Rising Trend of Celeb Surrogacy– Legal void & issues pending Surrogacy legislation in India

Pub. Info- Rising Trend of Celeb Surrogacy Legal Void & Issues Pending Surrogacy Legislation in India, Flair Talk ISSN No 23349 – 6649, September 2016, Vol 3 Issue 7, Pg. 36- 37.

Though surrogacy has been permitted and practiced under medical tourism policy since the year 2002 in India, coupled with formulation of Indian Council of Medical Research Guidelines (ICMR) 2005 which lays down the permissible standard of conduct of surrogacy in India. The proposed legislation on surrogacy namely the Assisted Reproductive Technology Bill is awaiting enactment for close to a decade following its first formulation in the year 2008 coupled with successive revision in the year 2010, 2014 respectively.  Meanwhile, surrogacy has been legalized in India through the Supreme Court pronouncement in the case of Baby Manji vs Union of India. [AIR 2008 SC 1554]. Since then, there has been increase in number of celebrities including film actors, socialites commissioning surrogacy to have children taking advantage of the present context of absence of legislation, nil binding regulations or preconditions for the same. To name a few, the popular league of Khan Actors in Hindi film industry have resorted to surrogacy. A leading Hindi film actor Amir Khan (46) in his second marriage with his film maker wife Kiran Rao (38)  had their surrogate male child Azad Rao at Mumbai in the year 2011. Film actor Sohail Khan Salman Khan’s younger brother had his second surrogate male child Yohan in the year 2011.Popular hindi film actor SRK (47) had his third surrogate male child named Abram at Mumbai in the year 2013.  Recently, the issue of “celeb surrogacy” resurfaced with the recent case of Tusshar Kapoor (39) , Hindi film actor who commissioned single parent surrogacy resulting in birth of a surrogate child named Laksshya at Mumbai on June 2016. Thus This celebs commissioning surrogacy is a steady growing trend.

This has huge influence on mobilizing public opinion and popularizing surrogacy as one of the modern day means of family formation as a personal life style choice irrespective of medical necessity for career reasons in return for monetary payments just as any other market services thereby reinforcing the notion that surrogacy may be availed by rich affluent celeb class in return for commercial returns.

It is significant to consider the cases of celeb surrogacy as it demonstrates certain commonly shared attributes, accordingly it has set a trend these may be reiterated here briefly,

  • Late age or Delayed parenthood –– A common trait in all the celebs commissioning surrogacy is that these celebs resorted to surrogacy at a late age around their late forties or fifties, at this age the natural biological capacity to conceive is impaired with or without any medical ailments therefore at this age the inability to conceive is not necessarily owing to medical ailment or ill health but a natural state of health. Many celebs due to their career reasons as a conscious choice prefer to delay the parenthood or child bearing at a later age to suit their own convenience, life style. Thus in these celeb cases, commissioning surrogacy is for reasons other than medical.
  • Not necessarily childlessnessAn important fact to consider is that majority of the celebs who commissioned surrogacy are not necessarily childless, they already had children from their previous wedlock or the existing one, and rather these celebs resorted to surrogacy in either in their second marriage or to have their second or third child towards family expansion.
  • Client surrogacy rather patient surrogacyThe cases of celeb surrogacy appears as client based surrogacy not necessarily patient as the term patient includes such individual or couple who have failed attempts of conception having undergone tests, infertility treatment but in cases of celebs this medical condition of failure to conceive may not be necessarily held true, considering late age, delayed parenthood decisions. On the contrary, they are held as client as they hire and avail this medical technology just as any other commercial services at their convenience solely in return for monetary payment following their preferences or convenience.

In the light of this trend of celebs surrogacy there are a host of implicit legal issues which are unaddressed under the Bill, some of these are discussed below.

Legal issues raised by celeb surrogacy cases –

  1. Surrogacy for medical necessity or life style choice – These celeb cases make a good case for identifying the gaps in the ART Bill regarding the eligibility criteria to be complied before commission surrogacy in India, if surrogacy is permitted only for medical reasons or as a personal life style choice in India at present, in this regard it is imperative to consider relevant provisions of ICMR medical guidelines, ART Bill which provides that “Surrogacy should be considered only for patients for whom it would be physically or medically   impossible  to carry a baby to term”.  The bill prescribes a series of medical tests to prove medical infertility as pre condition to commission surrogacy. Besides the Bill provides for counselling on a range of infertility treatments along with the alternative of adoption, accordingly surrogacy is permitted only for reasons related to medical necessity and in certain specified medical conditions only for such infertile couples who could not attain parenthood through any other means.

2. Eligibility status of stakeholders- married or single –  The case of celeb surrogacy also raises issues regarding the eligibility status of stakeholders to commission surrogacy, revisiting the Tusshar Kapoor case which highlighted the issue of single parent surrogacy in India in the backdrop of any binding laws on surrogacy, nil screening for same. While the ICMR guidelines permits surrogacy for married, unmarried. Similarly, the ART Bill 2010 provides all persons including single persons, married couples and unmarried couples, but the ART Bill 2014 provides that “the option of surrogacy to only Indian heterosexually married infertile couples” only. Thus it’s ambiguous if availing surrogacy is based on the marital, celibate status of an individual or otherwise!

In pursuance of these issues, in the landmark case of Baby Manji Vs Union of India, the Supreme Court of India in the course of adjudication mentioned both “medical reasons and non-medical or reasons” for commissioning surrogacy. The apex court even states that the “intended parent may be a single individual”, thus it remains open to commission surrogacy for either reasons as well as for either category of stakeholder. The judicial pronouncement falls short of laying down any uniform directive or stipulation on the same.

On the contrary, it must be noted that Shihabeldin, a Sudanese national sought to attain single parenthood through surrogacy at a medical facility in Chandigarh  was denied the same on the ground of Ministry of Home Affairs (MHA) Guidelines 2012 which restricts the choice of availing surrogacy only to such foreign heterosexual couples who are married for a minimum period of two years on appropriate Medical VISA thereby excluding single, unmarried, foreign nationals and unmarried couples to commission surrogacy. [TNN, Apr 1, 2014,]  Unlike the Tushar Kapoor case , this case marks a prohibitory approach towards  foreign single present surrogacy.

iii. Unethical, Illicit use of medical technology – Another crucial concern arising out of or related to celeb surrogacy is that these are used to disguise illicit use of technology for varied unethical purposes as causing sex selective surrogacy, designer or eugenic surrogate child. One of such case of designer surrogate child surfaced in the case of world’s most popular American pop singer Michael Jackson who had his third surrogate child named Prince Michael Jackson II after personally selecting the egg donor, surrogate mother based on their latin American gene pool, fair skin, race among other and accordingly paid a huge sum to surrogate mother, donor respectively. [ Mirror UK, Aug 12, 2009]

Another issue commonly observed in all these celeb surrogacy case is that there is birth of only male surrogate child. In this regard it may be noted that in case of film actor SRK (47) who had his third surrogate male child Abram, the actor had been issued legal notice from the Mumbai High court facing a complaint by a NGO for commissioning sex selective surrogacy by conducting sex determination test for violation of PCPNDT Act.  [The express tribune,  October 22, 2013

Other Unresolved issues –

This trend of celeb surrogacy throws up other unresolved legal issues and brings to light some of the lapses existing in the ART Bill.

if single parent surrogacy for celeb is allowed applying the same rationale accordingly single same sex individuals, live in partners, transgender or ever married women including divorcee, widow should also be allowed to commission surrogacy, the statutes if such potential stakeholders  remains unaddressed!

The stipulation on the minimum and maximum age limitation, particularly the upper age limit on the attainment of which or beyond which a couple or individual may not commission surrogacy, this is important considering the late age of couples and the best interest of child including development, growth or the permissibility on the number of attempts for the same couple or  individual to commission surrogacy in their life time also needs to be specified. These issues require consideration and resolve.

At the outset it may be suggested that the enactment of a statutory law on surrogacy is the need of hour for laying down the necessary eligibility requirements, preconditions to commission surrogacy as well as to curb unethical, illicit practices under the guise of surrogacy, to check any privileged and unfair advantage of absence of law so that surrogacy is practiced and availed for socially ethically desirable and beneficial purpose in society.

A progressive development towards this is the recent Government declaration that a novel Surrogacy Bill 2016 is drafted which is awaiting enactment soon. Let the law takes its course in the right direction.

 

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