Pub. Info.- Surrogacy Bill must direct screening of couples, surrogate mother, India Medical Times, Tuesday, May 30, 2017 http://www.indiamedicaltimes.com/2017/05/30/opinion-surrogacy-bill-must-direct-screening-of-couples-surrogate-mother/
In the view of the present case before the Family Court of Mumbai being adjudicated between an Iranian intending couple and an Indian surrogate mother where in the latter alleges that the intending father is not of good character and therefore refuses to hand over the custody of child given birth by her to the Iranian national. [ PTI, 11th May 2017]
This case underlies issues of lack of screening or background check of couples , surrogate mother before entering into surrogacy arrangement but the proposed law on surrogacy namely the Surrogacy regulations Bill 2016 absents provisions on the same. Though the Surrogacy Bill 2016 in its preamble provides for regulation on surrogacy and prohibits exploitation of children born through surrogacy. Such absence of screening grossly affects interest of child, this adversely impacts on the custody and care arrangements for child which may not necessarily ensure the best interest of child.
As seen in this present Iranian national case in Mumbai, the child born of surrogacy is placed in the NGO with the surrogate mother , it may be noted that during the pendency of proceedings the child remains without parentage, despite being genetically related to the couple, this questions establishment of right to parentage , birth registration of couples and basic legal right to identity of child born of surrogacy. This plight of child born of surrogacy stands inconsistent with UNCRC which directs for registration of child immediately at birth, [Article 7 UNCRC 1989]. It is pertinent to mention that India has ratified UNCRC [ As on 11 December 1992]
In addition to the present case, similar issues of lack of screening of intending couples before surrogacy has surfaced in the recent past too in India, formerly there had been a reported case of an Israeli national commissioned surrogacy in India thereafter left the country with the girl surrogate child subsequently the Israeli authorities found that he was criminally charged for sexual abuse of children as per his past criminal records, this case was criticized by the child commission, concerned ministries in India but neither any action nor any recommendation was issued on screening of couples before commission surrogacy. [Alaska Dispatch news, June 11, 2013]
Apart from these, there have been many cases where the couple after commissioning surrogacy divorced during the term of surrogate pregnancy and after the birth of the child, this is demonstrated in case of Baby Manaji vs. Union of India [ 2008] where in the intending mother even declined to be named as one of the legal parent in the birth certificate of the surrogate child.
The Surrogacy ( Regulations) Bill 2016 is silent on screening of couples in order to assess their fitness to be parent, including their social economic background, criminal records in past, psychological or mental health, their health, age, and family information and related checks before they are permitted to commission surrogacy.
It is pertinent to refer to foreign surrogacy legislations on the same, Australia, Victoria Assisted Reproductive Treatment Act 2008 provides for “criminal records check” of all parties to surrogacy agreement by the police in order to finding any record of convictions, criminal charges outstanding against the concerned person. The Israel Surrogacy Agreements Law the Carriage of Fetuses (Approval of Agreement and Status of the New Born) Law, 1996 provides for assessment of all parties to the surrogacy arrangement regarding the “suitability of all parties to undertake the procedure”. The Hague Conference on Private International Law working towards formation of international convention on surrogacy refers to measures for “psycho-social screening, medical checks and criminal record checks of the commission couples before conduct of surrogacy”.
Apart from these foreign legislations, it may be imperative to consider the existing Indian adoption law providing for screening of potential adoptive parents by qualified social worker, preparation of a home study report following assessment before vesting custody, parentage of child .
A similar provision to this effect may be incorporated in surrogacy bill for ensuring safe custody, care, parentage to surrogate child and more in consonance with the best interest of child.