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Ten Pointers Guide to Women’s Right to Abortion or Termination of Pregnancy Law in India-

1.Abortion or termination of pregnancy is legal, permitted and practiced in India. The Medical Termination of Pregnancy ( MTP) Act, 1971 legalizes Abortion or termination of pregnancy. The Medical Termination of Pregnancy Act is amended by the MTP ( Amendment) Act 2014.

2.The Medical Termination of Pregnancy Act extends to the whole of India except the State of Jammu and Kashmir.

3.Right to seek an abortion is an essential reproductive health right  for woman in India both at national and international level.The right to reproductive health of mother is held as one of the  inalienable survival rights of women that form part of the right to life under Article 21 of the Constitution as well as the right of women to seek abortion is reproductive choices which is a dimension of  privacy ,`personal liberty’ under Article 21 of the Constitution of India.  [  Suchita Srivastava & Anr vs Chandigarh Administration ( 2009)  , Bhupinder Kumar vs Angrej Singh (2009).] Right to seek an abortion is a right of women under international human right convention, The UN Committee on the Elimination of Discrimination against Women (UNCEDAW) 1979 recommends states parties to ensure appropriate services in connection with pregnancy including allowing women right to seek abortion, and promote safe motherhood services. India has ratified UNCEDAW as on  9 July 1993 hence India has treaty obligation to give effect to the same.

4.Termination of pregnancy is defined to include procedure to terminate pregnancy by using medical or surgical methods.

5.The MTP ( Amendment) Act 2014  grants every Indian women a conditional and limited right to seek abortion subject to the specified time periods and other prescribed conditions in the statute ( MTP Act)  but this is not absolute right.

6.The MTP ( Amendment) Act 2014  states that a pregnancy upto 12 weeks may be terminated on the request of the pregnant women by registered health care provider. Termination of pregnancy upto 12 weeks is permissible on “request of woman”, this allows single, unmarried  women, live in women partner to avail means to safe termination of pregnancy on her own accord subject to prescribed condition in the bill.  This is a preventive checks against women resorting to unsafe, quacks to terminate the same.  Further pregnancy may be terminated upto 20 weeks following medical opinion of a registered health care provider, here the number of qualifying opinion of medical practitioners is reduced to “one registered health care provider, whereas under the earlier MTP Act 1971 provided for two medical practitioners. Subsequently termination of pregnancy upto 24 weeks may be terminated on the ground of grave injury physical or mental health of pregnant woman, physical or mental abnormalities, substantial risk to the child including  physical or mental abnormalities, serous handicap and in case of pregnancy caused by rape, failure of family planning devices to limit the number of children, substantial foetal abnormalities.

Several recent case law instances where abortion is permitted beyond twenty to twenty four weeks, in Mrs. X & Others Vs. Union of India & ors.  [2017], the Supreme Court (SC) allowed a Mumbai based woman to terminate 21 weeks pregnancy on the ground  of foetal abnormality following absence of kidney in the same. In Meera Santosh Pal others Vs. Union of India & ors. [2017 ], the SC permitted termination of 24-week pregnancy as the foetus was diagnosed with anencephaly bearing imminent risk to life. In Ms. X vs Union of India & Ors. [2016] SC allowed a rape victim to terminate  24 week pregnancy.  Hence this extended time limit of 24 weeks better protects the interest of pregnant woman. However there is an exception to this rule of limitation of time period when termination of pregnancy is immediately necessary to save the life of pregnant women.

7.Termination of pregnancy may be performed by the registered health care provider implies medical practitioner qualified under the Indian Medical Council Act, 1956 and whose name has been entered in a State Medical Register for the same. The registered health care provider  includes ayurved acharyas, homoeopaths, unani, siddha, homeopathy, auxiliary nurse, mid wifery” in addition to gynaecologist  and obstetricians. This offers greater accessibility and choice of reproductive health care services to women in India.

  1. Abortion or Termination of pregnancy may be conducted at a hospital established or maintained by Government or a place approved by Government for the same. This ensures appropriate, safe maternal health care services to women in India.
  2. The MTP (Amendment) Act 2014 directs the health care provider to not reveal the name and other particulars of women subject to abortion, thereby ensuring protection of privacy of women subject to abortion.
  3. Termination of pregnancy by person other than not registered health care provider or in a place other than hospital established or maintained by Government is offences punishable with two years which may extend to seven years and fine.

 

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Surrogacy Bill should address health safeguards

Surrogacy Bill should address health safeguards: Sonali Kusum, Ph.D Research Scholar NLSIU Bangalore.

Maternal mortality of surrogate mother and lack of reproductive health safeguards in Surrogacy Bill, Economic TimesETHealthWorld  |  June 27, 2017, 06:19 IST available at http://health.economictimes.indiatimes.com/news/policy/surrogacy-bill-should-address-health-safeguards-sonali-kusum/59329910

The proposed surrogacy (regulation) bill 2016 emphasizes on controlling exploitation of surrogate mother but lacks reproductive or maternal health safeguards for surrogate mother. This assume greater significance following landmark judicial pronouncement in Laxmi Mandal vs Deen Dayal Harinagar Hospital ( 2008) declaring maternal or reproductive health as facet of right to life under article 21, read with directive principles of state policy ( article 42 ) imposing obligation on state to uphold safe motherhood under Indian constitution.
Unlike normal pregnancy, surrogate pregnancy involves hormonal treatment, in vitro fertilization (IVF) technique accordingly carries aggravated health risks as negative hormonal drug reaction, nausea, vomiting, stomach pains, swelling, shortness of breath, ovarian hyper stimulation syndrome (OHSS) leading to maternal mortality among others. There have been a few reported cases of death of surrogate mother Easwari (30) died of excessive bleeding after giving birth to surrogate baby at a surrogacy clinic in Coimbatore Tamil Nadu in 2009yr. Another surrogate mother Premila Vaghela (36) died in eight month of her pregnancy following a similar condition as pre-eclampsia while giving birth to a premature surrogate child in Gujarat. A Jharkhand based women, Ranjeeta Lal (29) was forced to be surrogate for her sister-in-law’s baby by her husband and in-laws, she died of a massive heart attack while giving birth to a boy at Ranchi.. These cases further worsens the maternal mortality rate ( MMR) of India which is highest in the world.
The surrogacy bill 2016 provides for insurance of surrogate mother only. The Surrogacy bill lacks post delivery care for surrogate mother. The surrogacy bill does not prescribe permissible number of embryo transfer , cycles of IVF, these are left to be prescribed under the rules subsequently. Nor does the surrogacy bill refer to performing of multiple pregnancy, foetal reduction.
It may be noted that the surrogacy bill 2016 appears retrograde as compared to the earlier Assisted Reproductive Technology (ART) Bill 2014 which provides for life of surrogate mother to be protected over the life of unborn child in life threatening situation [ART Bill 2014 Section 60 (30)]. Imposing liability on clinic in case of death or disability of the surrogate mother, it shall be presumed to have been caused by the negligence of the assisted reproductive technology clinic unless proven otherwise [Section 60 (34) (a) ART bill 2014]..This generates accountability on the ART clinic towards surrogate mother and checks scope for medical malpractices or misuse of technology. Additional compensation in case of death of surrogate mother for the surviving children and family of surrogate mother. [ ART Bill 2014 Section 60 (29) ]. This is particularly relevant in case of surrogate mothers who is single parent as widow or divorcee, as her child runs the risk of being orphaned.
There is no provision in the surrogacy bill 2016 on registration of woman in the hospital as acting surrogate mother for the concerned couple and ART treatment performed, medication administered to surrogate mother. Though the earlier ART Bill 2014 provided for similar provision. Consequently there is no record on total number of MMR in case of surrogate pregnancy annually in India.

Though the surrogacy bill 2016 provides for conduct of abortion or medical termination of pregnancy which is a statutory right of every Indian women as per the prescribed conditions in Medical termination of Pregnancy (MTP) Act but this surrogacy bill makes abortion conditional upon obtaining authorisation from the appropriate authority before performing abortion. This is unjustified abridgment of the statutory reproductive health right of women and unnecessarily procedural. Besides, obtaining such authorisation may impede urgent medical intervention to save the life of surrogate mother thus may act against the interest of surrogate mother.
In light of above, the condition of surrogate mother remains vulnerable to health exploitation, therefore surrogacy bill needs reconsideration and effective measures to curb the same.

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Surrogacy Bill must direct screening of couples, surrogate mother

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.

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No concern for surrogate mother’s own children in Indian Surrogacy Bill

Pub. Info. No concern for surrogate mother’s own children in Indian Surrogacy Bill ETHealthWorld  |  June 02, 2017, http://health.economictimes.indiatimes.com/news/policy/no-concern-for-surrogate-mothers-own-children-in-indian-surrogacy-bill/58954663

While India is on the verge of enactment of Surrogacy (Regulations ) Bill 2016 seeking to control exploitation of Indian surrogate mothers.  However the Bill omits safeguards to protect interest of surrogate mother. One of such omission is the custody, care for surrogate mother’s own children during the course of surrogate pregnancy.

The Surrogacy Bill under the prescribed conditions stipulate that a women in order to be surrogate mother must have at least one child of her own but there is no provision in the bill regarding care and support for surrogate mother’s own child. On the contrary, the surrogate mothers in India stay at the surrogate hostel, dormitories, shared apartments or such other arrangement as provided by the infertility or ART clinic thus staying away from her own home, family, children  for the entire duration of surrogate pregnancy. Considering the poor socio economic background of Indian surrogate mothers who live barely above the poverty line, their living conditions may be unhygienic, prone to diseases, infection, they may fail to maintain a healthy diet, regular medication on their own therefore for safe, successful pregnancy and better health of surrogate mother and the foetus (surrogate child)  such stay arrangements are deemed necessary in Indian context. However this separate, alienated stay arrangements questions the custody care of surrogate mothers’ own children for almost a year.

It is observed that the majority of surrogate mothers are within the age group of twenty five to thirty years with at least one child in the infancy stage ranging from zero to five years. During this age the child has special health needs, therefore custody, care of mother is necessary for early growth development of child. Separation of child may cause physiological, psychological impact and this may affect the  development of child.  For these reasons even the family courts as regular practice vest the custody of infants with the mother of the child and not with the father. Accordingly, some surrogacy clinics provide for surrogate mothers to live with their own children below three years but this is not necessarily followed in all surrogacy clinics.

For this period, the surrogate mothers makes ad hoc arrangements for the custody care, keeping of children depending on their own family background, personal means or feasibility. While a few surrogate mothers are fortunate who have their parent or in laws willing to act as ad hoc guardian to take care of the children during this time period and  in many cases, the surrogate mothers leave their children with relatives or sisters, friends where the children are not necessarily treated nor looked after well. Rather these children are made to do household chores in such family. There are some appalling conditions where the surrogate mother left their children in the orphanage for either absence or refusal by such grandparents or for lack of any other alternatives.

The Bill allows ever married woman to be surrogate mother, for these women  who are either widows or deserted, divorced by their husband, the plight of their children are faced/ fraught with greater hardships as these children have single mother parenting and in case of eventuality of maternal mortality or death of surrogate mother, these children are at greater risk of being rendered parentless, orphaned. Besides, there is no social security for surrogate mother’s own child, hence the plight of these children is alarming!  It may rightful to recall the case of Pemila Vaghela, (30) a surrogate mother lost her life while delivering the surrogate baby following heart attack leaving her two boys motherless who  had come to the hospital to take their mother back home in Anand Gujarat.  [ TNN, May 17, 2012 ] Such cases demonstrate the need for insurance for surrogate mother’s own child.

There are serious problems facing the children of such surrogate mothers who have migrated from other rural areas or towns to cities as their children not only are living away in different city or town or village therefore they may not even get to meet their mothers for close to a year.

In addition to these issues, many surrogates testify that living away from children, family for nine months is the most painful period. [ July 19, 2013 , the Hindu ] The surrogate mothers are worried about the child’s day to day needs as food, other necessities during their absence. This generates psychological stress and anxiety on them which may not be favourable for their pregnancy.  During the course of surrogate pregnancy, their children, family usually visit them once in a week or periodically in a month at the surrogate hostel or clinic premises [ The Hindu,  July 21, 2013 ]

There are a host of propositions for safeguarding the interest of surrogate mother’s own child. It is suggested that the child care support, crèche for surrogate mother’s own child may be termed as permissible expenses under altruistic surrogacy as provided under foreign legal jurisdictions, the UK Human Fertilization and Embryology Act 2008, Canada Assisted Human Reproduction Act, 2004 which mention child care support, crèche as a reasonable expenses under altruistic surrogacy regime. The surrogacy bill may provide for crèche facility for the children of surrogate mothers between the age group of 0 to 6 years along with nurses or attendants within the premises of the clinic along with the surrogate mothers so that there is no separation between the surrogate mother and the child for the same. The Surrogacy bill ought to provide for social security or insurance for surrogate mother’s own child.

These suggested provisions are more in consonance with the Directive Principles of State Policy [Art. 39(f) , Art. 45] of Indian constitution which imposes obligation on state to provide for early childhood care. The UN Child Right convention (CRC) 1989 to which India is a party also emphasizes on right to life, survival and development of the early child hood care  ( Article 6) and  right of child to be non separated from their parents unless it is in his or her best interest. (Article 9).

In the light of above mentioned, it is important to recognize surrogate mother’s own child as important stakeholders as there is important bearing on the lives of child of surrogate mother as these children are deprived of custody care of their mother for almost a year at the most critical, formative stage of their life coupled with gravest risk of losing their mother. There is a strong felt need to draw consideration on surrogate mother’s own children.

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Pitfalls of Altruistic Surrogacy in India & Around the World – Disturbing Trends

Pub. Info- Pitfalls of Altruistic Surrogacy in India & Around the World – Disturbing Trends” ISSRF Newsletter , Advances in Assisted Reproductive Technologies with Emphasis on Medical, Technical, Ethical, Legal and Social Issues Indian Society for the Study of Reproduction and Fertility , Issue 20, January 2017, ISSN No. 2395-2806.

In view of the proposed Surrogacy (Regulations) Bill 2016 introduced in the parliament following cabinet approval seeking to legalize altruistic surrogacy in India, it is pertinent to assess the working, effectiveness of same in India along with its relevance around the world . This altruistic surrogacy allows only close family relative of couple to surrogate mother with restriction on monetary payment among other rigors, conditions. While altruistic surrogacy is upheld an promoted by the law makers but altruistic surrogacy sporadic occurrences in India. The leading infertility clinics in India have reported  in media study that close relatively very rarely do lend womb, barely a handful number of family relative surrogacy have actually taken place over a decade. (TNN, Aug 28, 2016.) In this background, it’s appropriate  to critically asses the conduct and consequent implications of the same.

1.Expenses cover for surrogate pregnancy Inadequate & Unjust to surrogate mother –

Altruistic surrogacy is defined in the Bill allowing “medical expenses, insurance coverage” only to be given to the surrogate mother or her dependents, representatives”. This is primarily inadequate as it fails to cover “all the reasonable expenses related to or arising out of surrogate pregnancy” and other incidental or ancillary expenses in connection with the same” A host of related expenses are excluded as lost wages for duration of pregnancy and child care support or crèche support for surrogate mother’s own child there by imposing the burden on the surrogate for the same. It is highly apt to question if this nature of altruistic surrogacy safeguards the interest of surrogate mother or imposes additional financial burden on them!

 

Where as in established altruistic legal jurisdiction of the world namely UK under Human Fertilisation and Embryology (HFE) Act 2008, Canada Assisted Human reproduction Act 2004 all such expenses and additional related expenses as reasonable surrogate pregnancy expenses are permitted without any rigid payment control are permitted.

2.Breach of distributive justice, unequal treatment of Surrogate mother –

Surrogate is not treated as per her just desert rather the surrogate mother who is the least socio economically well placed as compared to other stakeholders in the arrangement yet she bears the greatest risk including health risk, maternal mortality or death for bearing the child for couples, yet the surrogate mother is solely forced to practice altruism while all the other affluent stakeholders gain form the surrogacy arrangement, as the intending couple get paid child care or maternity leave, and also receives the child, the clinic or doctor receives the fees,  thus affluent having both the capacity and liability to pay are exempted from liability to provide for all expenses related to surrogate pregnancy , at the cost of imposing greater onus or cost burden on the surrogate mother. Hence this arrangement appears unjust, unfair and breach of distributive justice , as it does not cause just distribution of benefits or burden as per risk sharing and also breach of equal protection, treatment of surrogate mother in the arrangement.

3.Altruistic surrogacy not all free from exploitation of surrogate – Another salient trait of the proposed altruistic surrogacy under the Bill is close female relative of Intending couple alone are permitted to act as surrogate.

In Indian social familial cultural context heavily influenced by the authoritarian patriarchal rule where in women are reduced to subordinate status, mostly dependant on their men folk , women continue to be being victims of domestic violence, Surrogacy arrangements impose compelling emotional socio psychological coercion , patriarchal forces on the women to be surrogate mother for their family members without much regard to their free voluntary consent.  This is testified in case of death of an Indian surrogate mother R.Lal (29) who was coerced by her in laws, husband to be surrogate for her sister-in-law’s to compensate for insufficiency of dowry brought by her despite her unwillingness, ailing health. She died of a massive heart attack while giving birth to a surrogate baby boy at a hospital in Ranchi, Jharkhand, on July 26, 2014. [Telegraph India, August 2, 2014] There may be many more of these cases which go unreported behind the close doors of family increasing their exploitation! Hence altruistic surrogacy too fails the interest, welfare of surrogate mother.

4.Disclosure of female infertility among close relatives greater threat to domestic violence, marriage annulment –

The Bill permits “only close relatives of couples to be surrogate”, this  entails disclosure of infertility of couple including the women (wife) to bear child before her in laws, family which exposes her at greater risk of domestic violence, abuse, eviction from the home, annulment of marriage, etc. In the conservative socio cultural familial context of India childlessness is typically understood as female problems only thus such women are subject to name calling, stigma, exclusion, ithas been reconfirmed by research studies that National Family Health Survey that childlessness is one of the reason for marital disruption or domestic violence.  Therefore this provision in effect increases disruption, discord of marital family ties against the women!

  1. Disclosure of infertility Mental cruelty, Breach of Right to privacy, personal liberty –

Under the provision of this bill providing for altruistic surrogacy, there is implicit compulsion on couples to disclose the most intimate private details about their procreative or reproductive health, issues, infertility among the family relatives, without the choice of the concerned individual, without their voluntariness or willingness for the same. This constitutes as the most blatant breach of individual’s privacy dignity, autonomy, deprivation of privacy of wedlock. It may be noted that the disclosure regarding fertility or infertility can’t  be enforced on the couple, this is inherently and essentially an individual private aspect of life. There can not be any compelling force for the same. In X vs Y [1999] the supreme court upheld the right to privacy, right to non-disclosure or confidentiality of a person regarding their private health conditions. Similarly in In kharak Singh Vs State of UP [1963 ] the supreme court upheld the privacy confidentiality of matters related to marriage, procreation shielded away from undue state interference under right to life , personal liberty guaranteed in article 21 of Indian constitution. Hence the provision negates these constitutional guarantee and judicial precedents.

  1. Onerous Burden & Legal impediments against Right to reproductive freedom of couples –

The proposed altruistic surrogacy with its pre conditions under the bill on many grounds stands in contravention against the reproductive rights of couples in its working and implications which are briefly enumerated.

a.Reducing the availability of surrogate mother –

This Bill permits only the close relative of the concerned couples to be surrogate mother. This causes acute dearth and unavailability of women to act as surrogate mother for the medically needy couples. This acts as the major impediment for the couples in commissioning surrogacy and restricts the reproductive rights of couples. Alternatively, This also causes selective and uncertain availability of surrogate mother for only a fortunate select few couples who may find such relatives hence this provision in its working may result in discriminatory , arbitrary right of couples to avail surrogacy, reproductive health services.

b.Shifting burden on couple to secure surrogate mother –

The bill imposes the burden on the couples to secure surrogate mother among their close relatives, by relieving the ART banks which assisted the couples in the same under the earlier Assisted Reproductive Technologies Bill. The couples who are already reeling under the stress of infertility or failure to conceive or carry a child, repeated failures in medical tests, treatments they are additionally burdened, this only increases hardships, helplessness of couples and causes greater psychological trauma, worsens the plight of couples. The denial of ART bank services restrains their reproductive choices.

  1. Unavailability or Unwillingness, Refusal of close relativesPrivation of reproductive right of couples-

In case of unavailability or refusal by women among their close relatives to act as surrogate mother for the concerned couples there is no recourse available, no assistance from ART banks. This may take away the most essential constituent of right to life, personal liberty including reproductive right of many couples for who surrogacy is the only option for have a biological child.

  1. Oversight of Exceptional, Unfit Medical Conditions of Close family relative to be surrogate mother- Denial of reproductive rights of couple – In certain exceptional cases, families having the medical history of congenital or genetic diseases, the surrogates, donors are particularly required to be outside of the family clan or ancestry in order to prevent passing on such diseases on to the child, for better health of child, hence the condition of close relative surrogate excludes the interest of such families or couples and denies them reproductive or procreative rights out rightly.
  2. State failure & Evasion of constitutional mandate to secure adequate access reproductive health facilities

With the shifting of burden from Assisted Reproductive Technologies (ART) Banks on to the couples themselves for securing surrogate mother, This takes away the assistance, statutory recourse which was available to couples on the contrary this impose the liability on the couples for the same. Thereby state fails its constitutional mandate under Directive principles of state policy [DPSP Article 47] to improve health. Accordingly there is national health policy 2015 – 2016 which primarily emphasizes the duty of state to secure universal, adequate health care, accessibility, but in this context,  the state fails to provide adequate reproductive health services to medically needy couples and for any such unavailability makes the individual liable for the same. Denial of adequate appropriate medical services defies right to reproductive health of couples.

  1. Inter Personal Family Issues, Custody & Property disputes surrounding surrogate child –

The surrogate mother being the close relative of the couples taking after the same line of ancestry, family lineage, there is only greater likelihood of developing emotional attachment between the surrogate mother, the child and refusal to surrender the custody of child to couples. In light of Hindu customary practice as Niyoga, which permits property to be inherited by widow if she bears a child for any closed relative sharing the same blood line, further this may give scope for familial disputes concerning inheritance, property issues, there gives rise to custody disputes over the child as well as property disputes within the family.  For the same property reasons, the relatives may refuse to act as surrogate to have lesser number of inheritors for the family property to gain larger individual share for themselves.

  1. Adverse psychological impact on child-

When a close family relative acts as surrogate mother, the surrogate mother and the child share familial degree of relationship, part of the same extended family, kinship. This may give rise to doubts, emotional rift, on issues of identity birthing conditions for child. The child may be psychologically disturbed with the idea of two competing women as his / her mother existing within the family which may be uniquely distinct from the rest of the other children in the same family, the parent child relationships may be disrupted. The child needs adequate mental counselling, preparation to build an understanding for the same.

  1. Nil agreements on altruistic surrogacy & Uncertainty, Unpredictability- Altruistic surrogacy among family relatives are largely based on mutual reciprocal promises relying on degree of personal relationship, trust and good faith among the family relatives. There is no necessary writing down or no recording of the reciprocal promises made by surrogate mother or couples, there is no procedural compliances of notary, stamp, affidavits therefore in case of differences among the relatives or refusal by the surrogate to hand over child to couple post birth , there is no legal means to hold the party accountable to their promise. This confines surrogacy into a private familial arrangement with no legal judicial recourse.

 

Downside of Altruistic surrogacy around the world – Altruistic surrogacy around the world is mired in host of legal complications.

  1. No absolute altruistic surrogacy globally – There is no altruistic surrogacy in absolute true sense, even those legal jurisdictions that practice or permit altruistic surrogacy allow for a wide range of expenses covered as reasonable compensation related to surrogate pregnancy including to be paid to the surrogate mother in addition to social security measures, post delivery care.
  2. Steep Decline in number incidence of altruistic surrogacy internationally –

In the leading altruistic legal jurisdictions the annual record of altruistic surrogacy have undergone a sharp decline primarily due to unavailability of women to be surrogate mother in the absence incentive for risk bearing , minimal coverage of safeguards. The surrogacy regulatory authorities of Western Australia (WA) reported “only two altruistic surrogacy applications have been approved in the year 2013 – 2014  but there might have been 10 times or even two dozen times that went overseas” for commercial surrogacy. [May 15, 2015, Couriermail].

iii. Failure & Repeal of altruistic surrogacy globally –Altruistic surrogacy has not only failed to work globally and many legal jurisdictions are replacing the same with compensated surrogacy. New York, New jersey, Western Australia (WA) is seeking to revise its earlier altruistic surrogacy towards legalizing compensated surrogacy. [nytimes.com Feb 19, 2014] [ Time .com Jan 28, 2015] [ ABC Net 24 Nov 2016]

  1. Altruistic surrogacy causing underground black market or illicit cross border movement of surrogate, trafficking, abduction –

Altruistic surrogacy has given rise to underground black market of surrogacy with abduction, confinement, illicit cross border movement of poor women for being surrogate mothers, egg donors for commercial returns, vested interests by agents.  There are reported cases of trafficking, inter country movement of surrogate mothers among the south Asian nations from Nepal, China despite the prohibition. The women are subject to worst health, socio economic exploitation away from the government purview with no recourse.

Conclusion-

The proposed altruistic surrogacy legalization in India does not does not corroborate with socio cultural familial reality of India nor does it provide the requisite safeguards for the surrogate mother, couples, child nor does it check the exploitation of surrogate mother. On the contrary it takes away and abridges the cardinal reproductive rights of couples, subjects surrogate mother to greater violation of rights , vulnerabilities  in the guise of altruism and therefore leaves many issues unaddressed. By changing the nature, form of surrogacy from commercial to altruistic only eschews evades the issue and is far removed from addressing the issues.

References –

I.Altruistic Surrogacy: Not A Panacea For All Evils, October 15, 2016, http://www.thecitizen.in/index.php/ByLine/index/7/Gender/SONALI-KUSUM

II.Surrogacy Bill – Omissions and Oversight, ETHealthWorld , December 05, 2016,  http://health.economictimes.indiatimes.com/news/policy/surrogacy-bill-omissions-and-oversight/55798307

III.Surrogacy Regulations Bill 2016 (Overview, Issues & Limitations), Flair Talk, Issue 8, ISSN No 23349 – 6649 Pg.

  1. The Surrogacy Bill 2016 needs complete overhaul to safeguard interests of stakeholders” September 4, 2016, India Medical Times, http://www.indiamedicaltimes.com/2016/09/04/opinion-the-surrogacy-bill-2016-needs-complete-overhaul-to-safeguard-interests-of-stakeholders/

 

 

India’s surrogacy bill fails to guard the child’s interests

Pub. Info- India’s surrogacy bill fails to guard the child’s interests, Asia Times, India Surrogacy,  DECEMBER 26, 2016, http://www.atimes.com/indias-surrogacy-bill-fails-surrogates-children/

 

India’s surrogacy bill fails to guard the child’s interests-

The  Indian parliament ushered the Surrogacy (Regulation) Bill 2016 by the Health Ministry proposing to legalize altruistic, domestic surrogacy. The bill followed a decade-long practice of commercial overseas surrogacy in India, and aimed to control exploitation of surrogate child and mother for unethical purposes. Yet the bill in more ways than one largely suffers from safeguarding the child interest.

No breast feeding for surrogate child: The Surrogacy Bill is silent on the most fundamental safeguard, being breastfeeding for the surrogate child. It is only rightful to mention India’s premiere fertility clinic, Akanksha IVF Centre at Annand in Gujarat delivering more than a thousand surrogate children for national international couples, this clinic set up a human milk bank to provide breast milk free of cost for better healthy growth of surrogate child. It must be noted that the banked human milk is much superior, beneficial health alternative over other breast milk substitutes or supplements in strengthening immunity, checking infant mortality. The Japanese surrogate child Baby Manaji born premature, in failing health, was breastfed by an anonymous surrogate mother at this clinic in Gujarat for improving health of child.

The supreme court of India in People’s Union for Civil Liberties v. Union of India), 2008 yr., Laxmi Mandal vs Deen Dayal Harinagar Hospital 2009 yr and the World Health Organization recommend breastfeeding within one-hour of delivery and its continuance until 3-6 months for better health of the child. Despite these apex court strictures the Bill has no mention on the same.

No right of Surrogate child to know parentage, legal identity: This Surrogacy Bill does not address the right of the surrogate child to information on genetic parentage or the surrogate. Whereas the earlier ART Bill stated expressly right of surrogate child to information about donors or surrogates upon reaching the age of eighteen years this is crucial in case of life threatening medical conditions involving physical testing or samples of the genetic parent or parents or surrogate mother. This is much in consonance with the right of the child to know and to be cared for by his/her parents under UNCRC 1989 (Article 7). While such disclosure is fraught with grave psychological impact on the child therefore there is also need for appropriate psycho social counselling to be incorporate in the Bill for building understanding, mental preparedness of the surrogate child

No screening of couples before commissioning surrogacy: This surrogacy bill is silent on screening of couples including their social economic background, criminal records in past, their health, age, and family information check before they are permitted to commission surrogacy. In the absence of such screening, the surrogate child’s interests suffers considerable risk as demonstrated when an Israeli pedophile after having a girl surrogate child in India, left the country subsequently the Israeli authorities discovered that he was criminally charged for sexual abuse of children. (GlobalPost Alaska Dispatch news, June 11, 2013) Taking after the existing adoption law which maintains a home study report after assessment of couple by qualified social worker. A similar provision may be introduced in this surrogacy Bill.

No social security Insurance for surrogate child: This surrogacy bill provides insurance for the surrogate mother but excludes the surrogate child. The predecessor draft bill regulating surrogacy, namely the Assisted Reproductive Technologies (ART) Bill (put to rest with the new separate Surrogacy Bill), directed couples at the time of signing the agreement to secure Insurance for surrogate the child or children through appropriate Insurance Policy like Jeevan Balya for maintenance of up till the age of twenty-one years. The ART Bill also provided insurance for egg donors and surrogate mothers. The Government of India Law Commission report no. 228 recommended for “financial support” or insurance for surrogate child.

It is pertinent to note that by failing to provide for insurance, the surrogacy bill overlooks such situations where commissioning or intending parents may incur death, disability, sickness during the process of surrogacy, leaving the child parentless at birth. Therefore the bill lacks crucial child concerns and loses out on adequate justice to the surrogate child.

Definition of Abandoned surrogate child Incomprehensive & Partial: The Bill prohibits and penalizes abandonment rejection of the surrogate by couple post-birth. The bill defines “abandoned child” by enumerating grounds of abandonment as “physical mental defect or infirmity, or being more than one in number” excluding “sex of the child” among the same. Taking advantage of this gap, an Australian couple who had twin surrogate children in India left the male surrogate child while the girl surrogate child was taken with them to Australia, reasoning that they already had a male child and they only needed a girl child to complete their family. (ABC news, 13 Apr 2015)

In connection with this abandonment/rejection of the surrogate child, the Bill does not address the plight of such surrogate child found non-genetically connected with either of the parents post birth following switching or swapping of donated frozen gametes of couples in clinics or labs, sperm banks, would such surrogate child be abandoned or rejected or left in adoption home or orphanage!

It may be rightful to mention that the “abandonment of child under twelve years by parent or person having care of it” is punishable offense in India under (Section 317) of the Indian Penal Code 1860, though the Surrogacy Bill does not reiterate or refer to the same.

Furthermore, the Government of India has a constitutional mandate, international treaty obligation following ratification of UN Convention on the Rights of the Child, 1989 to protect, prevent such case of abandonment of surrogate child under Indian constitution, Directive Principles of State Policy (Art. 39(f), 45) providing for “early childhood care” and “protection of child against material and moral abandonment”. In light of this the Surrogacy Bill needs stringent measures to control abandonment, rejection of surrogate child.

No Guardian & Immediate custodian for Surrogate child – The Bill neither envisages nor addresses such condition where the couple may not be present for reasons related to death disability or such other valid reasons to receive the immediate custody of child at birth, the Bill provides for no such immediate custodian or guardian for such surrogate child, however the earlier ART Bill provided for appointment of “local guardian” to receive immediate custody of child responsible for taking care, well-being of surrogate child or children until they are delivered to the commissioning couple. This also checks abandonment of surrogate child. In Baby Manji Yamanda vs Union of India (2008) the grandmother of the Japanese surrogate child was appointed as the guardian vested with custody as the Japanese intending father could not be present in India owing to expiry of his visa. This prevented the child from landing in orphanage!

No Punishment against Sex Selective or Family Balancing Surrogacy & Trafficking of Surrogate child: In the list of offenses and punishments, the Bill misses out on sex selective surrogacy or family balancing surrogacy to have child of a pre-determined sex, where as the ART Bill prohibited penalized the same by adding relevant provisions of Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 in ART , Surrogacy.

Amidst the offences and punishments, the Bill does not talk about “trafficking or sale, abduction of surrogate child” in guise of either altruistic or commercial surrogacy arrangement in any form under the same. Though the bill refers to the term “exploitation of surrogate child,” it does not define the same.

Plight of Child born of overseas commercial surrogacy unresolved: The Bill prohibits commercial surrogacy and prescribes imprisonment up to ten years and fine up to ten lakhs for violating the provisions of the Bill. This implies if an Indian surrogate child born of biologically or genetically related to either or both of the Indian intending couples under commercial surrogacy agreement in foreign nation, it is unclear if such a child be granted entry permit in India or placed in orphanage or adoption agency, or if the couple would be imprisoned for breach of this Bill.

This is significant in the after math of the recent Baby Lily case a surrogate child born in India to UK couples facing the risk of being placed in orphanage( Telegraph, UK 13 Se, 2016). Such a fate could be repeated for Indian surrogate children as well! The proposed law must resolve the deadlock.

Nil Surrogacy agreement Nil certainty, predictability on custody care of surrogate child: The bill makes no mention of surrogacy agreement, there is no writing down or recording of the reciprocal promises made by surrogate towards the couple vice versa, hence if a surrogate refuses to hand over the child to the couple post-birth, the entire surrogacy arrangement is rendered uncertain, without any legal recourse. This entails the worst fears of disruption of right to parentage, family for surrogate child, and may result in custody disputes pending over years surrounding the surrogate child.

This is testified in Re AB (Surrogacy: Consent)(2016) UK wherein the mutual consensual altruistic surrogacy agreement broke down following differences between the surrogate and couples, the surrogate refused to sign the parental order for vesting parentage in couples. The UK family court was compelled to adjourn the case leaving the child in limbo causing alienation of child from biological parents. This is abject denial of welfare of surrogate child. This serves as important case in point which could be a reality in India under the proposed Bill!

At the outset, for various reasons as discussed and for many more unidentified, unresolved issues, the bill appears to be devoid of surrogate child interest. The bill is awaiting enactment, but it would only be meaningful if it were reconsidered with better protections and promotion of the surrogate child’s interests.

 

Altruistic Surrogacy under Surrogacy Bill 2016 – The Socio-Legal Challenges Ahead

 

Altruistic Surrogacy under Surrogacy Bill 2016 – The Socio-Legal Challenges Ahead, Sunday, December 18, 2016 indiamedicaltimes, http://www.indiamedicaltimes.com/2016/12/18/opinion-altruistic-surrogacy-under-surrogacy-bill-2016-the-socio-legal-challenges-ahead/

The Surrogacy ( Regulation) Bill  2016 has been introduced in the parliament following cabinet approval which propose for the first ever legalization of altruistic surrogacy and prohibition and penalization of commercial surrogacy in India to put an end to exploitation of surrogate mothers.

The Bill 2016 describes altruistic surrogacy where in only a close family relative of the couple is permitted to act as surrogate mother in return for “monetary payment limited to medical expenses related to surrogate pregnancy and insurance ” and nothing over and above the same. On the other side, this Bill imposes a “blanket ban on commercial surrogacy” and imposes stringent “penal sanctions” including imprisonment upto ten years and fine upto ten lakhs for violating the provisions of the Bill.

Surrogacy as exploitative Not supported by RTI responses

The background statement objective preamble of the Bill emphasized on curbing exploitation related to surrogacy ,  but the very nexus between the surrogacy and exploitation has neither been born in effect by the RTI response from Government nor any such Government statistical study or report on the same.] Carrying forward this argument Dr. Shivani rightfully mentions refers to “a RTI request to the Indian Council of Medical Research (ICMR), the regulatory body for Assisted Reproductive Technology (ART), stated “The ICMR has not received any complaint from surrogates about their exploitation by doctors and others”.  [TNN, Aug 27, 2016]  She continues, “though Anecdotal evidence can make sensational headlines and can be used to emotionally modulate public opinion.”

A previous RTI reply from concerned Ministries, Government commissions revealed nil record on the total number of women registering as surrogate mothers annually in India. [Mainstream Weekly, April 5,  2014]  In the dearth of such crucial data, it is difficult to demonstrate the actual number, percentage of surrogate mothers who are exploited out of the total number of women registering as surrogate mother annually in India.

 

Altruistic surrogacy with family relative Not free from exploitation –

Quite contrary to the proposition in the Bill, Altruistic surrogacy with family relative without payment is not free from exploitation of surrogate mother. This is evinced by the reported death of an Indian surrogate mother R.Lal (29) who was forcefully made the surrogate mother for her sister-in-law’s baby by her husband and in-laws in order to compensate for insufficiency of dowry brought by her despite her unwillingness. She died of a massive heart attack while giving birth to a surrogate baby boy at a hospital in Ranchi , Jharkhand , on July 26, 2014. [Telegraph, August 2 , 2014 ]

 

Many similar cases might have not been reported being confined within the home. Under the authoritarian patriarchal familial structure India women are reduced to subordinate submissive role, the decision making power rarely or very marginally vests with the women, majority of women continue to be victims of domestic violence and barely safe at home, under such circumstances there are compelling emotional socio psychological coercion , patriarchal forces on the women to be surrogate mother for their family members without the personal voluntary consent of such women.  Hence altruistic surrogacy with close relatives is not free from the issues of free consent of women, thus even altruistic surrogacy is exploitative and fails the interest, welfare of surrogate mother. Thus altruistic surrogacy among the close relatives family would not ensure end of exploitation but renders it only more secretive as private household arrangement, taking it further away from the legal, judicial purview.

Dr. Shivani adds that “such case of death in the family has not sparked any research into these cases of altruistic surrogacy. There are extremely small number of cases of altruistic surrogacy being done which involve critical issues necessitating study but this has not sparked any research. A hasty decision without any study on its complications has made Altruistic surrogacy the panacea of all evils”!

The underlying premise is that if confining surrogacy with in the household by turning it to private party household arrangement is a solution to exploitation of surrogate mother? Or such private family arrangement is only making it more secretive, taking it further away from the legal, judicial purview.

Altruistic surrogacy Not supported by Surrogate mothers-  

It may be rightfully mentioned that altruistic surrogacy is not supported by surrogate mother who are the most crucial stakeholder in the same. These women are neither consulted nor granted any opportunity of fair hearing for representation of their interest. This is denial of natural justice to surrogate mother. Dr Shivani states that “No independent study of surrogate mothers has been done by the concerned Ministry. A group of 60 odd surrogate mothers visited the ICMR to present their concern but the were not met with any officials”. Subsequently Around 72 surrogate mothers under signed and submitted a petition to the ICMR but these have been inconsequential. [ The Hindu, November  06, 2015 ]

 

A petition of hundreds of surrogate mothers from across India approached the Supreme Court stating that their decision to be surrogate as a part of their bodily autonomy, personhood, these women reasoned their decision to be surrogate as their self voluntary informed choice denying any trick or falsehood or deception. These women also denied any exploitation rather they are satisfied with the medical services, health care facilities provided at these infertility clinics. Their petition refuted against “projecting surrogacy in a very negative light” and “equating surrogates with renting their wombs at any costs or for any reasons. “The surrogate mothers in the petition contend “breach of principle of natural justice” as these women are the most integral part of surrogacy, yet neither these women had been prior informed, nor included in the deliberation, drafting of the proposed law . [DNA, 26 November 2015,  DNA , 30 Nov 2015 ]

In this course, the surrogate mothers from SCI healthcare, led by Dr Shivani Sachdev Gour has been in the forefront seek to voice their representation, interest and strongly resisting any arbitrary government move against their interest.

This clearly shows that the process of law drafting has not be adequately participative, consultative transparent. It also appears that the testimonies of surrogate mothers are quite contrary to the proposed Bill. Dr Shivani maintains that “the bill in the guise of controlling exploitation takes away the rights of these women to make decisions for themselves and their reproductive rights. At the same time this does not seem to help the surrogate mothers.” This petition of surrogate mother was objected to by the Government Lawyer stating that it should wait the passage of the Bill. But Dr Shivani rightfully questions “How can the stake holders be consulted after a Law is passed”!

Curtailing availability of women to be surrogate mother- Limiting Reproductive choices–

The Bill permits “only the close relatives” of couples to be surrogate mother but the Bill doesn’t define the term close relative. It is ambiguous if close relative is synonymous with blood relatives or otherwise.

This provision reduces drastically availability of women to be surrogate mothers and restricts surrogacy. This acts as an impediment in access to reproductive or procreative autonomy or procreative freedom including family formation choices of couples to have genetically related child through surrogacy. This strikes at the right to privacy of couples which is a crucial constituent of right to life under article 21 of constitution as held by the supreme court in Kharak Singh vs State of UP (1963).  Dr. Shivani points out this provision presupposes an unrealistic underwritten condition that “All patients have a close relative (sister or sister in law) between the age of 25 to 35years who has had one child and is ready and medically and psychologically ready to do surrogacy for her sibling without any compensation for her time.” This precondition is neither workable nor pragmatic!

Altruistic familial Surrogacy are Rare Exceptions Not Routine-

It is pertinent to assess the incidence, frequency, trend of such cases of altruistic surrogacy. It has been found that altruistic surrogacy wherein family or close relatives of couples acted as surrogate are isolated unusually sporadic occurrences not routine or regular recourse.

Dr Shivani reiterates “a survey amongst IVF clinics in the leading metros has shown that in 99 percent of the cases no family member fulfilling the prescribed criteria are available or willing to be surrogate for their relatives. [ TNN , Aug 28, 2016 ] This means for 99 percent of couples who need surrogacy to get pregnant; no option has been given?” “This provision may exist only in paper does not corroborate with the ground reality at all. This takes the option of commissioning surrogacy away from the reach and ambit of couples, imposes another stern restriction on the reproductive choice of couples”.

Despite the limited chances or probability for availability, Dr Shivani strongly emphasizes on the issue of unwillingness of close relatives to be surrogate for their family members, as she shares from her experience, knowledge of case histories, interaction with patients availing surrogacy at her clinic, that “in many families the relatives do not cooperate rather they are better satisfied with lesser number of  successors or inheritors for the family property in order to gain greater individual share for themselves. Further this may give scope for familial disputes concerning inheritance, property issues with in the family”, hence this is one of the potent reasons against the choice of any close relative surrogate.

Criminalization Victimization of couples & Surrogate Mothers

For those couples who may not find such “close relative to be surrogate mother” they would be either compelled to travel overseas to liberal surrogacy legal regimes or they have to remain helplessly deprived of their reproductive right. Dr. Shivani speaks of “such affluent couples who can well afford to travel out of India and avail commercial surrogacy in leading commercial surrogacy hubs as in countries like USA California, Georgia,  Laos, Ukraine, or avail paid altruistic surrogacy or reasonably compensated surrogacy in UK, Canada. The Government has imposed prohibition on surrogacy otherwise than what is prescribed in the Bill. But for a fairly large section close to 90 % who can’t fulfil the family requirement the bill has not provided any options”.

Though the Surrogacy Bill provides for adoption but adoption is a socially benevolent choice for the community at large not selectively for the medically infertile couples only, also essentially it is a personal inherent choice and this can’t be state compulsion underwritten in the law for a section of society who suffer biological infirmity. Further more, the option of adoption may not be used as guise or excuse for taking away the reproductive freedom rights of couples to have access means to have genetically related child or such means of connection with regard to family formation.

It is a private right of an individual to choice or means of attaining parenthood family formation either through normal intercourse, adoption or using reproductive technologies including surrogacy this is a trite law and settled discourse as held by the highest court of the country in series of trailblazer cases and under International human right conventions. International Conference on Reproductive Health which equivocally established reproductive rights are human rights.

But such overseas commercial surrogacy by couples, surrogate mother is fraught with threat of subjecting them to criminal sanctions as imprisonment upto ten years,  fine upto ten lakhs rupees for violation of the provision of the Bill.

Amidst this, there is an alarming risk facing such surrogate child born overseas with respect to the right of child to entry permit in India, issue of Indian passport, citizenship!

This recalls the horrors of child being left stateless parentless, lying in orphanage or adoption agency while the parents, surrogates may be in jail! This issue assumes greater significance in India in the wake of Baby lily a Surrogate child born in India to a UK based couple facing the risk of being stuck in Indian orphanage. The Bill does neither envisage nor resolve such legal deadlock.

At the same time, this is worst ever criminalization of the reproductive health choices, procreative freedom, family formation choices and victimization of bona fide couples, surrogate mothers.

Speaking globally of altruistic legal jurisdiction,             

Limitation of Altruistic surrogacy – Dearth of Women to be Altruistic surrogate mothers-

The altruistic surrogacy has largely failed to work in prime altruistic surrogacy destinations primarily for the lack of availability of women to be surrogate mother as there is no incentive for women to be surrogate mother. Dr. Shivani refers to “the Australian Altruistic surrogacy model which allows altruistic surrogacy by unrelated women, this has shown hardly anyone can access such surrogacy rather this in turn resulted in the Australians being the largest users of Commercial surrogacy abroad”. [The Sunday Morning Herald 14 May, 2015]

It is significant to mention, the surrogacy regulatory authorities of Western Australia (WA) state that “only two altruistic surrogacy applications have been approved in the last financial year 2013- 2014 but there might have been 10 times or even two dozen times that went overseas”. [13 Aug 2014, abc.net. au ]

Australia is mooting a proposal  to legalize Commercial surrogacy after the Family court chief justice advocated for the same in one of the recent case hearings after acknowledging the altruistic surrogacy failure. [abc.net. au, 18 April 2015 ]

Alternative Flexible model of Altruistic surrogacy in Foreign Jurisdictions-

In most of the leading altruistic surrogacy jurisdiction, In UK under HEFA Human Fertilisation and Embryology Act 2008, In Canada under Assisted Human Reproduction Act 2004 altruistic surrogacy permits for a paid altruistic surrogacy regime allowing “reasonable compensation related to surrogate pregnancy  including a range of expenses as lost wages, child care support or crèche , local travel, to be paid to surrogate mother besides there is permissibility for both familial relative as well as unrelated or anonymous women to be surrogate mother.

In no other legal jurisdictions, there are such strict rigorous model of altruistic surrogacy as proposed in India with rigid payment control limited to insurance and medical bills and such preconditions of close family relatives surrogate mother only. The Indian bill may incorporate the necessary changes in the greater interest of the medically needy couples, surrogates

At the outset, The bill by legalizing altruistic surrogacy seeks to operate from the understanding that by changing the nature, form of surrogacy from commercial to altruistic by restricting payment, this would tantamount to ending exploitation and securing the welfare of surrogate mothers, but this does not corroborate with reality. On the contrary it causes arbitrary taking away and abridgment of the most cardinal constitutional, human rights of couples along with legally vexing issues which remain unaddressed!

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Progressive Legal & Judicial Developments on Single Parent surrogacy in India & around the world

Pub. Info. – Progressive Legal & Judicial Developments on Single Parent surrogacy in India & around the world,  http://www.familiesthrusurrogacy.com/surrogacy-in-india/

World over including India there is gradual rise of single parent families through / using modern reproductive technologies towards satisfaction of individual’s reproductive or procreative rights and freedom in consonance with right to life, personal liberty, family formation under international conventions, national legal instruments.

Introductory –

The issue of “Single parent surrogacy” gained significance with the hindi film celeb commissioning single parent surrogacy,  Tusshar Kapoor (39) Hindi film actor commissioned single parent surrogacy resulting in birth of a surrogate baby boy named Laksshya at in Mumbai on June 2016. [1] This is popularly held as the first ever single parent surrogacy in India. On the contrary, there is proposed legislation namely the Surrogacy (Regulations) Bill 2016 which is approved by the cabinet as on august 24th 2016 imposing a blanket ban on single parent surrogacy in India. These landmark legal developments pave way for necessary deliberation on the same.

However it may be brought to the notice, this is not the first case of such single parent surrogacy in India. Toban Morrison , (31) single man from Canada had a male surrogate male child named Orion on July 26, 2011 in Mumbai, India through donated sperm , anonymous egg donor, an Indian surrogate mother[2].  Similarly some of the famous single parent celeb surrogacy cases in the west may be mentioned here,

International celebs – single parent surrogacy

  • Ricky Martin Single father surrogacy -Latin American singer (36 yr) commissioned surrogacy by availing the gestational services of an anonymous surrogate mother, egg donor resulting in birth of surrogate male twins namely Matteo and Valentino in the year 2008[3]. This is one of the first globally famous case of single parent surrogacy.
  • Lucy Liu- single mother surrogacy – American Actress had a surrogate male child named Rockwell, in August 2015[4].

Legal Grounds for commissioning single parent surrogacy –

I.Single parent surrogacy facet of  Reproductive freedom & Right to life personal liberty–

Every individual has right to life including right to health, right to access medical technology, right to family formation , right to privacy which are core constituents of right to life, personal liberty of individual guaranteed under article 21 of Indian constitution[5]. It may be noted that these right are also recognised as international human rights guaranteed under series of international human right conventions as Universal Declaration of Human Rights 1948  (UDHR) [6], International Covenant on Economic, Social and Cultural Rights 1966, (ICCPR)[7] , International Covenant on Economic, Social and Cultural Rights 1996 (ICESCR)[8]. Besides, the reproductive rights, freedoms including reproductive or procreative freedom or decision making  on choice or means of conception, stages or means of conception  others related rights are specifically recognised as human rights under International Convention namely the International Conference on Population and Development (ICPD) Cairo 1994. [9]

All individuals   are entitled to this most fundamental right equally and without any discriminatory riders as nationality, marital status, sexual orientation, gender others  selection, under article 14 of Indian constitution as well as under international human right conventions. Accordingly right to access to ART including surrogacy as a medico technological procreative means of conception  emanating from right to access health services, technology and also a representing a procreative choice or decision making , facet of right to privacy, right to family formation , personal liberty guaranteed under Indian constitution, international conventions.

Thus the right to single parenting through surrogacy finds its legal foundation under series of international human rights conventions and under Indian constitution under article 21, This is also upheld by the supreme court in a host of cases Kharak Singh v state of Bihar (1963) Govind v. State of M.P, (1975), B. K. Parthasarthi v. Government of Andhra Pradesh (2000) as a facet of right to privacy as which upheld “the right of reproductive autonomy” of an individual as a facet of “right to life, privacy”, personal liberty, health, family formation.

 

  1. Single parent surrogacy for Medical necessity –

A New Zealand man seeking to commission surrogacy  for medical reason as asexual condition makes a case for single parent surrogacy. A New Zealand man is diagnosed with asexual genetic disorder necessitating surrogacy as the only option to have child genetically related to them[10]. Jesse Greenslade 26-year-old male national of New Zealand is detected with a rare genetic disorder neurofibromatosis (NF), hyperprolactinemia leading to growth of tumors rendering him incapable of sexual relationship thus asexual. Under such condition IVF, Embryo transfer, Gamete donors is the only and the last avenue to have genetically related child. Presently, Greenslade is seeking egg donor as well as surrogate by posting on social media on the same in order to attain parenthood.

Legal instruments on Single Parent Surrogacy in India –

The Assisted Reproductive Technologies Bill 2010[11] states that “assisted reproductive technology shall be available to all persons including single persons, married couples and unmarried couples”.  But taking a differing approach from these two instruments, the recently proposed ART Bill 2014[12] provides that “the option of surrogacy shall be available to only Indian heterosexually married infertile couple” only. The Home Ministry Guidelines (Foreign Division) Foreign Nationals Intending to visit India for Commissioning Surrogacy & Conditions to be fulfilled for Grant of VISA, 2012[13], restricts the choice of availing surrogacy only to such foreign heterosexual couples who are married for a minimum period of two years , thereby it excludes foreigners single , same sex couples , partners to commission surrogacy in India. The most recent Surrogacy ( Regulations ) Bill 2016 permits only “heterosexually married Indian couples who have sustained their marriage for above years and above ” to commission surrogacy.

Indian judicial position on Single parent surrogacy-

In the landmark case of Baby Manji Vs Union of India[14], The Supreme Court acknowledges the fact that “for certain individuals under typical medical situation “surrogacy is the only available option for parents who wish to have a child that is biologically related to them.” The Supreme Court of India mentioned “commissioning single male or a male, homosexual” as stakeholders who may commission surrogacy and the court referred to both “medical reasons and non-medical reasons” for commissioning surrogacy for having a biologically related child to them. Thus it may be implied that the apex court implies that the “intended parent may be a single individual”, “homosexual” who may equally be allowed or permitted to commission surrogacy in India” [15]. However the apex court considering the absence of law, directed the legislature to enact a regulatory statute on the same.

On the other side in India, It is pertinent to observe the changing legal provisions permitting single parenting through adoption under respective legal instrument following amendment, progressive judicial developments.

The Central Adoption Resource Agency (CARA) Guidelines governing adoption of children, 2015 under Juveniles Justice Act[16] permits single female to adopt a child of any gender, whereas single male person is allowed to adopt only male child and not adopt a girl child. Secondly the age limit for single parent adoption has been lowered from 30 to 25 at present. The women and child development Ministry has proposed for amendment of existing Passport Rules to give relaxation in mandatory requirement of listing the father’s name in passport application and allow for mentioning of mothers name alone as sufficient for the same.  The Ministries supported such change in law stating that there is a numerical rise in single parent families over the recent past  for various reasons including breakdown of marriage , self-choice among other therefore such favourable or requisite changes are necessary.

Progressive judicial decisions – The court through its judicial pronouncements has granted the legal documentation, identity cards passport, birth certificate to bear the name of single parent or a single mothers in series of cases. The Gujarat High Court in Rashi Yogesh Sadariya  vs Director & others on 15 October, 2015, held that the “petitioner being a single parent  and biological natural guardian has right to put her  (sur name) name   after   the   name   of   her   minor   daughter in the birth certificate following by mutual consent divorce from her husband”.

 

In a recent judicial pronouncement of this year 2016, the Delhi High Court in Shalu Nigam & Anr vs The Regional Passport Officer & others, 2016, the Court while adjudicating petition filed by a divorced single woman for issuance of her daughter’s passport without mentioning of  her father’s name in the application.  The court held that “mother’s name alone is sufficient in certain cases where she is a single parent in passport and that the name of one’s biological father is not necessary in all cases”. The Delhi HC held that a single woman can be a natural guardian and also a parent. Thus through this ruling the court gave legal recognition to single parent families, further the court held that the single parent families are on the rise for various reasons and the court enumerated such case of single parent families as “like unwed mothers, sex workers, surrogate mothers, rape survivors, children abandoned by father and also children born through IVF (in vitro fertilisation) technology”.

It is pertinent to note in this case the court identifies surrogacy, IVF  as one of the reason for rise in single parent family while granting legal recognition to single parent families yet single parent surrogacy is not permitted under the proposed statute.

 

Foreign legal & judicial development on Single Parent Surrogacy-

Around the world leading with select legal jurisdictions, laws and regulations on surrogacy is changing to allow single parent surrogacy. Some of these jurisdictions may be mentioned here,

a.Russia- Single intended parent are allowed their right to parenthood through surrogacy in Russia after a recent judicial hearing by the Babushkinsky District Court, Moscow which held that “single intended parents regardless of their sex or sexual orientation can attain fatherhood using gestational surrogacy, they can be registered as father of his new born “surrogate” child without naming surrogate mother on the birth certificate thereby[17].

b.Israel – The issue of single parent surrogacy is proposed to be legalized in Israel following petition before the Israel High Court of Justice. Israel’s surrogacy law namely Embryo Carrying Agreements Law 1996 is challenged as discriminatory  as this law permits only a man and woman in a relationship to commission surrogacy or to have a child through a surrogate in Israel.  The Israel High Court of Justice, issued notice to the state for amending the existing law to allow single women or women without a male partner, single male individual, same sex partners  to commission surrogacy, thus paving way for legalization of single parent surrogacy[18].

c.UK – Baby Z case 2016[19] – UK has also ushered for legal permit to issue of parental order to single parent thus granting legal recognition to single parent surrogacy in UK. A singleton British national commissioned surrogacy in USA resulting in birth of surrogate child Z.  Initially the high court refused to issue parental order and thereby denied vesting of legal parentage under parental order for the single parent despite the single parent being the biological father, the surrogate child was declared as the ward of court. The President of the High Court family division England’s top family judge, differing form the higher court  held  that UK law unfairly discriminates against single parents with children born through surrogacy and is incompatible with their human rights under Article 14 right to non discrimination, right to family, privacy under Article 8 of the European Convention on Human Rights. As the UK Human Fertilisation and Embryology (HEFA) Act 2008 allows only couple including two people in a marriage, civil union or partnership to make application for parental order , thereby excludes single parent on the sole ground of their celibate status thus discriminates against them. Following this landmark judicial precedent the Secretary of State for Health, UK proposed that the law on surrogacy is sought to be amended accordingly.

Single parent surrogacy permitted in other nations –

Presently many such nations which have no binding legislation on surrogacy is becoming a familiar ground for single parent surrogacy as Cambodia, which has emerged as the hub of overseas surrogacy owing to nil laws, regulations on the same, the country is reported to have provided for single parent, same sex surrogacy as well.

 Issues & Considerations in Single parent surrogacy –

In the light of single parent surrogacy, there are many inter connected and incidental issues, if single parent surrogacy is allowed applying the same rationale same sex individuals, live in partners, transgender or ever married women including divorcee, widow should also be allowed to commission surrogacy,   In similar vein, the issue of permission and prohibition to avail or commission surrogacy based on the individual’s marital, celibate status as determining criteria to commission surrogacy is also questioned!

It is also important to incorporate some of the suggestive safeguards in case where single parent surrogacy is permitted in order to safeguard the greater interest of stakeholders as surrogate children. It is also appropriate to lay down the necessary eligibility requirements, or preconditions to commission surrogacy as well as to check and control unethical, illicit practices under the guise of surrogacy including 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 as well as the permissibility on the number of attempts for the same couple, individual to commission surrogacy in their life time needs to be specified. An important prerequisite is the strict screening of couple including medical necessity, age, socio economic educational, family background check as done in case of adoption may be required in case of surrogacy. These issues require consideration and resolve.

Ending Remarks-

At the outset, the trend of single parent is increasing, with favourable government legislative policy changes or amendments, landmark judicial developments around the world. Therefore, the enactment of a statutory law on surrogacy providing for single parent surrogacy is legit in tandem with established international conventions. Last but not the least , one of the most recent positive development with regard to legalizing single parent surrogacy is initiated by the world renowned World Health Organization (WHO) which has proposed amendments to the current definition of “infertility” “to include ‘singles’ seek to give every person who desires a family the right to have a child regardless of whether they have health challenges that cause infertility or just do not have or want a partner to sire a child with”[20].  As per this change in the definition, single persons gay , same sex individuals would be termed as disabled owing to absence of female partner to have child with.

***************************

[1] Shobhita Dutt, Tusshar Kapoor Is Now A Proud Single Father Of A Baby Boy Through Surrogacy! indiatimes, June 27, 2016 available at http://www.indiatimes.com/entertainment/celebs/tusshar-kapoor-is-now-a-proud-single-father-of-a-baby-boy-through-surrogacy-257421.html ( Last visited October 11, 2016).

[2] Cynthia Vukets Staff Reporter, Single man wanted a child, hired a surrogate, had a baby, the star, health & wellness, Aug 12 2011 available at http://www.thestar.com/life/health_wellness/2011/08/12/single_man_wanted_a_child_hired_a_surrogate_had_a_baby.html( Last visited October 11, 2016).

[3]Fox News,   Associated Press, Ricky Martin Father of Twin Boys Via Surrogate Mother, August 20, 2008 available at http://www.foxnews.com/story/2008/08/20/ricky-martin-father-twin-boys-via-surrogate-mother.html( Last visited October 11, 2016).

[4] Isabelle Khoo, Celebrity Surrogate: Famous Parents Who Are Thankful For Their Surrogates Huffington Post Canada , 01/29/2016, available at http://www.huffingtonpost.ca/2016/01/29/celebrity-surrogate_n_9116120.html ( Last visited October 11, 2016).

[5] V.N Shukla, Constitution of India 131 (M.P.Singh ed., 2008).

[6] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at http://www.refworld.org/docid/3ae6b3712c.html ( Last visited October 11, 2016).

[7] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at http://www.refworld.org/docid/3ae6b3aa0.html  ( Last visited October 11, 2016).

[8] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at http://www.refworld.org/docid/3ae6b36c0.html ( Last visited October 11, 2016).

[9] International Conference on Population and Development , Cairo, 5-13 September 1994 , United Nations Distr. General A/CONF.171/13, 18 October 1994, available at http://www.un.org/popin/icpd/conference/offeng/poa.html ( Last visited October 11, 2016).

 

[10] JOSIE STEENHART, Asexual ‘Kiwi guy’ wants to be a father, using Facebook to search for a surrogate, stuff,

July 6 2016, available at http://www.stuff.co.nz/life-style/parenting/pregnancy/conception/81783461/asexual-kiwi-guy-wants-to-be-a-father-using-facebook-to-search-for-a-surrogate( Last visited October 11, 2016).

[11] 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 October 11, 2016).

[12] Government of India, Ministry of Health and Family Welfare, ( Department of Health Research) ART Bill 2014, 30th September 2015, available at http://www.prsindia.org/uploads/media/draft/Draft%20Assisted%20Reproductive%20Technology%20(Regulation)%20Bill,%202014.pdf ( Last visited October 11, 2016).

[13] General Instructions for Registration by the Foreigners, B. – Surrogacy Cases , Ministry of Home Affairs available at http://mha.nic.in/pdfs/ForeigD-FRRO_version223.6.11.pdf ( Last visited October 11, 2016).

[14] WP(C) No. 369 of 2008.  (2008) 13 SCC 518.,

[15]WP(C) No. 369 of 2008.  (2008) 13 SCC 518., Para 11.

[16] JJ Law 2015, CARA Guidelines , Ministry of Women and Child Development  Notification

New Delhi, Guidelines Governing Adoption of Children, 2015, the 17th july, 2015, Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) available at http://cara.nic.in/InnerContent.aspx?Id=163#Guidelines – 2015 ( Last visited October 11, 2016).

[17] Surrogacy In Russia and abroad, No wife needed: Single Men Can Become Dads through Surrogacy, Moscow Court Says, August 04th, 2010 . available at http://www.surrogacy.ru/eng/news/news4.php ( Last visited October 11, 2016).

[18] Asaf Weiss Israel Must Remove the Discrimination Inherent in Its Surrogacy Law

available at http://www.haaretz.com/opinion/.premium-1.653667Apr 27, 2015

available at http://www.haaretz.com/opinion/.premium-1.653667http://www.haaretz.com/israel-news/.premium-1.729199( Last visited October 11, 2016).

[19] Single father wins surrogacy human rights ruling,23 May 2016, By Antony Blackburn-Starza, Appeared in BioNews 852 available at http://www.bionews.org.uk/page_651129.asp ( Last visited October 11, 2016).

[20] Graham Kajilwa, Why single men could get babies through surrogacy standard media, October 25th 2016, available at http://www.standardmedia.co.ke/health/article/2000220933/why-single-men-could-get-babies-through-surrogacy ( Last visited October 11, 2016).

Trivia on surrogacy, IVF ART in India & around the world

Pub. Info-  Trivia on surrogacy, IVF ART in India & around the world, familiesthrusurrogacy,  https://www.facebook.com/notes/families-through-surrogacy/trivia-on-surrogacy-art-ivf-india-aroud-the-world/729723413850276

1 TRIVIA ON SURROGACY, ART, IVF -INDIA & AROUND THE WORLD B

These information are timelessly insightful for any deliberation , research, writing, presentation on ART , IVF, Surrogacy in India & around the world.

 The term Surrogacy is derived from the latin word “subrogare”, “surrogatus” meaning a substitute that is a person appointed to act in place of another.

 Forms of surrogacy- Surrogacy based on Genetic Connection: “Gestational surrogacy” where in surrogate mother not the egg donor, biologically unrelated to the child she carries in her womb. “Traditional surrogacy” where in surrogate mother is the egg donor, biologically related to the child.

 Surrogacy based on monetary consideration: “Altruistic surrogacy” wherein the surrogate receives no monetary payment for agreeing to act as gestational carrier , where as in “Commercial surrogacy” the surrogate receives monetary payment for the same.

 Transnational or Cross Border or Overseas surrogacy wherein the couples travel / avail surrogacy in the overseas jurisdiction involving the couple and the Surrogate mothers of different nationalities.

 The first ever case of traditional surrogacy is found in old testament Bible – Genesis, Chapters 16 and 30 ,the tale of Abraham & Sarai and the tale of Rachel & Jacob wherein the maid acted as gestational carrier, egg donor and bore children through their husband on the command of the infertile wife for ensuring genetic connection with the husband. The first ever codified legislative instrument on surrogacy is the Humamrabi’s code of 18th century BC § 144 to § 146 states that surrogacy as a recourse for an infertile wife to have an offspring.

 The first ever IVF test tube Baby born in the world is Louise Joy Brown born on 25th July 1978 in UK.

 The first ever scientist who made successful delivery of world ’s first Test Tube Baby is Dr. Robert Geoffrey Edwards from UK (27 September 1925 – 10 April 2013) English physiologist who developed the IVF Technology. He has been awarded Nobel prize for his work in medicine in the year 2010.

 The first ever IVF test tube Baby born in India and the world’s second is Kanupriya alias Durga on October 3, 1978, in Kolkata.

 The first ever Indian scientist who made successful delivery of India’s first Test Tube Baby is Mr. Subhash Mukhopadhyay (16 January 1931 – 19 June 1981) was posthumously honoured for successful practice and delivery of making India’s first test-tube baby only 67 days after the world’s first test tube baby by the ICMR India in the year 2002, around 21 years following his death.

 The first ever legal attorney in the world who drafted the first formal surrogacy agreement is “Attorney Noel Kene” from Michigan, USA in year 1976 – 1980. The “Attorney Noel Kene” as attorney of record for petitioners advocated for the constitutional privacy rights of couple / individuals to enter into surrogacy agreement in pursuance right to family formation, privacy in Doe v. Kelley, 106 Mich. App. at 173, 307 N.W.2d. in Syrkowski v. Appleyard, 420 Mich. 367, 362 N.W.2d 211 (1985). He also drafted the first ever gestational commercial surrogacy contract in the landmark Baby M case of New Jersey of USA, 1986 .

 The world’s first ever popular surrogacy law firm as Keane & Keane is set up by Attorney Noel Kene in Dearborn, USA which has other centers in California, Indiana, Michigan, New York and Nevada. 5  The most celebrated surrogacy commercial surrogacy in the world is Re Baby M case (109 N.J. 196, 537 A. 2d (1987).

 The most celebrated surrogacy commercial surrogacy in India is Baby Manaji Yamanda Manji vs. Union of India, [(2008) 13 S.C.C. 518].

 The first ever judicial pronouncement by the Indian Supreme court on surrogacy is in Baby Manaji Yamanda Manji vs. Union of India, [(2008) 13 S.C.C. 518] that held commercial surrogacy legal in India.

 The first ever Indian Society for promoting Assisted Reproduction ISAR is established by Dr. Mahendra Parikh the Founder President of ISAR in the year 1991 with headquarters in Bombay for creating 6 awareness and information dissemination, research on Assisted reproductive technologies.

 The first ever commercial practice of surrogacy started under the National Health Policy of year 2002 as infertility treatment introduced by the Ministry of Tourism in order to boost medical tourism and foreign exchange.

 The First ever national guidelines on the conduct of surrogacy in India , ICMR National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, 2005.

 The first ever National Registry of ART Clinics in India as NARI registry has been established by ICMR Delhi in the year 2012 for causing an authentic central database on the ART clinics in the country.

 The Indian Society for Third-Party Assisted Reproduction (INSTAR) is constituted of Infertility experts, lawyers, embryologists and social 7 workers have laid down moral and ethical guidelines for the welfare of surrogates in including a minimum compensation of 2.25 lakhs for surrogate mothers nationwide along with monetary compensation in case of medical complications for surrogate mother in the year 2014.

 The First ever case of Right to Maternity leave or Right to child care leave for the women attaining motherhood through Surrogacy in India is granted by Madras High Court in K.Kalaiselvi vs Chennai Port Trust W.P.No.8188 of 2012 and successively upheld by Kerala High Court in P.Geetha vs The Kerala Livestock Development WP(C).No. 20680 of 2014 (H),18 June, 2014.

 The Popular Trend of celeb Surrogacy in India is set by three popular Hindi film actors Hindi film actor Amir Khan ( 46) and his second wife film maker Kiran Rao (38) had surrogate male child Azad Rao Mumbai in the year 2011.

 Sohail Khan Salman Khan’s younger brother, and his wife in their late 40s had their second surrogate male child Yohan in the year 2011 .\

 Shah Rukh Khan (47) and his wife Gauri Khan (42) had their third surrogate male child named Abram at Mumbai in the year 2013.

 The first of its kind popular single parent surrogacy is commissioned by Tusshar Kapoor, unmarried (39) Hindi film actor son of yesteryear film actor of Jeetendra, had first surrogate child named Laksshya at Jaslok Hospital Mumbai as on June 28th 2016.

Case of mix up or switching of gametes, embryos – Glaring Omission under ART Bill, India.

Pub. Info- Case of Mix-up or Switching of Gametes, Embryos – Glaring Omission Under ART Bill, India, Indian Journal of Clinical Practice, monthly journal,  Vol. 27, No. 10, March 2017, Pg No 929 – 932. ISSN 0971-0876 Full text online: http://ebook.ijcpgroup.com/ijcp/

Key words – Biomedical ethical safeguards, IVF mix up, Surrogacy law, regulations India, Switching gametes or embryos.

Abstract –

Infertility has been recognized as an alarming public health issue worldwide with estimated 48.5 million infertile globally and over 20 million infertile couples in India” [1]. In the background of rising infertility couples around the world to resorting to assisted reproductive technologies (ART) including in vitro fertilization, surrogacy to attainment of parenthood ensuring child either genetically related with either or both couples or otherwise, However in many cases there has been gross errors in handling gametes, embryos by clinics or banks, leading to breach of medical ethics, violation of right to privacy, family formation of couples of patients, legal complexities.

The objective of this paper is to identify such grave medical malpractices by the fertility clinics or banks, to emphasize on the unregulated, unmonitored functioning of clinics away in the absence of law, to demonstrate implicit bio medical legal issues through case studies.

As a proposed conclusion to suggest for formulation of progressive, effective bio medical ethical standards to be complied by the clinics, banks for providing better reproductive health care and to suggest inclusion of the same in the proposed law. For the same, there is use of comparative legal perspectives, descriptive or analytical research methods following literature survey, relying on primary and secondary sources of data collection. There is use of comparative legal perspectives, descriptive research methods following literature survey, secondary data sources.

Introduction – Understanding the cases of IVF mix up or switching of gametes or embryos or  misdirection of gametes are identified as “medical errors” which may occur or take place during the course of practice of ART reproductive technology which essentially/ inherently involves handling of human biological materials or gametes or embryos through the retrieval, processing, transfer, and storage of human gametes and embryos , where in these medical errors may include use of wrong sperm for insemination,  or  mistakenly switched gametes or embryos resulting in fertilization, or any other manipulation  during embryo transfer, implantation or use of the gametes or embryos in implantation not those originally intended for use in the patient undergoing treatment, potentially leading to the birth of a child with a different genetic parentage than intended, or an unplanned genetic parentage causing negative consequences  or harm for patients. These medical errors are subsequently discovered through DNA tests during the course of civil, legal formalities when the couple or the patient is seeking to apply for citizenship, passport, or birth registration for the concerned surrogate child.

While the Assisted Reproductive Technologies (ART) Bill 2014[2] is awaiting to be enacted, given effect, there are glairing commissions and unresolved issues under the proposed ART Bill 2014.  A major lacuna under the Bill is the absence of provisions to address cases of mix up or switching of gametes. Though under the relevant provisions of the Bill there is statutory duties imposed on ART Banks “to follow highest possible standards for storage and handling of gametes and human embryos” [3]. But there is no legal recourse or remedial measure under Bill in case of failure to perform such duty by ART Banks. There have been series of such case of mix up or switching of gametes both at nationally, internationally while gametes are stored with the ART Bank for various reasons including deferred use,  these occurrences impair  cardinal human rights established under constitution as well as human rights conventions including right to privacy, family formation , right to procreative or reproductive health there by constituting breach of right to life which are couples and leave the couples legally vulnerable without any legal remedy under such circumstances. Some of these case may be reiterated as below:

  1. Canadian Intending couple mix up of gametes at ART Bank in India, 2005 yr.[4]-

A Toronto based couple commissioned surrogacy in India in 2005 by availing the gestational services of an Indian surrogate mother who was carrying a foetus conceived of eggs from anonymous egg donor  and intending father’s sperm resulting in birth of surrogate twins boy and surrogate girl in March 2006. the couple applied for citizenship to the Canadian High Commission in New Delhi by adducing proof  of genetic connection between the couple and the surrogate child using DNA Test that showed the boy was not genetically related, only girl child was genetically connected , this indicated an error or mix up or switch or swapping of gametes in the Indian fertility lab. The Canadian government permitted citizenship only for the genetically related twins but refused to issue citizenship to the other twin, leaving the couple stranded in India. The couple made an application on humanitarian and compassionate grounds for their non-biological child to be granted citizenship, the Canadian Government issued a citizenship card and travel papers to the other twin only in the year 2012 almost six years after the couple commissioned surrogacy in India.

2.Dr.K.K.Gopinathan vs Anitha Jayadevan [5]- Kerala couple mix up of gametes at Clinic in Kerala, 2012 yr.-

A Kerala based couple named Mr.& Mrs Anita Jayadevan underwent intra cytoplasmic sperm injection (ICSI) treatment using their own gametes, the sperm of her husband, her own ovum respectively. Following a DNA test, it was found that there was no genetic connection with the intending mother and the foetus. The hospital authorities admitted a donor ovum was used for artificial insemination. The couple has filed a law suit in the high court of Kerala against the Hospital authorities for Rs 20, 01,000 as damages. Ms Anitha has written a book titled as “Malicious medicine my experience with fraud and falsehood in infertility clinics” (Malayalam language) on her testimony and recounting similar cases of mix up and switching of gametes by infertility clinics among other misuse and malpractice of technology by clinics.

3. Baby X – New Zealand – mix up, swapping of child post birth, 2015 yr. [6]–

A New Zealand couple, Mr and Mrs Y, commissioned surrogacy in Chiang Mai Thailand using intending father’s sperm, egg donor from a family member and a local Thai woman to act as surrogate mother to carrying the same resulting in birth of baby X in Thailand. The couple applied for issue of travel documents for the surrogate child in compliance with the rules New Zealand Immigration rules a  DNA test, was conducted that showed that the surrogate child had no genetic connection with the father, or the relative who donated the egg or to the surrogate. This indicated embryos were mixed up during IVF or the baby was swapped after birth. New Zealand Family Court Judge held that “Baby X was not the child the concerned intended parents, this is another child altogether.” The couples were directed by the authorities to leave the Baby x surrogate child in a Thai orphanage. The Baby X was born with no genetic records, no identity even termed as “scrap of humanity”, Investigation into the identification of the genetic parents of Baby X, showed nil records with the hospital authorities on the same. However, the couple sought to adopt the baby X following the foreign adoption orders. This case manifest the legal, human crisis underlying such issues, gross violation of right to life of child.

4. A White couple had black twins following mix up of gametes, UK, 2001yr. [7]- UK based the white couple, named Mr and Mrs A , had black twins following a IVF mix-up at the ART Clinic owing to confusion over sperm, eggs or embryos belonging to a black couple with those from a white couple.

Findings & Inferences –

Progressive regulations on handling of gametes, embryos – A comparative foreign legal perspective:

In the light of these cases, it is imperative to consider comparative foreign laws, regulations on the same.

The UK Human fertilisation and embryology authority (HFEA)[8] provides for code of practice for effective monitoring system of to ensure security, storing, handling of gametes and embryos. The UK HEFA Guidance Note issued to all clinics centres with the main purpose to minimise, check use of wrong gametes or IVF mix up cases, wrong infertility treatments. The UK HEFA recommends to the clinics, centres to ensure, maintain highest possible standards including effective monitoring for storage and handling of gametes and embryos. These guidelines are laid down as below [9]:

  • All clinics handling, using of stored or donated gametes or biological materials are to be licensed by the Human Fertilisation & Embryology Authority.
  • Periodic inspection by the Clinical and scientific inspectors of gametes, embryos or biological materials kept at the clinic. The UK HEFA Authority also regularly inspects and monitors the same.
  • Procedures to ´cross-identification´ or double-check the identification of gametes embryos at three crucial stages namely the individuals undergoing treatment, the sperm and eggs at the time of insemination, the embryos and the patient at the time of embryo transfer.
  • Double-check identification of the individuals undergoing treatment, the sperm and eggs at the time of insemination, and the embryos and the patient at the time of embryo transferred. Confirmation by nurse, embryologist and gynaecologist establishing patient’s identity.
  • The source of gametes and embryos should be accurately recorded and labelled in a manner that is not susceptible to unauthorised or undetectable alteration.
  • The location of gametes and embryos in such a manner to minimise unnecessary handlings, interventions in retrieving the same.
  • Labelling with unique identification of an individual’s all biological material including gametes, embryos at all stages of treatment. Writing the names of the patients on both the lid and the bottom of the dish
  • Restricted Permissible access to such gametes, embryos only to such concerned or named Person in the centre, for whom it is essential to their work. No Permission for any other person to access to gametes and embryos.
  • Maintenance of records on the location of gametes and embryos along with each occasion of handling of gametes or embryos, source of gametes and embryos, the various procedures or recourse on embryo, egg or sperm sample collected kept from the date of collection.

The European Society of Human Reproduction and Embryology (ESHRE) – Handling & Identification of patients and their gametes and embryos [10]–

  • Training of all the laboratory staff on handling of gametes, embryos is made mandatory.
  • Development of written procedures describing the various phases or stages of handling of IVF techniques.
  • All biological materials including gametes, embryos obtained from the patients should bear unique identification of the treated couple.
  • Organization of Incubators in such manner to facilitate better identification of gametes and embryos.
  • Double checks of patients and their gametes and embryos must be maintained, recorded at these stages insemination of oocytes, replacement of embryos, embryo freezing and thawing respectively
  • Verification of patient’s identity should be performed at crucial stages steps as ovum retrieval, at semen recovery and embryo transfer procedures.

 

American Society for Reproductive Medicine (ASRM)[11]- Ethical Committee on Disclosure of medical errors involving gametes and embryos:

  • The ASRM imposes stringent ethical obligation on the Clinics to disclose errors at the earliest as soon as discovered without any further delay.
  • To respect patient autonomy and practice fairness in treatment, delivery of services to patients.
  • To uphold and recognise that the patient’s right to know is compelling in case of such misdirection or medical error of mix up or switching of gametes or embryos physicians are obligated to disclose to patients any error as soon as discovered that could lead to a child being born with an unintended paternity or maternity.
  • Clinics are obliged to ensure availability necessary written policies and procedures for making disclosure of errors to patients in such cases without nay exception.

 

 

Preventive safeguards for the couples [12]- to detect genetic connection of the child with the intended parents with the child during pregnancy

Preimplantation Genetics Diagnosis (PGD) – This genetic test intended for identifying genetic defects in embryos, this test carried out before implantation ensures a couple that the embryo shares the genetic match with the intended couples.

Amniocentesis – This is another pre-natal test using amniotic fluid around the foetus for detection of chromosomal and genetic birth defects and identifies genetic match with the intended couples.

Such early identification or determination allows the couples in consultation with clinic to decide on the continuation or termination of pregnancy or foetal reduction or otherwise. Thus safely prevents any further IVF mix up or birth of child with unintended genetic parentage.

Issues for consideration –

These case raise a range of issues as enumerated, first and foremost these cases evince the largescale malpractice, abuse of this technology by ART Clinics, Banks. These clinics, Banks as well as unregulated, unmonitored practice of these clinics, banks which are largely unregistered, lack infrastructure, expertise and function for vested or commercial gains flouting the Indian council of medical research (ICMR) guidelines as these are non-binding. Similar concerns are expressed by the Indian Council of Medical Research (ICMR) which have reported that there are some 1,200 assisted reproductive technology (ART) clinics in India. Only 177 of these, have enrolled with the ICMR. “While some have top-class facilities, others are really bad in terms of infrastructure and technical expertise.” Under these circumstances, with no effective law any accountability, control or check on the functioning of these clinics is challenging.

In addition to this, there are other pertinent concerns associated with the same which are briefly mentioned as follows:

  • There is need for inclusion of biomedical ethical principles, safeguards coupled with protocols, best practices to prevent ensure maximum safety, minimize any tampering , manipulation  and check or control of such acts
  • There must be identification of onus of proof, legal presumption establishing the liability for such acts commission or omissions or any foul play on the part of ART Bank, clinic.
  • Legal recourse or remedial measure may be provided to redress such cases including complaint forum, procedural mechanism for the same.
  • To specifically enlist the acts of mix up switching, swapping of gametes, embryos as punishable act with imprisonment, fine under the list of offences as ART Bill 2014.

 

Conclusion –

These issue gain alarming significance in the absence of a binding legislation in India. These unresolved issues are submitted for consideration of law and policy makers formulating the ART Bill 2014. A list of select provisions taken after the regulations, best practices of international medical regulatory bodies for safe, desirable practice of ART Technology is suggested that may be incorporate under the ART Bill as there is omission to address the same in the face of rising number of such irregularities and legal complexities. There should be inclusion of mandatory principles of bio medical ethics in the Bill seeking compliance from all banks, clinics towards ensuring safe practice of ART technology in the best interest of couples as well as towards greater good of society.

 

References –

1.VIDYA VENKAT , “There are 20 million infertile couples in India” the Hindu, Septmeber28, 2014 , available at http://www.thehindu.com/sunday-anchor/pushpa-m-bhargava-there-are-20-million-infertile-couples-in-india/article6453374.ece   (Last visited March 1,  2016). See also, Ashok Agarwal, et others / al , A unique view on male infertility around the globe, Journal ListReprod Biol Endocrinolv.13; 2015PMC4424520, 2015 Apr 26. US National Library of Medicine National Institutes of Health,   available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4424520/ (Last visited March 1, 2016).

2.Government of India, Ministry o f Health and Family Welfare, ( Department of Health Research) ART Bill 2014 , 30th September 2015, available at http://www.prsindia.org/uploads/media/draft/Draft%20Assisted%20Reproductive%20Technology%20(Regulation)%20Bill,%202014.pdf  (Last visited March 1,  2016).

  1. ART Bill 2014 Sec. 53. (1) The highest possible standards should be followed in the storage and handling of gametes and human embryos in respect of their security, and with regard to their recording and identification.
  2. 4. Raveena Aulakh, Couple fights federal surrogacy policy to bring their boy back to Canada

The satr, ,  Aug 20 2011 available at http://www.thestar.com/news/gta/2011/08/20/couple_fights_federal_surrogacy_policy_to_bring_their_boy_back_to_canada.html

(Last visited March 1, 2016).

5.OP(C).No. 2084 of 2012 (O),

OS.12/2004 of SUB COURT, TIRUR, available at http://indiankanoon.org/doc/57268181/(Last visited March 1,  2016). See also, Tehelka, The invisible baby makers, tehelka

Issue 50 volume 11,  2014- 12 -13,

available at http://www.tehelka.com/2014/12/the-invisible-baby-makers/(Last visited March 1,  2016).

  1. Catherine Woulfe, The untold story of NZ’s surrogate babies, Newzealand Listner

Current Affairs, Science available at http://www.listener.co.nz/current-affairs/the-untold-story-of-nzs-surrogate-babies/ (Last visited March 1, 2016).

See also Paula Penfold, Breakthrough in surrogacy mix-up case, newshub 30 Nov 2015, available at http://www.newshub.co.nz/tvshows/3d/breakthrough-in-surrogacy-mix-up-case-2015113017#ixzz44HpYYOiD (Last visited March 1, 2016).

  1. Steven Morris, Clinics urged to tighten checks after embryo mix-up theguardian, 9 July 2002,

available at http://www.theguardian.com/uk/2002/jul/09/health.healthandwellbeing ART Bill 2014

  1. UK .Gov, Human Fertilization Embryology Authority, available at http://www.hfea.gov.uk/25.html ( Last visited March 1, 2016).
  2. UK .Gov, Human Fertilization Embryology Authority , UK HEFA, Code of Practice , Guidance notes No. 17 , Use of gametes and embryos Storage of gametes and embryos available at http://www.hfea.gov.uk/505.html (Last visited March 1, 2016). See also,

UK .Gov, Human Fertilization Embryology Authority, UK HEFA, Press releases archive 2002, HFEA statement on the systems currently in place to prevent use of the ‘wrong’ infertility treatment, 11 September 2002, available at http://www.hfea.gov.uk/925.html (Last visited March 1,  2016).

10.Luca Gianaroli et al and Committee of the Special Interest Group on Embryology, ESHRE guidelines for good practice in IVF laboratories, Oxford Journals Medicine & Health Human Reproduction Volume 15, Issue , 10Pp. 2241-2246. June 26, 2000, available at http://humrep.oxfordjournals.org/content/15/10/2241.full (Last visited March 1,  2016).

  1. American Society for Reproductive Medicine, American Society for Reproductive Medicine (ASRM) , Disclosure of medical errors involving gametes and embryos: an Ethics Committee opinion, Elsevier Inc., 2015 , https://www.asrm.org/uploadedFiles/ASRM_Content/News_and_Publications/Ethics_Committee_Reports_and_Statements/disclose_errors.pdf
  2. Katherine, IVF Mistakes: Making Sure the Baby Is Yours

March 26, 2007, FoxNews.com, http://www.foxnews.com/story/2007/03/26/ivf-mistakes-making-sure-baby-is-yours.html