Times of India,  Dec 9, 2013, http://timesofindia.indiatimes.com/city/mumbai/Notice-to-Shahrukh-Khan-in-pre-natal-sex-test-case/articleshow/27106961.cms

[15] Poonam Taneja, The couple having four babies by two surrogates, BBC Asian Network, 28 October 2013, http://www.bbc.com/news/uk-24670212

[16] ART Bill 2010, supra note 1 at §  34 ( 20)

 

[17] ART Bill 2010, supra note 1 at §  34 (21)

 

[18] ART Bill 2010, supra note 1 at §  2 (o)

 

[19] ART Bill 2010, supra note 1 at §  23 (5)

 

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

 

[21] ART Bill 2010, supra note 1 at §  34 (4)

 

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

 

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

 

[24] ART Bill 2010, supra note 1 at §  20 (2) (3)

 

[25] ART Bill 2010, supra note 1 at §  26 (12) , 28 (1)

 

[26]ART Bill 2010, supra note 1 at §   20 (4)

 

[27] 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);

 

 

[28] ART Bill 2010, supra note 1 at §  32 (1)

 

[29] Ajay Sura, Restriction on medical visa for surrogacy: HC summons ICMR, MHA officials on Sudanese national plea TNN , Apr 1, 2014 http://timesofindia.indiatimes.com/city/chandigarh/Restriction-on-medical-visa-for-surrogacy-HC-summons-ICMR-MHA-officials-on-Sudanese-national-plea/articleshow/33066265.cms

See Also , Dr Samit Sekhar, Petition to allow Singles to access surrogacy programs in India picks up pace., http://highcourtchd.gov.in/interim_order/io_data/CWP_15490_2013_02_04_2014_INTERIM_ORDER.pdf

 

[30] ART Bill 2010, supra note 1 at §  34 (10) , 35 (7)

 

[31]supra note  at  21.

 

[32] ART Bill 2010, supra note 1 at §  Section 34 (19)

 

[33] supra note  at 25

 

[34] supra note  at 31

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