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Right to child care leave for the women attaining motherhood through Surrogacy in India. – K.Kalaiselvi vs Chennai Port Trust and P.Geetha vs The Kerala Livestock Development –

Pub. Info- “Right to child care leave for the women attaining motherhood through surrogacy in India” , Sonali Kusum, AIR’s Labour and industrial cases journal, Vol .48, Part 5 , May 2015 issue. Also available at (Right To Childcare Leave for Indian Intended Parents http://www.familiesthrusurrogacy.com/india-legal-issues.

Significance:

Until the discovery and practice of ART technology including surrogacy, the legal conceptualization and cognizance of motherhood was confined to merely two broad categories namely the biological and the non biological motherhood . While the former vested with the woman in parturition  established through the act of conception , gestation , child birthing  and such woman is called as natural mother. This form of motherhood is implied  in  the Evidence Act , Maternity Benefit Act. In the latter non biological motherhood women attains motherhood through exchange of custody, guardianship from the natural parents  through adoption as under the Adoption Act. However with surrogacy  there is  a new class of emerging mothers  as intended or commissioning mother who  attain motherhood  using the medical technology ART involving the service of surrogate mother who undergoes gestation and child birthing in place of the intended mother who is infertile or unfit for gestation , delivery  but in certain cases the intended mother may merely donates eggs or ova establishing biological connection. Thus the intended mother has the shared attributes of both these natural mother through biological connection and adoptive mother  with the intent to raise the child by assuming guardianship custody right over the child. There is a felt need to address the legal recognition of this emerging form of motherhood in the absence of any statutory law on the same at present in India.

This is very meaningfully and precisely summed up by Justice K Chandru “If law can provide child care leave in case of adoptive parents, then it should also apply to parents who obtained a child through a surrogate agreement. The object of such a leave is to take care of the child and develop a good bond between the child and the parents.” [1]

 

Introduction:

India has formally legalized surrogacy in the year 2008 in the case of Baby Manji vs Union of India[2] where in the supreme court formally legalized commercial surrogacy in India and directed for the formulation of Assisted Reproductive Technologies ( ART ) Bill[3], draft surrogacy law on the same. The ART Bill in its preamble grants right to child, right to family formation to the individuals through the access of ART including for having a surrogate child. The Bill under relevant provisions grants legal parentage to intending couple[4] as well as registration of names of intending couple in the birth certificate but at the same time there are certain gaps and a host of unaddressed issues related to the same. Though the Bill vest legal motherhood in the intending mother but the Bill neither provides safeguards for the maternity attained via use of such technology nor any such child care leave for the newly born surrogate child as granted to the woman having child in normal biological course and women adopting the child. In the absence of any statutory binding law on surrogacy coupled with omission in ART Bill to address the same. In addition to the statues, the case laws on this point has limitations. Though two landmark cases have been previously adjudicated  on the issue of motherhood determination but the court did not address the legal rights or entitlements associated with the intending mother.

However in the recent past there has been two trailblazer cases namely K.Kalaiselvi vs Chennai Port Trust and P.Geetha vs The Kerala Livestock Development which have raised the issue of grant of maternity leave or child care leave for the woman  using ART including surrogacy.  This case brings forth unprecedented issues which are first of its kind to be addressed by the court.

Facts of the case :

 

In K.Kalaiselvi vs Chennai Port Trust[5] at the Madras HC Case, the petitioner is an Assistant Superintendent in the Traffic department of the Chennai Port Trust who had a child through surrogacy. The petitioner requested for sanction of maternity leave to the Chennai Port Trust authority and the Ministry of Shipping and Surface Transport to look after the newly born girl child. But at both the forums she was denied the same. The petitioner seeks before the Madras HC for sanction of maternity leave to look after the newly born girl child and also sought for the issue for a direction to the Chennai Port Trust to grant leave to the petitioner on equal footing as that of the adoptive parents or the adoptive mother who is conferred with similar right to child care leave under Rule 3-A of the Madras Port Trust (Leave) Regulations, 1987. Similarly in the subsequent case,  P.Geetha vs The Kerala Livestock Development[6]  before Kerala HC, the petitioner who is an executive in the Kerala Livestock Development Board, commissions surrogacy being both the intending a well as the genetic mother  sought maternity leave from the respondent Kerala Livestock Development Board but the Kerala Livestock Development Board Limited Staff Rules & Regulations, 1993 do not permit maternity leave to the employees on ground other than ‘normal circumstances’ implying pregnancy in normal course as envisaged under the staff rules and therefore the petitioner is denied the leave, under these circumstances, the petitioner has filed the present writ petition for seeking child care leave to look after her surrogate baby.  It is significant to note that in this case the petitioner claiming the leave adduces pertinent argument stating that the there is no distinction between maternity by way of natural process and by way of ART as for all intents and purposes the intending parents are the natural or the biological parents with same set of rights and obligations and therefore denying the petitioner the maternity benefit is an instance of invidious discrimination affecting her fundamental right as a woman.  

Issues for determination:

In both these cases the common issue for the determination before the court was whether a woman employee is entitled to avail leave as maternity or child care  in case where she gets the child through surrogacy arrangement? Or whether these women availing surrogacy be granted the same benefit of child care which is provided to the adopted mothers.

Findings of the Court:

In this case the court had the occasion to dwell on a range of significant issues namely as concept of motherhood obtained via medical technology including surrogacy, the legal safeguard for maternity right, the right of child to health care, besides incorporation of international convention  laws into municipal law , beneficial interpretation of laws. These are briefly discussed as below.

The court revisits the notion of legal status of maternity or legal motherhood to include within its ambit motherhood attained through the use of advanced reproductive technology which may also have biological relation with the child. This is in keeping with the relevant provision of UDHR[7], UNCEDAW[8], Beijing Declaration[9] appropriately identified by the court, the provision states that maternity is a social function coupled with and recognition of the responsibility for upbringing and development of their children and imposes duty on the state government to allow maternity leave as social benefits and prevent discrimination against women on the grounds of maternity[10] and that Motherhood and childhood are entitled to special care and assistance and social protection for all children whether born in or out of wedlock under Universal Declaration of Human Rights[11] and also the Beijing Declaration and Platform for Action Fourth World Conference on Women, Articles 17 and 33 namely providing for the right of all women to control all aspects of their health, in particular their own fertility as is basic to their empowerment respectively. Accordingly the Kerala HC after held that women may attain motherhood through with advanced reproduction techniques ART and these women may be treated as same as natural biological mother and she should be entitled to same set of rights and obligations in the non-denial or non-recognition of such rights status of women would amount to discrimination against such women.

Following the legal recognition of maternity the court has also acknowledged the legal significance of mother child relation. The court redefines the concept of maternity right by taking from the international Convention No.183 of International Labour Organisation[12], or the Maternity Protection Convention (Revised), 1952, the General Conference of the ILO issued guidelines in its 88th Session on 30th May, 2000 which establishes that maternity has to be viewed holistically to include not only pregnancy but also child birth, rearing , bonding between mother and child.

The court upholds the right to health , survival , development and particularly formative care of the child. The court in consonance with the mandate of UNCRC[13] best interest of child and infant health care. The UNCRC under relevant provision states the right of the child to the enjoyment of the highest attainable standard of health[14] with special emphasis on the development of primary health care for children[15].  In furtherance of protecting the interest of child the UNCRC imposes primary responsibility on the parents for the upbringing and development of the child[16] coupled with duty on the states Parties to take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services[17]  The UNCRC secures every child right to life, survival , development of child [18]and  the convention expressly states that in all actions concerning children the  best interests of the child shall be a primary consideration[19]. The same mandate has been imbibed in the national constitution under directive principles of state policy which states that children are to be assured of facilities to develop in a healthy manner[20] and also in the national statutory laws namely the Commissions for Protection of Child Right Act [21] which reinforcing the best interest of child. In these context the court considers the need for surrogate’s child care and the guarantee of leave for the same.

The court after dwelling upon the protective safeguards for the intending mother and the child. The court also makes an assessment of the existing statutory law to explore for any scope of inclusion of child care leave, the court makes a perusal of  legislations like Maternity Benefit Act[22]and opines that the legislation is mother centric based on the proof of the act of parturition, gestation delivery. The grant of maternity benefit is made conditional upon the adducing necessary medical proof of pregnancy , confinement and is granted after calculating , counting of days from the fact of the actual day of her delivery including the preceding of the date of her delivery, during and any period immediately post the date of delivery for the grant of maternity benefit to be made to the mother[23]. This is established in an Irish case M.R. and D.R. & ors -v- An t-Ard-Chláraitheoir & ors[24] before Irish Supreme Court , it was held that “the individual at parturition is assumed to be the mother of the child as indicated by the latin maxim mater semper certa est meaning motherhood is certain and a fact ascertained by the act of parturition therefore proved.  The latter maxim is also incorporated and given effect in our Indian legislations as mentioned Maternity Benefit Act, Indian evidence Act which reinstates motherhood as a fact.

The court lays down the rule of inclusive, beneficial interpretation of reading into or by permitting or by inclusion of progressive modern developments within the scope of the existing laws, legislations. The court reiterates the landmark cases which apply the rule of inclusive , beneficial interpretation of laws in Laxmi Video Theatres v. State of Haryana[25],  the Supreme court read within the meaning of the term Cinematograph the progressive notions Video cassette recorder under Cinematograph Act after taking note of the subsequent scientific development in the concerned field which was not available at the time of the former legislation. Similarly in the Senior Electric Inspector v. Laxmi Naryana Chopra and Ors[26]  the Supreme Court included within the term telegraph line the subsequent technological development of telegraph wireless in the Indian Electricity Act, the court referred to All India Services (Leave) Rules, 1955, which recognized paternity leave to be granted under these rules along with maternity rules, though there was no specific mention of paternity leave  in the same but the court  by interpretation extended the meaning scope of same. This interpretation allows the growth of law in keeping with the changes in society and prevents the laws from becoming obsolete, regressive and expands the scope of law , judicial interpretation. The court follows the rule of application of international treaty law finding upon the legal vacuum in national arena when the municipal law is silent in certain regard as practiced in some of the celebrated case as Vishaka and others v. State of Rajasthan and others[27] and similarly refers to the international cases Lotus Case, 1927 (France v. Turkey)[28]where the relevant provisions of UNCEDAW, international treaty law were given direct effect respectively. In tandem the court referred to relevant Indian constitutional provisions namely Article 51(c) obligation to respect the international covenants, Article 253 Parliament’s power to give effect to International conventions which enable incorporation and giving effect of international law. The court refers to the Selvi v. State of Karnataka[29]which stresses on the application of international convention law into local law in India after  dwelling on the value of the Convention which has significant persuasive value.

Court Held & Observations :

In both these cases the court granted affirmatively the right to child care leave for the petitioner as requested by beneficial interpretation. In this case the court for the first time lays down the specific right namely right to child care leave for the intending mother or the women attaining maternity through surrogacy. The Madras High Court has extended the right for child care leave under Rule 3-A of the Madras Port Trust (Leave) Regulations which is granted to adoptive parents 1987 to include within this intending mother or a person who obtain child through surrogate arrangement following the appreciation of international human right conventions and beneficial interoperation of laws. Thus the court equated the status of a woman commissioning surrogacy to have a child to the status of a female obtaining of a child through surrogacy to adoption. The court granted this child care leave for the purpose of developing a bondage with the newly born child and in keeping with cardinal rule of UNCRC best interest of child, right of child to development, survival. The Kerala High court reiterates the judgment of Madras HC and similarly upheld the right of women to child care leave for the intending mother. The Court declares that there ought not to be any discrimination against a woman in grant of maternity benefits on the ground that she has obtained the baby through surrogacy. The court accepted the dichotomy of motherhood leading to technologically progressive means of attaining motherhood and accorded legal recognition to same. The court gave legal recognition to maternity leave as including mother child bonding leave, child care leave and sought to conform to the best interest of child principle as enshrined in UNCRC as well as under national laws.

Thus the case has an epoch making precedent value for the through discussion and appreciation of international human right conventions progressive rules of interpretations setting standards for legal developments in this field in near future. It may be posited that there is need to include child care leave in the ART Bill for the same in keeping this judicial dictum. The existing laws may be revised to afford legal cognizance to this form of motherhood as well as the child  parent in relationship. This technology is here to stay throwing up many incidental  issues which merits consideration and resolve in near future.

 

 

[1] TNN ,Should Mother of Surrogate Child be Entitled to Maternity Leave? Idiva , Mar 6th 2013http://idiva.com/news-work-life/should-mother-of-surrogate-child-be-entitled-to-maternity-leave/20006

[2] (2008) 13 S.C.C. 518

[3] The Assisted Reproductive Technologies (Regulation) Bill – 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (Last visited Feb. 15, 2014) [hereinafter ART Bill 2010.

[4] Ibid, § 34 (10) ART Bill 2010.

[5]Supra Note at 2.

[6] Supra Note at 3.

[7] Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at http://www.refworld.org/docid/3ae6b3712c.html (Last visited 16 February 2015).

[8] UNCEDAW, UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, available at http://www.refworld.org/docid/3ae6b3970.html (Last visited accessed 2 February 2015).

[9] Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women , United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, 27 October 1995, available at http://www.refworld.org/docid/3dde04324.html (Last visited  16 February 2015).

[10] Article 5(b), Article 11 2. (a) (b) UNCEDAW, UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, available at http://www.refworld.org/docid/3ae6b3970.html (Last visited 2 February 2015).

[11] Article 25(2), 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 16 February 2015).

[12] International Labour Organization Convention No. 183 (2000) concerning the revision of the Maternity Protection Convention, on 31 August 2010, and Convention No. 150 (1978) concerning Labour Administration: Role, Functions and Organisation, and the Maritime Labour Convention (2006), on 15 March 2013.

[13] UN General Assembly, Convention on the Rights of the Child, United Nations, Treaty Series, vol. 1577, p. 3,  20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at http://www.refworld.org/docid/3ae6b38f0.html (Last visited accessed 16 February 2015).

[14] Supra note at  14, Art. 24 (1).

[15] Ibid, Art. 24 (2),(b).

[16] Ibid,  Art. 18 (1) (2)

[17] Ibid, Art. 18 (3)

[18] Ibid, Article 6 (1) (2).

[19] Ibid, Article 3.

[20] Shukla V.N., Constitution of India, 201, (M.P.Singh Ed., Lucknow: Eastern Book Company, vol.2, 1999), Article 39.

[21] The Commissions For Protection Of Child Right Act 2005,  No. 4 of 2006,  (20th January, 2006,)

[22] Maternity Benefit Act 1961 ,  NO. 53 OF 1961 1 [12th December, 1961.

[23]Ibid, § 5 Maternity Benefit Act 1961.

[24] [2014] IESC 60 (7 November 2014).

[25] (1993) 3 SCC 715.

[26] [1962] 3 SCR 146.

[27] (1997) 6 SCC 241

[28] P.C.I.J. (SER. A) NO. 10 (1927).

[29] Criminal Appeal No. 1267 of 2004.

Single Mother Parenting – Recent Legal Judicial Decisions in India

There has been a drastic increase in the number of single parent families in the recent past following medical advancement as ART, IVF, surrogacy, life style choices to remain single or unmarried, divorce, widowhood, flexible single parent adoption regulations, among others. The courts in their judicial pronouncement have acknowledged the same after reiterating that “the single parent families are on the rise” 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 fertilization) technology”. (PTI, New Delhi May 21, 2016). In tandem with the same, there has been favorable changes in legal statues, policies, judicial pronouncements towards empowering women to attain single parenting.

Single Parent Adoption – Central Adoption Resource Agency (CARA) Guidelines 2015-  One of the most progressive development is the Central Adoption Resource Agency (CARA) Guidelines 2015 issued by the Ministry of Women and Child Development governing adoption of children that permits single female to adopt a child of any gender, whereas single male person is allowed to adopt only male child. Secondly the age limit for single parent adoption has been lowered from 30 to 25 as well.

Passport applications with the name of single unmarried mother alone –In a breakthrough judicial pronouncement of this year 2016, the Delhi High Court in Shalu Nigam & Anr vs The Regional Passport Officer & others, (Writ Petition (C) 155/2016 & CM APPLs. 684-685/2016) 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”. “A single woman can be a natural guardian and also a parent”.  Previously, In Mrs. B.S.Deepa vs The Regional Passport Officer, (Writ Petition No.29105 of 2014), The Madras High Court held that the Ministry of External Affairs is obliged to amend suitably the Passport Manual by incorporating additional columns in the passport applications for names of the step-parents, adoptive parents as required among others.

Passport Rules Proposed Amendment by Ministry of External Affairs (MEA)–In line with this judicial development, the MEA is proposing amendments in the existing Passport Rules to allow listing the mothers name alone to the exclusion of father’s name as the mandatory requisite in passport application. Following the recommendation of Ministry of DWCD on the same. The government acknowledged the contemporary socio economic, cultural changes in society on one hand and identified the lacunas in the existing passport rules which do not address concerns of single parents who have opted for IVF babies or surrogacy, for adopted children, children of divorced, step children among others. (The Economic Times (Bangalore) Jul 22 2016).

Birth Certificate, School Certificates, Passport with the name of single unmarried mother alone –  The supreme Court in ABC v. The State (NCT of Delhi) (Civil Appeal No. 5003 of 2015) directed the concerned civic authorities to issue birth certificate of the child with the mother’s name alone without requiring the name of the father subject to the requirement of an affidavit to be furnished by the concerned woman to this effect. An unmarried woman sought to be declared as the sole guardian of her child without sending notice to the other parent.   The court permitted the same and directed for ensuring the privacy of single unwed mother. Futher, the Supreme Court also held that the name of the father is not required in securing child’s birth certificate, passport and school certificates, and related documents.

Formerly,  The Gujarat High Court in Rashi Yogesh Sadariya  vs Director & others, (Special Civil Application No. 12924 of 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”.

At the outset, these landmarks cases are setting precedents to be followed in the subsequent cases and charting out unprecedented rights, better entitlements for women following liberal interpretation, amendments accommodating modern trends of family formation.

Right to child care leave for the women attaining motherhood through Surrogacy in India- K.Kalaiselvi vs Chennai Port Trust [1]and P.Geetha vs The Kerala Livestock Development [2] –

Pub. Info- “Right to child care leave for the women attaining motherhood through surrogacy in India” , Sonali Kusum, AIR’s Labour and industrial cases journal, Vol .48, Part 5 , May 2015 issue.

Significance:

Until the discovery and practice of ART technology including surrogacy, the legal conceptualization and cognizance of motherhood was confined to merely two broad categories namely the biological and the non biological motherhood . While the former vested with the woman in parturition  established through the act of conception , gestation , child birthing  and such woman is called as natural mother. This form of motherhood is implied  in  the Evidence Act , Maternity Benefit Act. In the latter non biological motherhood women attains motherhood through exchange of custody, guardianship from the natural parents  through adoption as under the Adoption Act. However with surrogacy  there is  a new class of emerging mothers  as intended or commissioning mother who  attain motherhood  using  the medical technology ART involving the service of surrogate mother who undergoes gestation and child birthing in place of the intended mother who is infertile or unfit for gestation , delivery  but in certain cases the intended mother may merely donates eggs or ova establishing biological connection. Thus the intended mother has the shared attributes of both these natural mother through biological connection and adoptive mother  with the intent to raise the child by assuming guardianship custody right over the child. There is a felt need to address the legal recognition of this emerging form of motherhood in the absence of any statutory law on the same at present in India.

This is very meaningfully and precisely summed up by Justice K Chandru “If law can provide child care leave in case of adoptive parents, then it should also apply to parents who obtained a child through a surrogate agreement. The object of such a leave is to take care of the child and develop a good bond between the child and the parents.” [3]

Introduction:

India has formally legalized surrogacy in the year 2008 in the case of Baby Manji vs Union of India[4] where in the supreme court formally legalized commercial surrogacy in India and directed for the formulation of Assisted Reproductive Technologies ( ART ) Bill[5], draft surrogacy law on the same. The ART Bill in its preamble grants right to child, right to family formation to the individuals through the access of ART including for having a surrogate child. The Bill under relevant provisions grants legal parentage to intending couple[6] as well as registration of names of intending couple in the birth certificate but at the same time there are certain gaps and a host of unaddressed issues related to the same. Though the Bill vest legal motherhood in the intending mother but the Bill neither provides safeguards for the maternity attained via use of such technology nor any such child care leave for the newly born surrogate child as granted to the woman having child in normal biological course and women adopting the child. In the absence of any statutory binding law on surrogacy coupled with omission in ART Bill to address the same. In addition to the statues, the case laws on this point has limitations. Though two landmark cases have been previously adjudicated  on the issue of motherhood determination but the court did not address the legal rights or entitlements associated with the intending mother.

However in the recent past there has been two trailblazer cases namely K.Kalaiselvi vs Chennai Port Trust and P.Geetha vs The Kerala Livestock Development which have raised the issue of grant of maternity leave or child care leave for the woman  using ART including surrogacy.  This case brings forth unprecedented issues which are first of its kind to be addressed by the court.

Facts of the case :

In K.Kalaiselvi vs Chennai Port Trust[7] at the Madras HC Case, the petitioner is an Assistant Superintendent in the Traffic department of the Chennai Port Trust who had a child through surrogacy. The petitioner requested for sanction of maternity leave to the Chennai Port Trust authority and the Ministry of Shipping and Surface Transport to look after the newly born girl child. But at both the forums she was denied the same. The petitioner seeks before the Madras HC for sanction of maternity leave to look after the newly born girl child and also sought for the issue for a direction to the Chennai Port Trust to grant leave to the petitioner on equal footing as that of the adoptive parents or the adoptive mother who is conferred with similar right to child care leave under Rule 3-A of the Madras Port Trust (Leave) Regulations, 1987. Similarly in the subsequent case,  P.Geetha vs The Kerala Livestock Development[8]  before Kerala HC, the petitioner who is an executive in the Kerala Livestock Development Board, commissions surrogacy being both the intending a well as the genetic mother  sought maternity leave from the respondent Kerala Livestock Development Board but the Kerala Livestock Development Board Limited Staff Rules & Regulations, 1993 do not permit maternity leave to the employees on ground other than ‘normal circumstances’ implying pregnancy in normal course as envisaged under the staff rules and therefore the petitioner is denied the leave, under these circumstances, the petitioner has filed the present writ petition for seeking child care leave to look after her surrogate baby.  It is significant to note that in this case the petitioner claiming the leave adduces pertinent argument stating that the there is no distinction between maternity by way of natural process and by way of ART as for all intents and purposes the intending parents are the natural or the biological parents with same set of rights and obligations and therefore denying the petitioner the maternity benefit is an instance of invidious discrimination affecting her fundamental right as a woman.   

Issues for determination:

In both these cases the common issue for the determination before the court was whether a woman employee is entitled to avail leave as maternity or child care  in case where she gets the child through surrogacy arrangement? Or whether these women availing surrogacy be granted the same benefit of child care which is provided to the adopted mothers.

Findings of the Court:

In this case the court had the occasion to dwell on a range of significant issues namely as concept of motherhood obtained via medical technology including surrogacy, the legal safeguard for maternity right, the right of child to health care, besides incorporation of international convention  laws into municipal law , beneficial interpretation of laws. These are briefly discussed as below.

The court revisits the notion of legal status of maternity or legal motherhood to include within its ambit motherhood attained through the use of advanced reproductive technology which may also have biological relation with the child. This is in keeping with the relevant provision of UDHR[9], UNCEDAW[10], Beijing Declaration[11] appropriately identified by the court, the provision states that maternity is a social function coupled with and recognition of the responsibility for upbringing and development of their children and imposes duty on the state government to allow maternity leave as social benefits and prevent discrimination against women on the grounds of maternity[12] and that Motherhood and childhood are entitled to special care and assistance and social protection for all children whether born in or out of wedlock under Universal Declaration of Human Rights[13] and also the Beijing Declaration and Platform for Action Fourth World Conference on Women, Articles 17 and 33 namely providing for the right of all women to control all aspects of their health, in particular their own fertility as is basic to their empowerment respectively. Accordingly the Kerala HC after held that women may attain motherhood through with advanced reproduction techniques ART and these women may be treated as same as natural biological mother and she should be entitled to same set of rights and obligations in the non-denial or non-recognition of such rights status of women would amount to discrimination against such women.

Following the legal recognition of maternity the court has also acknowledged the legal significance of mother child relation. The court redefines the concept of maternity right by taking from the international Convention No.183 of International Labour Organisation[14], or the Maternity Protection Convention (Revised), 1952, the General Conference of the ILO issued guidelines in its 88th Session on 30th May, 2000 which establishes that maternity has to be viewed holistically to include not only pregnancy but also child birth, rearing , bonding between mother and child.

The court upholds the right to health , survival , development and particularly formative care of the child. The court in consonance with the mandate of UNCRC[15] best interest of child and infant health care. The UNCRC under relevant provision states the right of the child to the enjoyment of the highest attainable standard of health[16] with special emphasis on the development of primary health care for children[17].  In furtherance of protecting the interest of child the UNCRC imposes primary responsibility on the parents for the upbringing and development of the child[18] coupled with duty on the states Parties to take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services[19]  The UNCRC secures every child right to life, survival , development of child [20]and  the convention expressly states that in all actions concerning children the  best interests of the child shall be a primary consideration[21]. The same mandate has been imbibed in the national constitution under directive principles of state policy which states that children are to be assured of facilities to develop in a healthy manner[22] and also in the national statutory laws namely the Commissions for Protection of Child Right Act [23] which reinforcing the best interest of child. In these context the court considers the need for surrogate’s child care and the guarantee of leave for the same.

The court after dwelling upon the protective safeguards for the intending mother and the child. The court also makes an assessment of the existing statutory law to explore for any scope of inclusion of child care leave, the court makes a perusal of  legislation like Maternity Benefit Act[24]and opines that the legislation is mother centric based on the proof of the act of parturition, gestation delivery. The grant of maternity benefit is made conditional upon the adducing necessary medical proof of pregnancy , confinement and is granted after calculating , counting of days from the fact of the actual day of her delivery including the preceding of the date of her delivery, during and any period immediately post the date of delivery for the grant of maternity benefit to be made to the mother[25]. This is established in an Irish case M.R. and D.R. & ors -v- An t-Ard-Chláraitheoir & ors[26] before Irish Supreme Court , it was held that “the individual at parturition is assumed to be the mother of the child as indicated by the latin maxim mater semper certa est meaning motherhood is certain and a fact ascertained by the act of parturition therefore proved.  The latter maxim is also incorporated and given effect in our Indian legislation as mentioned Maternity Benefit Act, Indian evidence Act which reinstates motherhood as a fact.

The court lays down the rule of inclusive, beneficial interpretation of reading into or by permitting or by inclusion of progressive modern developments within the scope of the existing laws, legislation. The court reiterates the landmark cases which apply the rule of inclusive , beneficial interpretation of laws in Laxmi Video Theatres v. State of Haryana[27],  the Supreme court read within the meaning of the term Cinematograph the progressive notions Video cassette recorder under Cinematograph Act after taking note of the subsequent scientific development in the concerned field which was not available at the time of the former legislation. Similarly in the Senior Electric Inspector v. Laxmi Naryana Chopra and Ors[28]  the Supreme Court included within the term telegraph line the subsequent technological development of telegraph wireless in the Indian Electricity Act, the court referred to All India Services (Leave) Rules, 1955, which recognized paternity leave to be granted under these rules along with maternity rules, though there was no specific mention of paternity leave  in the same but the court  by interpretation extended the meaning scope of same. This interpretation allows the growth of law in keeping with the changes in society and prevents the laws from becoming obsolete, regressive and expands the scope of law , judicial interpretation. The court follows the rule of application of international treaty law finding upon the legal vacuum in national arena when the municipal law is silent in certain regard as practiced in some of the celebrated case as Vishaka and others v. State of Rajasthan and others[29] and similarly refers to the international cases Lotus Case, 1927 (France v. Turkey)[30]where the relevant provisions of UNCEDAW, international treaty law were given direct effect respectively. In tandem the court referred to relevant Indian constitutional provisions namely Article 51(c) obligation to respect the international covenants, Article 253 Parliament’s power to give effect to International conventions which enable incorporation and giving effect of international law. The court refers to the Selvi v. State of Karnataka[31]which stresses on the application of international convention law into local law in India after  dwelling on the value of the Convention which has significant persuasive value.

Court Held & Observations :

In both these cases the court granted affirmatively the right to child care leave for the petitioner as requested by beneficial interpretation. In this case the court for the first time lays down the specific right namely right to child care leave for the intending mother or the women attaining maternity through surrogacy. The Madras High Court has extended the right for child care leave under Rule 3-A of the Madras Port Trust (Leave) Regulations which is granted to adoptive parents 1987 to include within this intending mother or a person who obtain child through surrogate arrangement following the appreciation of international human right conventions and beneficial interoperation of laws. Thus the court equated the status of a woman commissioning surrogacy to have a child to the status of a female obtaining of a child through surrogacy to adoption. The court granted this child care leave for the purpose of developing a bondage with the newly born child and in keeping with cardinal rule of UNCRC best interest of child, right of child to development, survival. The Kerala High court reiterates the judgment of Madras HC and similarly upheld the right of women to child care leave for the intending mother. The Court declares that there ought not to be any discrimination against a woman in grant of maternity benefits on the ground that she has obtained the baby through surrogacy. The court accepted the dichotomy of motherhood leading to technologically progressive means of attaining motherhood and accorded legal recognition to same. The court gave legal recognition to maternity leave as including mother child bonding leave, child care leave and sought to conform to the best interest of child principle as enshrined in UNCRC as well as under national laws.

Thus the case has an epoch making precedent value for the through discussion and appreciation of international human right conventions progressive rules of interpretations setting standards for legal developments in this field in near future. It may be posited that there is need to include child care leave in the ART Bill for the same in keeping this judicial dictum. The existing laws may be revised to afford legal cognizance to this form of motherhood as well as the child  parent in relationship. This technology is here to stay throwing up many incidental  issues which merits consideration and resolve in near future.

References-

[1] W.P.No.8188 of 2012

[2] WP(C).No. 20680 of 2014 (H),18 June, 2014 

[3] TNN ,Should Mother of Surrogate Child be Entitled to Maternity Leave? Idiva , Mar 6th 2013http://idiva.com/news-work-life/should-mother-of-surrogate-child-be-entitled-to-maternity-leave/20006

[4] (2008) 13 S.C.C. 518

[5] The Assisted Reproductive Technologies (Regulation) Bill – 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (Last visited Feb. 15, 2014) [hereinafter ART Bill 2010.

[6] Ibid, § 34 (10) ART Bill 2010.

[7]Supra Note at 2.

[8] Supra Note at 3.

[9] Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at http://www.refworld.org/docid/3ae6b3712c.html (Last visited 16 February 2015).

[10] UNCEDAW, UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, available at http://www.refworld.org/docid/3ae6b3970.html (Last visited accessed 2 February 2015).

[11] Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women , United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, 27 October 1995, available at http://www.refworld.org/docid/3dde04324.html (Last visited  16 February 2015).

[12] Article 5(b), Article 11 2. (a) (b) UNCEDAW, UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, available at http://www.refworld.org/docid/3ae6b3970.html (Last visited 2 February 2015).

[13] Article 25(2), 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 16 February 2015).

[14] International Labour Organization Convention No. 183 (2000) concerning the revision of the Maternity Protection Convention, on 31 August 2010, and Convention No. 150 (1978) concerning Labour Administration: Role, Functions and Organisation, and the Maritime Labour Convention (2006), on 15 March 2013.

[15] UN General Assembly, Convention on the Rights of the Child, United Nations, Treaty Series, vol. 1577, p. 3,  20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at http://www.refworld.org/docid/3ae6b38f0.html (Last visited accessed 16 February 2015).

[16] Supra note at  14, Art. 24 (1).

[17] Ibid, Art. 24 (2),(b).

[18] Ibid,  Art. 18 (1) (2)

[19] Ibid, Art. 18 (3)

[20] Ibid, Article 6 (1) (2).

[21] Ibid, Article 3.

[22] Shukla V.N., Constitution of India, 201, (M.P.Singh Ed., Lucknow: Eastern Book Company, vol.2, 1999), Article 39.

[23] The Commissions For Protection Of Child Right Act 2005,  No. 4 of 2006,  (20th January, 2006,)

[24] Maternity Benefit Act 1961 ,  NO. 53 OF 1961 1 [12th December, 1961.

[25]Ibid, § 5 Maternity Benefit Act 1961.

[26] [2014] IESC 60 (7 November 2014).

[27] (1993) 3 SCC 715.

[28] [1962] 3 SCR 146.

[29] (1997) 6 SCC 241

[30] P.C.I.J. (SER. A) NO. 10 (1927).

[31] Criminal Appeal No. 1267 of 2004.

A brief overview of Indian Surrogacy Law ( ART) Regulations Bill 2013

Pub. Info- A brief overview of Indian Surrogacy Law ( ART)  Regulations Bill 2013,  Legislative Comment , NLSIU  LLM Journal of Law , NLJL , (ISSN: 2349-5723) Volume 1 Number 2 of NLSIU LL.M. Journal of Law (NLJL), July 2014.

A Brief Overview of Indian Surrogacy Law: ART (Regulations) Bill, 2013.

Abstract

There has been a felt legal void on surrogacy in India following its legalization since 2002, as it remains outside the purview of functioning of any law, there is absence of effective statutory law on the same. However several attempts have been made towards enacting a statutory law for its regulation but these attempts have only resulted in drafting of Bills which has not been given any binding effect till date. Presently there is a draft Assisted Reproductive Technology (ART) Bill 2010 and parallel to this, there is a proposed draft ART Bill 2013 seeking to improvise on the former which is being tabled for discussion and deliberation.

One of the main objectives of this paper is to make critical assessment of the provisions under proposed Bill on surrogacy and its potential to put a check or control on the unfair practices under the garb of surrogacy, and secondly to make a brief comparative study of the recent proposed law with the previously existing draft in order to not only identify the differences but also to appreciate its relative merits and demerits over the previous drafts.

The paper involves application of descriptive research and explanatory research in order to gain better understanding of the proposed law, in tandem with the existing legal instruments on surrogacy and to identify the novel provisions in the proposed law seeking to introduce a new legal regime on surrogacy in India with requisite necessary measures towards progressive development of law on the same.

  1. Introduction

Surrogacy in commercial form has been legalized   in India following the landmark judgment of Supreme Court of India in Yamanda Manji case[1] by providing for monetary payment to be made by the intending couple to the surrogate mothers under a surrogacy agreement to this effect which is held legally enforceable in India.

There is absence of law on surrogacy in India despite this India has earned itself the sobriquet of “Surrogacy capital of the world” with an ART Industry worth $ 450 million annually in India[2]  considering the same supreme court has directed for enacting law on the same.

There has been a series of legal instruments towards the enactment of a statute on surrogacy law in India, commencing with Indian Council of Medical Research (ICMR) Guidelines on Surrogacy of 2005[3] which was further developed into Assisted Reproductive Technologies (Regulations) Bill 2008[4]with necessary changes of modifications the draft ART Bill 2010[5] and at present there is a draft ART Bill 2013.  All these drafts have been criticized for insufficient safeguards for the surrogate mother and the surrogate child. Accordingly the Planning Commission of India has proposed for consultation to recommend better regulatory measures in the Bill.[6]   It is significant to understand the significance of law on surrogacy as it touches upon one of the most significant  human entitlement of access to infertility treatment including surrogacy for attainment of better reproductive health  which is an essential component of right to health consequently right to  life, right build family, have children.[7]  Thus, the law needs to pay serious consideration to the same and not become another hasty piece of legislation therefore an assessment of the law as present draft  is required.

  1. Some of the Salient Provisions of the ART Bill 2013

Primarily, the ART Bill 2013 seeks to revise the earlier ART Bill 2010 with novel provisions and monitoring mechanism. The ART Bill 2013 is at present before the cabinet for review . Meanwhile, the law appears to have changed hands from the Ministry of Health & Family welfare to the Ministry of Law & justice government of India and accordingly the concerns under the law also seems to have undergone a change, the 2013 proposes for better regulations on surrogacy for medically, socially ethically desirable purposes with minimum risk and harm to the parties involved and to extend benefit to the society.

However it is only pertinent to consider the 2013 Bill and see if the Bill is mere re writing of the earlier draft or otherwise , in the light of these , hence comparative and critical study of the Bill 2013 and the previous drafts are undertaken.

  1. Limited and Narrow Objective Establishing Administrative Bodies

To begin with, the objective of the 2013 Bill remains the same as in the previous Bill of 2010 providing for the establishment of the administrative or regulatory bodies namely National, State Advisory Body, National registry for regulating the conduct of surrogacy arrangements in India. such an objective of the Bill appears very narrow and limited considering the broad range of issues and related concerns falling under the Bill, the ART Bill by providing for infertility treatment through surrogacy brings within itself  many incidentally crucial areas like inclusion of third party as a gestational carrier or surrogate mother,  involvement of the anonymous gamete donors namely the egg, sperm donors ultimately marking the  birth of surrogate child , thereby including possibly  five individuals namely the intending father  and mother, egg donor sperm donor, surrogate mother  who are brought together under the surrogacy arrangement for facilitating the birth to the surrogate child who may have competing claims of  parentage over the surrogate child. Thus surrogacy is not mere medical treatment involving medicine, machines ,but an entire arrangement involving human participants in different functional capacity whose rights, duties, legal capacity or status, inter relationship with others  are required to be stated. The safeguards for such human participants must be must be defined and given utmost priority in the Bill. on similar lines, It may appear worthwhile to have a comparative look at the other progressive legislations on surrogacy which provide for a broader objective, the UK Surrogacy law namely the HEFA Act,[8] Australia, New South Wales Surrogacy law[9] which expressly provide for recognition of status of children born from the surrogacy arrangements, the safeguards for surrogate mothers among other the things.

The  Bill omitting to include a host of significant issues namely the recognition of surrogacy agreement, rights, obligation, safeguards of the human participants or individuals availing of ART namely the Gamete Donors ,Gestational carrier, Surrogate mothers, Intending Parents and status of the child born out of such arrangements appear limited and narrow in its objective and hence criticized. Therefore, the objective of the Bill by seeking to permit surrogacy and providing for setting merely administrative bodies for its regulating may not suffice, considering the significance of the same.

  1. Definition of Surrogacy Agreement as an Agreement not Contract

Considering the definition clause, the definitions of the key terms namely surrogacy, surrogate mother, Intending couple, and, surrogate child remain the same as in the 2010 draft. There has been a minor change in the definition of surrogacy agreement[10] in the recent ART Bill 2013. For instance, the term surrogacy agreement has been defined as an agreement between persons availing ART treatment and surrogate mothers,[11] whereas the ART Bill 2010 defined surrogacy agreement as a contract between persons availing ART treatment and surrogate mothers,[12] thus the change in the 2013 draft is the use of term agreement rather than contract as used in the predecessor one. The term contract in legal parlance as defined means an agreement enforceable under the law and thus a legally binding agreement. The use of the term agreement over contract appears vague in the 2013 draft and appears mere change of words considering the need for enforceability and legal effect of surrogacy agreement.

  1. Egg Donation Reduced to Three Attempts from Six Attempts

In ART Bill 2013, the number of times a women may donate eggs in her life time has been reduced to only three attempts[13] from the earlier permissible limit of six attempts under the 2010 draft.[14]  This is a beneficial health provision seeking to protect the reproductive health of the egg donor by reducing the egg donation it prevents the egg donor from high dosages and repeated quanities of hormonal drugs being administered for production of  eggs  otherwise than in natural course and such hormonal drugs may lead to excessive stimulation leading to a hazardous condition like Ovarian Hyper stimulation syndrome ( OHSS ) which leads to death in certain case among other health risks[15].

  1. Woman May Serve As Surrogate Mothers Only Upto Three Times with a Minimum Of Two Year Gap

Under the ART Bill 2013 a woman is permitted to be surrogate mother only upto three times including her own children[16] where as the 2010 draft permitted upto 5 times inclusive of her own children.[17]  In addition to this, the 2013 draft imposes a minimum of two year interval between the two deliveries, which was absent in the previous draft. The Bill seeks to better safeguard the reproductive health of surrogate mother by introducing necessary restriction and time gap. as it is a well researched and reported fact that there are certain health risks associated with surrogate pregnancy involving in vitro fertilization technique which may pose serious health risk and hazards namely Ovarian Hyperstimulation syndrome (OHSS ), miscarriages, multiple births, C section Delivery, Ectopic pregnancy, Ovarian cancer.[18] These health risks in surrogate pregnancy are incidental side effects which may not be ruled out. Thus by preventing repeated pregnancy it reduces the scope for serious impairment of health of surrogate mothers.

Though these provisions suggest changes over the 2010 draft but these changes only appear as mere increase or decrease in the number but not substantive change. The maximum number of IVF cycle a women as a surrogate mother may undergo and the maximum number of eggs that may be retrieved are not specified under the draft bill 2013. Considering the innumerable health risks associated with IVF to the extent of death, Ovarian Hyper Stimulation Syndrome (OHSS), and health disabilities and uncertain success rate of IVF; it is imperative that these standards are stipulated in order to safeguard the reproductive health of women.

  1. Heterosexuals Only To Avail Surrogacy

The ART Bill 2013 permits all individuals including single persons and married couples to avail surrogacy in India.[19] Further, the bill defines couple including as relationship between male and female only.[20]  Simultaneous reading of these provisions arrives at the unjustified conclusion that the bill categorically takes away the right to avail surrogacy from the homosexuals, the lesbians and gays. Such denial of access to treatment from the homosexuals would constitute discrimination on the ground of sexual orientation. It may be stated that for such homosexuals, surrogacy as ART treatment may be the only means to have children biologically related to them or to have children at all and build family.

  1. Prohibition on Sex selective Tests & Greater Punishment and liability

The ART Bill 2013 imposes prohibition on ART clinic on conducting sex determinative test and offering to providing a child with predetermined sex.[21]  Correspondingly, the ART Bill 2013 imposes punishment against the conduct of the sex selective determination test by the ART Clinic, ART Bank, agents and increases the punishment upto five years of jail term with fine maximum of ten lakhs.[22] Whereas in the previous draft, the fine amount wasnot specified.[23]  Besides the 2013 draft imposes liability on ART Bank, Agents in addition to ART Clinic which was not present in the 2010 draft.

  1. Forum for filing complaint at Metropolitan Magistrate or Judicial Magistrate of First Class

The ART Bill 2013 provides for the Court of Metropolitan Magistrate or Judicial Magistrate of first class to be the appropriate forum for filing complaint,[24] whereas the ART Bill 2010 had no such provision on forum.

  1. Creation establishment of National Registry of ART Clinics and Banks in India

One of the new additions in the 2013 draft Bill[25] is the inclusion of the National Registry of ART Clinics and Banks in India which performs the function of safe record keeping for a period of 10 years. Whereas in the 2010 Bill there was no mention of this Registry andthe function of record keeping was entrusted with the ART Bank, Department of Heath Research.

  1. Import Export of Frozen Human Gametes Embryos Permissible

The ART Bill 2013 permits import and export of frozen human gametes embryos for therapeutic purpose subject to necessary permission from the Registry,[26] however in the previous draft of 2010 there was no such provision for import or export of gametes, embryos even for therapeutic purpose rather there had been absolute prohibition on the same.[27]

  1. Written Consent Not Informed Written Consent

The ART Bill 2013 as well ART Bill 2010, both provide for obtaining consent from parties availing surrogacy, but the terminology used in both the drafts is different. The recent 2013 draft provides for obtaining mere “written consent” from parties seeking to avail surrogacy[28] whereas the predecessor draft of 2010 provides for obtaining “informed consent.’[29] It may be stead here that the concept of “informed consent” is not only preferred over “written consent’’ but is  largely accepted and supported under the national international  biomedical conventions, namely Universal Declaration on Bioethics and Human Rights,[30] and the Ethical Guidelines for Bio Medical Research on Human Participants prescribed by the ICMR.[31] By using the term ‘written consent,’ the ART Bill 2013 differs from the Bio medical ethics.

As the concept of informed consent essentially implies within itself availability or supplying of information at the first place and then the and then understanding the same information to take decision there upon the consent formation where as written consent only refers to the mode or medium of expressing consent which may be recorded as oral or written, besides written consent does not imply any availability of information and understanding.

In case of surrogacy arrangements , informed consent is pertinent considering the specialized nature of surrogacy  involving assisted reproductive  medical  technology with its implications on health, consequent side effects and surrogacy agreement the legal obligations arising out of such agreement. Thus any consent formation among the parties on surrogacy would require them to have such information and understand the same and subsequently form the consent hence necessitating informed consent. In a crucial treatment like surrogacy such informed consent may be strongly recommended.

  1. Insurance for Surrogate Mother and Surrogate Child

The ART Bill 2013 seeks to provide insurance for the surrogate mother but makes it subject to availability,[32] thus it may not be necessarily complied with in all cases for the want of un-availability of insurance schemes to cover the surrogate mothers. It may be pertinent to mention here one such case where there was absence of insurance scheme covering surrogate pregnancy for the surrogate mother who died following the delivery of the surrogate baby in the state of Gujarat, India but was not entitled to any insurance scheme either under the law or under the surrogacy agreement therefore no claim for insurance could be made by her behalf by her surviving husband or family. [33]

In addition to the insurance cover for the surrogate mother, one of the progressive provision of the 2013 draft  is insurance cover for the surrogate child or children till the age of twenty one years or till the time their custody is taken,[34] such a provision is absent in the ART Bill 2010.

  1. Offences by medical practitioner more stringent

The offences by the medical practitioners under the recent ART Bill 2013 are made more stringent or rigorous by increasing the punishment at the first instance is provided as a jail term for five years and fine upto ten lakh rupees[35] which in the 2010 draft was three years and the fine amount was not specified.[36] Further, on second instance the punishment is jail term for seven years and fine up to fifteen lakhs, which in the 2010 draft was five years and the fine amount is not specified. It appears that the recent ART Bill 2013, while most of the provisions in the draft are reiterated verbatim, it appears that the changes are cosmetic and the main objective of introducing this draft is not clear. The ART Bill 2013 has largely the same limitations and legally vexatious issues which its predecessor the draft 2010, 2008 retained.

III. Inadequacies & Omissions in the ART Bill 2013

Some of the crucial and incidental issues concerning surrogacy are either inadequately addressed or un-addressed in both the drafts of the year 2010 and 2013, and therefore merit consideration. These may be illustratively listed here.

  1. No Insurance for the Egg Donor

There is no insurance for the egg donor either under the 2010 draft or under the 2013 draft but only for surrogate mother subject to availability. The insurance for both the surrogate mother and the egg donor must be made strictly mandatory to be complied with in all cases. Much to the disgrace of the 2013 draft and its predecessor drafts, there has been a reported death of a 26 year old egg donor in Delhi in January 2013 due to the possible reasons of over dosages of Hormonal drugs, injections to produce more eggs than the normal resulting in Ovarian Hyper Stimulation Syndrome (OHSS) and cardiac arrest, thereby leading to her death in few hours following the egg retrieval in the hospital itself.[37]  This unfortunate case itself evinces the need for insurance and safeguards for the egg donor including health counseling, screening among others for the egg donor, the vagueness or ambiguity in defining the standard limit of the oocytes to be placed in a women and the gross irregularities of the clinic.

  1. No Post maternity or Post Delivery care for the Surrogate Mother

The 2013 and the 2010 Bills provide medication, food or health safeguards only during the term of Surrogate pregnancy; but do not provide for any post maternity care or medical treatment for the surrogate mother for any sickness disability arising out of the adverse consequences of surrogate pregnancy.

  1. No Breastfeeding for Surrogate Child

Under both the drafts of the ART Bill, the 2010 and the recent 2013, the surrogate child is deprived of breast feeding as Bill does not provide for the surrogate mother to breast feed the surrogate child. This is one of the grave or serious deprivation or denial of health, growth, development of surrogate child.[38] World Health Organization strongly recommends for breastfeeding of all children including surrogate children for their highly nutritional value and its contribution towards the early development of child.[39]

  1. No Legal Counseling for Surrogate Mother

The Bills, both the previous 2010 and the present 2013 draft, do not provide free legal counseling for the surrogate mother. The surrogate mothers lack understanding of Surrogacy Agreement,[40] the implications, the rights and obligations arising thereunder and the consequences on breach of this agreement among other things.  Therefore, necessary legal counseling must be provided.

  1. Trafficking surrogate children or Baby Selling not included as Offence

Though the ART Bills, 2010 and 2013 provide a list of offences and prescribe punishments for the same; certain offense namely trafficking of surrogate children, baby selling under the garb of surrogacy and incidental offences are not included under the ART Bill 2010. It may be appropriate to mention here the case of Doctor running a fertility clinic in Gujarat India arrested for baby selling under the garb of surrogacy.[41]

  1. No Background Screening for Intending Couple

Under both the Bill 2010 and 2013, there is neither assessment of individual’s background or screening of individual’s ability to be fit parent prescribed for the intending couple seeking to avail surrogacy, nor there is a body appointed for this purpose. Thus, taking advantage of such position an Israeli pedophile who had served a year-and-a-half in jail for sexually abusing children got a surrogate baby girl in India and left Indian territory which subsequently was detected in Israel.[42] The only criteria laid down for intending couple is their  marital status as heterosexual married male and female  and age  to be above 21 years and no other criteria is laid down.

  1. No Upper Age Limit Prescribed for Intending Couple to Avail Surrogacy

The ART Bills 2010 and 2013 provide the minimum age limit as 21 years for the intending couple but the maximum age limit for intending couple is not laid down but the Bill provides for both the minimum and the maximum age limit for egg donor surrogate mother to be between 21 years to 35 years. In absence of such defined maximum age limit for the intending couple,  a couple of above 55 years or 60 years or above may avail surrogacy to have children and there would be noting in law to prevent the same. This may not necessarily be in the interest of new born child.

  1. Ending Comments

The Bill in substance and spirit remains the same, save a few minor modifications. However a few progressive provisions have been made as discussed above but there the wide range of omissions and inadequacies under the Bill which  needs immediate consideration. In light of issues mentioned, it is imperative that the ART Bill 2013 is revisited to incorporate some of the pressing concerns discussed above.

The need of the hour is early enforcement of law to put a check on the non compliance and misuse of this technology.

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

[2] First person, India’s booming surrogacy business, Guardian Weekly, Dec. 30,  2009, available at http://www.theguardian.com/world/2009/dec/30/india-women (last visited Feb. 15, 2014).

[3] ICMR National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, 2005, available at  http://icmr.nic.in/art/art_clinics.htm (last visited Feb. 15, 2014).

[4] Indian Council of Medical Research. The Assisted Reproductive Technology (Regulation) Bill– 2008(Draft) Ministry of Health and Family Welfare, Government of India,  available at http://icmr.nic.in/art/Draft%20ART%20(Regulation)%20Bill%20&%20Rules%20-%202008-1.PDF (last visited Feb. 15, 2014) [hereinafter Draft Bill 2008].

[5] The Assisted Reproductive Technologies (Regulation) Bill – 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (last visited Feb. 15, 2014) [hereinafter ART Bill 2010].

[6] Aarti Dhar, Of Surrogacy And The Law, The Hindu, Aug. 1, 2013, available at http://www.thehindu.com/todays-paper/tp-national/of-surrogacy-and-the-law/article4976034.ece (last visited Feb. 25, 2014). See also, Civil Society Window Presentation, Challenges posed by Commercial Surrogacy in India by SAMA Resource Group for Women and Health , 24. 07. 2013, Yojana Bhawan , Chairperson DR. Syaeda Hameed , Member Planning commission http://planningcommission.nic.in/data/ngo/csw_pres/csw_surrogacy0612.pdf (last visited Feb. 11, 2014).

[7] See generally, Parmanand Katara v. Union of India, A.I.R. 1989 S.C. 2039; R. Rajagopal vs State Of T.N, 1994 S.C.C. (6) 632; Kharak Singh v. State of U.P., (1964) 1 S.C.R. 332; B. K. Parthasarthi v. Government of Andhra Pradesh, A.I.R. 2000 A. P. 156; Javed v. State of Haryana, (2003) 8 S.C.C. 369.

See also  Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy, Report no. 228,  August 2009,  available at  http://lawcommissionofindia.nic.in/reports/report228.pdf  (last visited Feb. 18, 2014)

Universal Declaration of Human Rights art. 16 (1), Dec. 10, 1948, U.N.G.A. Res 217 A (III), available at http://www.un.org/en/documents/udhr/ (Last visited Feb. 25, 2014); International Covenant on Civil and Political Rights art. 23 (2), Dec. 16, 1966, 999 U.N.T.S. 171, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx  (last visited Feb. 18, 2014).

[8] UK Human Fertilization and Embryology Act 2008, (c 22), Introductory Objective http://www.legislation.gov.uk/ukpga/2008/22/introduction  (last visited Jan. 25, 2014).

[9] Australia , New South Wales Surrogacy Act 2010,  No 102 , Part I , Preliminary http://www.legislation.nsw.gov.au/xref/inforce/?xref=Type%3Dact%20AND%20Year%3D2010%20AND%20no%3D102&nohits=y  (last visited Jan. 25, 2014).

[10] ART Bill 2013, supra note 7 at §2 (zj).

[11]  ART Bill 2013, supra note 7 at § 2 ( j) .

[12]  ART Bill 2010, supra note 5 at § 2 (cc).

[13] ART Bill 2013, supra note 7at § 52 (8).

[14] ART Bill 2013, supra note 7 at § 26 (18).

[15] Pritha Chatterjee, Egg Donor’s Death: Internal Bleeding, Ovaries Severely Enlarged, Says Report, Indian Express, Feb. 9, 2014, available at http://indianexpress.com/article/cities/delhi/man-asks-medical-council-to-probe-wifes-death-after-egg-donation/99/ (last visited Feb. 18, 2014).

[16]  ART Bill 2013, supra note 7 at § 60 (5).

[17] ART Bill 2010, supra note 5 at § 34 (5).

[18] Richard Kennedy, Risks And Complications Of Assisted Conception, British Fertility Society, Aug. 2005, available at http://www.britishfertilitysociety.org.uk/public/factsheets/conceptionrisks.html (last visited Feb. 18, 2014).

[19] ART Bill 2013, supra note 7 at § 58 (1).

[20] ART Bill 2013, supra note 7 at § 2 (J).

[21] ART Bill 2013, supra note 7 at § 51 (1).

[22] ART Bill 2013, supra note 7 at §  63(2).

[23] ART Bill 2010, supra note 5 at § 37 (3).

[24] ART Bill 2013, supra note 7 at § 71(2).

[25] ART Bill 2013, supra note 7 at § 54.

[26] ART Bill 2013, supra note 7 at § 56(1).

[27] ART Bill 2010, supra note 5 at § 32 (1).

[28] ART Bill 2013, supra note 7 at § 58 (2).

[29] ART Bill 2013, supra note 7 at § 32 (2).

[30] Universal Declaration on Bioethics and Human Rights art.  6, Oct. 19, 2005, available at http://portal.unesco.org/en/ev.php-URL_ID=31058&URL_DO=DO_TOPIC&URL_SECTION=201.html, (last visited Feb. 4, 2014).

[31] ICMR, Ethical Guidelines for Bio Medical Research on Human Participants, Principle II, 2006, available at  http://icmr.nic.in/ethical_guidelines.pdf  (last visited Feb. 18, 2014).

[32]  ART Bill 2013, supra note 7 at § 60 (2).

[33] Michael Cook, Family Of Indian Surrogate Gets Some Compensation For Her Death, Bio Edge, May 26, 2012 ,   http://www.bioedge.org/index.php/bioethics/bioethics_article/10077  (last visited Feb. 18, 2014).

[34] ART Bill 2013, supra note 7 at § 60 (17) (ii).

[35] ART Bill 2013, supra note 7 at § 64 (1).

[36] ART Bill 2010, supra note 5 at § 35.

[37] Pritha Chatterjee, supra note 15.

[38] Tripti Nath, Surrogate Children In India Deprived Of Mother’s Milk, The Hindu , Jul. 16, 2013, available at http://www.thehindu.com/sci-tech/health/diet-and-nutrition/surrogate-children-in-india-deprived-of-mothers-milk/article4917720.ece, (last visited Feb. 5, 2014).  See also, Dr. Sonia Malik, Bond with your baby, The Hindu , Aug. 11, 2012,  available at http://www.thehindu.com/sci-tech/health/medicine-and-research/bond-with-your-baby/article3745730.ece  (last visited Feb. 5, 2014).

[39] Health Topics, Breast Feeding, World Health Organization (WHO)  available at ,http://www.who.int/topics/breastfeeding/en/ (last visited Feb. 5, 2014).

[40] ART Bill 2013, supra note 7 at § 2 (zj). Compare ART Bill 2010, supra note 5 at § 2 (cc).

[41] Ujjwala Nayudu, Surrogacy As Cover For Trading In Babies, Indian Express, Jan. 8, 2013, available at http://archive.indianexpress.com/news/surrogacy-as-cover-for-trading-in-babies/1055849/ (last visited Feb. 17, 2014).

[42] Manan Kumar & Ritika Chopra, India’s Shame Story: Israeli Paedophile Adopts Girl Through Surrogate Mother, DNA, Jun. 8, 2013, available at http://www.dnaindia.com/india/report-indias-shame-story-israeli-paedophile-adopts-girl-through-surrogate-mother-1845195  (last visited Jan. 20, 2014).

Contemporary legal developments & transformations on surrogacy laws in India

Pub. Info. – Contemporary legal developments & transformations on surrogacy laws in India, by Sonali Kusum, Indian Journal of Legal Philosophy , ISSN : 2347- 4963, VOLUME 2, ISSUE 4, DECEMBER 2014,  Pg 48 – 58.

Abstract –

It is close to a decade since the supreme court  legalized surrogacy in India which was followed with  large scale practice of surrogacy in India to the extent of industrial proportion , yet there is no effective statutory law on surrogacy in India. The legislature, the Ministries of Government Departments have made attempts in legalizing the same by attempting formulation of drafts of surrogacy law as ART Bill and subsequent revision. In addition to these Bills, in recent past, there are new regulatory instruments proposed which merit mention as these differ from the earlier proposed drafts or Bills, at the same time  these are seeking to introduce new regulatory measures for introducing control on surrogacy arrangements and also introducing better provisions for reproductive health safeguards for the surrogate mothers. It would not be wrong to say that at present surrogacy laws in India is undergoing through a definite change however the desirability and the functional necessity of the same is a potent issues which is are not much deliberated upon but never the less these may be a step towards enactment of a better and meaningful statutory law on Surrogacy in India soon.

Introduction – Medical & legal Development on surrogacy :

Surrogacy is defined as an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in  which neither of the gametes belong to her or her husband, with the intention to carry it and hand over the child to the person or persons for  whom she is acting as a surrogate as provided under the ART Bill [1]. In simple terms surrogacy means the process of carrying and delivering a child for another person as stated in Black Law dictionary .[2]

India’s first in vitro fertilization (IVF)  surrogate  baby, named  Kanupriya alias Durga was born in Kolkata on October 3, 1978 , this is only three months after the world’s birth of first surrogate child  named Louise Joy Brown born in Great Britain on July 25, 1978.

In India surrogacy is practiced since year 2002 following the new medical tourism policy

directed at earning foreign exchange and revenues through medical tourism[3] by permitting foreign nationals to avail the services of Indian  surrogate mother and commission surrogacy hence surrogacy began to be practiced  in India.

Followed with this, ICMR , Ministry of Health & Family Welfare in the year 2001 initiated the task of formulation of  first draft Guidelines  and ICMR laid down the permissible standards for the conduct of surrogacy in India in the year 2005 titled as National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India for the Clinics to comply and practice for the conduct of surrogacy in India .These ICMR Guidelines became the first regulating instrument on surrogacy in India which laid down standards for the fertility or ART Clinics to practice the assisted conception techniques like surrogate motherhood. The primary significance of the guidelines lies in the fact that it authoritatively provided for commercial and gestational surrogacy in India there by permitting the gestational services of a woman to be availed for gestation and delivery of child in return for monetary payment. As an after math of these Guidelines many fertility clinics mushroomed in the country providing the facility or the option of commercial commissioning surrogacy both to nationals and foreigners by placing advertisements promising children to infertile couple through surrogacy at a compelling prices / lucrative prices for their  profiteering motives.

Supreme Court & High Court on Surrogacy – Case Analysis :

Meanwhile, the supreme court of India in its landmark judgment of Japanese surrogate Baby Yamanda  Manaji case[4]  involving the national of Japan as Intending couple who commissioned surrogacy in Anand , Gujarat in India by availing the gestational service of an Indian surrogate mother for a fixed sum of monetary payment under a surrogacy agreement  to this effect . The surrogate child yamanda manaji was biologically related to the intending father and donor egg and carried and delivered by the surrogate mother.

The supreme court in this landmark case for the first time pronounced the legalization and practice of commercial surrogacy in India stating that there is nothing in Indian law which prevents or acts as an impediment to legalization of commercial surrogacy in India. The court enumerated the definition of surrogacy the types of surrogacy and the form of commercial surrogacy popularly practiced in India. The apex court listed several favorable factors namely easy availability of poor women in India , excellent medical infrastructure among others in India which facilitated commercial surrogacy in India. The Supreme court even acknowledged the fact that commercial surrogacy has reached upto industrial proportions. As per a UN study it is estimated that Commercial surrogacy is a booming business in India with returns more than 400 million dollars annually[5]. Having pronounced the legalization of commercial surrogacy , the  apex court directed towards the enactment of a statutory law on the same as there is an absence of any effective, binding  statutory law on surrogacy in India.

In this case, though the court mentioned about the economic, reproductive health exploitation of surrogate mother, the feminist ethical issues of surrogate motherhood as womb renting and surrogate mother and the rise of illegalities associated with commercial surrogacy in India particularly in the absence of any law but did not address the same.

In addition to these,  the case brought forth the issue of raised significant issues concerning issues concerning the citizenship of surrogate child, the foreign travel permit or issue of passport for the surrogate child and the legal hassles  due to the inter country statutory differences in the surrogacy laws of two nations namely Japan and India. While Japan prohibited commercial surrogacy and defined legal motherhood with the birthing mother  in compliance with the roman legal maxim mater semper certa est “the mother is always certain” [6] enshrined in the Japanese civil code 1896 [7] Where as India despite the absence of any legislation  on surrogacy but under the ICMR Guidelines 2005 commercial surrogacy or monetary payment for hiring gestational services of surrogate mother is permitted and the legal motherhood is vested with the intending mother or the wife of the intending father.

At the outset court did not lay down any safeguards for the better protection of interest of either the surrogate mother or the surrogate child. The court directed the petitioners to approach the child commission on the findings that it is a specialized body related to child rights and hence an appropriate forum for addressing complaints or grievances related to surrogate child , this appear irrational as the commission has only power to issue recommendations which  does not have effective binding powers.

In the successive year 2009, there was another similar case of commercial surrogacy, the Jan Balaz German Surrogate twins case [8] involving the German nationals as intending couples who also availed the services of Indian surrogate mother and paid her for the same. The Gujarat HC court has reiterated the supreme court judgment and upheld the legalization of commercial surrogacy in India and held valid such surrogacy agreement between the two parties as mentioned . This case also brought forth issues related  to  birth certificate for surrogate child and registration of names of both the parties namely the intending father and her wife as the parents of the surrogate child in the birth certificate and not the surrogate mother , along with these the woes of the surrogate motherhood and evils of the commercial transaction of motherhood and its consequential impact on women but the court very curtly expressed that surrogate mother is not their primary concern rather  the child is the main concern  whose legal parenthood could not be legally established .  But despite this , the court did not invoke its parens patria jurisdiction [9] or its special powers to do complete justice in any case[10] the court did not issue any issue any directions on the same considering the vulnerability of a new born child who may be unjustly deprived of parentage m nationality and all basic legal civil rights due to technicalities in law.

Hence even in this case, the court overlooked certain pertinent issues arising from such surrogacy arrangements despite legalizing the same. Thus these cases established the commercial surrogacy but shortcomings and oversight existed.

Considering the court directions, there has been formulation of the a draft Bill named Assisted Reproductive Technologies ( Regulations) , ART Bill 2008[11] formulated by the Indian Council of Medical Research (ICMR , Delhi) under the aegis of Ministry of Health and Family welfare Government of India modeled after ICMR Guidelines 2005[12] providing for the legal regulation of surrogacy in India.  The central feature of this Bill is the legal permit to commercial surrogacy by providing for payment of monetary compensation to the surrogate mother for her gestational services by entering into a surrogacy agreement to this effect[13] and the enforceability of such commercial surrogacy agreement in India[14]. This draft ART Bill since its first ever formulation in year 2008 has been revised twice, once in the year 2010[15]and lately in the year 2013[16]with  necessary modifications.

At present, the ART Bill 2013 has been tabled before cabinet but remains in pendency. The ART Bill 2013 is proposed after several rounds of consultations and deliberations with different Government bodies, Commissions, Ministries[17] , NGOs and the necessary suggested safeguards have been incorporated in the Bill. Despite the formulation and revision of all these legal instruments, it is a long hiatus with no enactment of any statutory law on surrogacy in India.

Evidently there is a legal void on surrogacy in India which represents the laxity in the regulations making India one of the most liberal regime surrogacy with no functional law in practice or effect.  In fact, the absence of any binding law and any monitoring or supervisory body in itself has been one of the most favourable factors making India the hub of surrogacy. India is popularly known across the world as Global capital of surrogacy[18]and the surrogacy capital of the world and Anand in Gujarat in particular in India is known as the cradle of the world[19].

While the law develops through a series of drafting, revision process, there has been emergence of new regulating instruments which are gradually transforming the liberal or permissible regime of Indian surrogacy into a stricter or restrictive regime by imposing necessary control sand curbs in commissioning surrogacy in India. Hence it is significant to observe the legal developments on surrogacy taking place in the recent years and identify the distinguishing features of the same. Accordingly , some of the newly formulated  regulating instruments on surrogacy are discussed here .

Contemporary Legal Instruments on Surrogacy- findings & assessment :

a.Home Ministry Guidelines 2012  :

Since a year three main legal developments have take place. First and foremost the Government of India , Ministry Of Home Affairs , (Foreign Division) , New Delhi , Home Ministry Guidelines regarding conditions for grant of VISA to foreign nationals intending to visit India for commissioning surrogacy of the year 2012[20]  which is mainly directed towards the foreign nationals  ( not applicable on Indian nationals) seeking to avail surrogacy in India. The Guidelines issued instructions to the foreigners seeking to avail surrogacy in India to commission surrogacy only on after obtaining medical VISA and prohibited tourist visa and the use of the latter is haled to be a violation of visa norm liable to legal action or prosecutions. Hence this guidelines for the first time imposed a strict control on surrogacy in India by redefining the accessibility based on marital status. Nevertheless, these Guidelines are criticized as discrimination on the ground of sexual orientation of a person and denying access or means to procreative freedom to establish their own family and have children to such individuals[21].

This is also viewed as impairment or arbitrary interference with the reproductive decision making of an individual by permitting to commission surrogacy to have a child only after the second year of marriage and not any time prior . This appears prima facie arbitrary as it is the sole prerogative or right of the couple to decide the stage at which they may have children, the spacing between the number of children and the means to have children as these form the basic constituent of the reproductive freedom as guaranteed by the International Conference on Population and Development (ICPD), Cairo 1994. [22]

These Ministry Guidelines amounts to arbitrary state interference in the private , family lives of an individual , this is much in contravention of the  “right to privacy” as held by the supreme court of India in the classic case of  Kharak Singh v state of Bihar[23] and in B. K. Parthasarthi v. Government of Andhra Pradesh [24]which upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy” as well as similar other cases on this point [25] and as much violation of the International Convention.

This Guideline may be viewed in the contrast of the progressive surrogacy laws of other nations as California Surrogacy law 2013[26], UK HEFA Act [27] through recent revision of definitions of parenthood in April 2010[28], which permit homosexuals to commission surrogacy in the same footing as heterosexuals treating them as equals. In line of this arguments, there are several cases under the foreign legal jurisdictions which have granted legal recognition homosexuals to commission surrogacy and vested them with legal parentage.  In Elisa B. v. Superior Court[29] California court recognizes a lesbian co-parent as legal parent of the surrogate child  as they bring about its birth and carry out the plan to co-parent a child courts are willing to recognize a lesbian co-parent as a legal parent. Similarly , In the Matter of Jacob,[30]  T.V. v. NY Dep’t of Health[31] ,  Matter of Doe,[32]  The New York Court held that the right of same sex unmarried  intending couple to legal parentage over surrogate child through adoption.

b.Assisted Reproductive Technologies (Regulation) ART Bill 2013 :

The ART Bill 2013[33], though this draft of the Bill only a revision of the previous 2010 draft but with addition of certain novel and progressive provisions in the draft. It is proposed under the 2013 draft that  a women may be permitted to be surrogate only upto a maximum of three times from the earlier limit of five times and egg donor only upto three times as reduced from six times  during her life time  as previously stated in the ART Bill 2010[34]. The Bill lays down list of documents to be furnished by foreign nationals issued from their Embassy for  to legally commission surrogacy in India and due consent to take the surrogate child or children back to their foreign country along with the grant of citizenship , parentage  rights for the surrogate child in the foreign nation.

The ART Bill 2013 also imposes a stringent punishment by increasing the term of punishment for any offense under the Bill related to medical misuse of ART Technology for causing  sex selective birth of surrogate child. The most notable development under this draft has been the establishment of ART Registry which is primarily functioning for granting accreditation , registration to the ART Clinics and ART Banks as well as maintains necessary records , information , data with regard to surrogacy arrangement in India.

c.Indian Society for Third-Party Assisted Reproduction :

The INSTAR[35]  presided by Dr. Bavishi as President and Dr Rita Bakshi Vice President , these are recommendations are formulated by a group of self conscious and motivated doctors, lawyers, experts  whose main purpose is to protect the interest of surrogate mothers. The recommendations for the first time stipulated a fixed sum of compensation around 2.5 lakhs  to be all the surrogate mothers at the state and national level  through out India. Along with this , it  also lays down monetary compensation to be paid to the surrogate mother in case of health eventualities or health  risks arising out of surrogate pregnancy. The INSTAR recommendations are supplementary to the relevant provision[36] of ART Bill which provides for monetary payment to surrogate mother but does not specify the amount of compensation.  However the, practice of these guidelines are entirely voluntary and these guidelines have no legal binding force in them.

It has been observed and reported pursuant to research studies conducted by NGO[37] , women rights groups that the surrogate mothers are not paid the exact sum as promised under the surrogacy contract entered by them rather quite often they are paid half of that amount or a lesser amount than that and they are subject to cheating, fraudulent practices.[38] The right of surrogate mothers to monetary compensation in return for gestational services including reimbursement of cost of surrogate pregnancy and related expenses has been held as an established right by Justice Hedley in UK court[39]. Similar protection is required for the surrogate mothers in India.

 End  Remarks & Suggestions-

Despite , these legal instruments there are still limitations in addressing grave concerns related to surrogacy like the reproductive health safeguards for the  surrogate mothers and issues related to the surrogate child among others. Besides, a host of regulatory instruments with its distinct merits and demerits as discussed above on  surrogacy  in place  have created a state of flux with a series of proposed change whose enforceability remains doubtful. These newly proposed legal instruments ART Bill 2013 have only added to present set of ambiguities. There is need to incorporate the progressive provisions from the foreign jurisdiction as deem necessary in the Bill

Therefore it is suggested that the ART Bill 2013 must be enacted at the earliest to ensure an effective binding statutory law for better conduct of surrogacy in India towards medically, socially and  legal desirable purposes.

[1] The Assisted Reproductive Technologies (Regulation) Bill – 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (Last visited Feb. 15, 2014) [hereinafter ART Bill 2010].   §2  ( aa ) ART Bill 2010

[2] BLACK’S LAW DICTIONARY 1582 (9th ed. 2009).

[3] Scott Carney,   Inside India’s Rent-a-Womb Business,  motherjones , March/April 2010 Issue , available at http://www.motherjones.com/politics/2010/02/surrogacy-tourism-india-nayna-patel (Last visited Feb. 15, 2014)

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

[5] Saket suman,  Born(e) in desperation, The Statesman, 17 Sep 2014 available at http://www.thestatesman.net/news/77650-born-e-in-desperation.html?page=6 (Last visited Feb. 15, 2014)

[6] Wikipedia,  Mater semper certa est, Wikipedia, the free encyclopedia, available at http://en.wikipedia.org/wiki/Mater_semper_certa_est (Last visited Feb. 15, 2014)

[7] Japaneese Civil  Code, (Japanese: 民法 Minpō) ,  Government of Japan, translated by Ministry of Justice, Government of Japan, Act No. 89 of April 27, 1896, available at http://www.moj.go.jp/content/000056024.pdf(Last visited Feb. 15, 2014)

[8] Jan Balaz v. Anand Municipality and Ors., AIR 2010 Guj 21

[9] Wikipedia, the free encyclopedia, Parens patriae, available at http://en.wikipedia.org/wiki/Parens_patriae (Last visited Feb. 15, 2014)

Parens patriae  is latin for “parent of the nation.” It is a legal doctrine in English Common Law which confers inherent power and authority of the state to protect persons who are legally unable toact on their own behalf power to and to act as the parent of any child or individual who is in need of protection

[10] V.N. SHUKLA, CONSTITUTION OF INDIA 131 (M.P.Singh ed., 2008) , “art” 142

(Constitution of India, ed., 2008).

[11] Indian Council of Medical Research. The Assisted Reproductive Technology (Regulation) Bill– 2008(Draft) Ministry of Health and Family Welfare, Government of India, available at http://icmr.nic.in/art/Draft%20ART%20(Regulation)%20Bill%20&%20Rules%20-%202008-1.PDF (Last visited Feb. 15, 2014) [hereinafter Draft Bill 2008].

[12] ICMR National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, 2005, available at http://icmr.nic.in/art/art_clinics.htm (Last visited Feb. 15, 2014).

[13] ART Bill 2010, supra note 2 at §  34 (3)

[14] ART Bill 2010, supra note 2 at §  34 (1)  (2)

[15]  The Assisted Reproductive Technologies (Regulation) Bill – 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (Last visited Feb. 15, 2014) [hereinafter ART Bill 2010].

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

[17] AARTI DHAR , Ministries consulted on Assisted Reproductive Technology Bill , THE HINDU, November 23, 2013, available at  http://www.thehindu.com/sci-tech/health/ministries-consulted-on-assisted-reproductive-technology-bill/article5380425.ece(last visited Feb. 21, 2014)

[18] Kounteya Sinha, Bill Aims To Weed Out Rent-A-Womb Clinics, TNN, Jul. 13, 2012, available at http://timesofindia.indiatimes.com/india/Bill-aims-to-weed-out-rent-a-womb-clinics/articleshow/14858687.cms?referral=PM (last visited Feb. 11, 2014)

[19] Center for social Research Delhi , Surrogate Motherhood- Ethical or Commercial, Page no. 10 , available at  http://www.womenleadership.in/Csr/SurrogacyReport.pdf , csr@vsnl.com  (last visited Feb. 21, 2014)

[20] Government of India , Ministry Of Home Affairs , (Foreign Division) , New Delhi , Home Ministry Guidelines regarding conditions for grant of VISA to foreign nationals intending to visit India for commissioning surrogacy , issued on 9th July 2012, No. 25022/74/2011/F-1, 14th October 2013 , available at http://www.icmr.nic.in/icmrnews/art/MHA%20Notification_%2014%20Oct.,%202013.pdf (last visited April 25 , 2014).

[21]  Vidya Krishnan, India’s draft surrogacy Bill bars homosexuals, live-in couples,livemint,  Aug 07 2013,
available at http://www.livemint.com/Politics/ZsS2zs7KvqHlk4FCguW0EN/Draft-surrogacy-Bill-bars-homosexuals-livein-couples.html?utm_source=copy (last visited April 25 , 2014).

[22] 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 April 25 , 2014).

[23] Kharak Singh v. State of U.P., AIR 1963 SC 1295.

“The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be left alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters” – Mathew, J. as Lord Denning.

[24]  B. K. Parthasarthi v. Government of Andhra Pradesh  AIR 2000 A. P. 156, Javed v. State of Haryana, (2003) 8 SCC 369

[25] Govindv. State of M.P, (1975) 2 SCC 148: 1975 SCC (Cri) 468. R. Rajagopal v. State of T.N, (1994) 6 SCC 632.

[26] Richard Vaughn, California Surrogacy Law To Take Effect Jan. 1, International fertility Law Group, |November 26th, 2012, available at  http://www.iflg.net/california-surrogacy-law-to-take-effect-jan-1/ (Last visited Feb. 18, 2014).

[27] UK HEFA, Human Fertilization and Embryology Act 2008, 2008 CHAPTER 22, available at  http://www.legislation.gov.uk/ukpga/2008/22/contents (Last visited Feb. 18, 2014).

[28] UK HEFA , IVF – the Law , Phase one: On April 6 2009 part 2 of the Act, the revised definitions of parenthood, took effect. On April 6 2009 part 2 of the Act, the revised definitions of parenthood, took effect, available at  http://www.hfea.gov.uk/134.html (Last visited Feb. 18, 2014).

[29]  Elisa B. v. Superior Court (2005) 37 C.4th 108, 33 C.R.3d 46, 117 P.3d 660.

[30] In the Matter of Jacob, 86 NY2d 651 (1995).

[31] T.V. v. NY Dep’t of Health 88 AD3d 290 (2d Dep’t 2011).

[32] Matter of Doe, 7 Misc 3d 352 (NY Cty. Surrogate’s Ct., Feb. 1, 2005).

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

[34] AARTI DHAR Gaps in surrogacy bill , THE HINDU  , October 27, 2013, http://www.thehindu.com/sci-tech/health/ministries-consulted-on-assisted-reproductive-technology-bill/article5380425.ece

[35] INSTAR KEY RECOMMENDATION ,5th October, 2013 Guwahati, available at  http://instarorg.blogspot.in/2013_10_01_archive.html, (last visited March 10, 2014).

[36]   ART Bill 2010, supra note 2 at § 34 (1) (3) ART Bill 2010

[37] Sama–Resource Group for Women and Health, Birthing A Market A Study on Commercial Surrogacy, published by Sama–Resource Group for Women and Health, 2012 , Delhi , available at  http://www.samawomenshealth.org/downloads/Birthing%20A%20Market.pdf  (last visited March 10, 2014).

[38] R. SUJATHA , Chennai-based trust seeks to bring about transparency in surrogacy, the hindu , CHENNAI, January 20, 2013, available at  http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/chennaibased-trust-seeks-to-bring-about-transparency-in-surrogacy/article4325195.ece (last visited March 10, 2014).

[39] TAMARA COHEN,  Childless couples win right to pay a surrogate mother to bear their child, 9 December 2010, daily mail UK, available at  http://www.dailymail.co.uk/news/article-1337005/Childless-couples-win-right-pay-surrogate-mother.html#ixzz3BhFt6woB (last visited March 10, 2014).
 

“Sociological Understanding & Implications of Surrogate Motherhood in Indian Societies”

Pub. Info. – “Sociological Understanding & Implications of Surrogate Motherhood in Indian Societies” by Sonali Kusum in  International Research Journal Arts & Education , Volume 1, Issue 2, ISSN No. 2349 – 1353 , November 2014.

 Sociological Understanding & Implications of Surrogate Motherhood in Indian Societies [1]

“Families have to change in response to broad social influences.”  [2]

Abstract-

The objective of the paper is to build a sociological understanding on surrogacy its analysis  and to identify and assess implications of the same on the existing social institutions of family , marriage and the social concepts of motherhood, parentage , inter personal relationships  and also to visualizing the new  possible transformations  in  the social institutions their structure , functionalism as reconstructed as an impact of surrogacy on the same.

Surrogacy has challenged the traditional concept of family by primarily by taking out the act of procreation one of the basic function of family out of the realm of wedlock and  sphere of family by introducing  a third party or surrogate mother , gamete donors or egg donor as assisted medium or surrogate mother for reproduction bearing child for them thereby surrogacy has fragmented motherhood into three competing women the gestational carrier , the egg donor or the genetic mother and the intending or the social mother based on their functional roles and thereby changes the / challenges the paternity and the  concept of  parentage. Thus surrogacy challenges the most fundamental or primary unit of society family , the institution of marriage , social concept of parentage , relationships.

Surrogacy makes motherhood a commercial service available on rent or  hire for monetary returns as popularly called womb for rent , on this reasoning surrogacy is taken as akin to prostitution and for the same reason many commercial surrogate mothers face  social stigma. Surrogacy as a form of reproductive technology has reshaped the role of gender and reinforce  the stereotyping against women of the breeders or baby makers. Besides, Surrogacy by its very nature presents a form of polarization in society by permitting the use of poor and third world women’s wombs to produce children for economically advantaged European American couples.

Keeping in regard the above issues , the discourses related to surrogacy  falls in the /  surfaces in the realm of sociology of law and family and feminist sociology. Accordingly many sociologists namely have made a study on the impact of surrogacy on society, Barbara Katz Rothman refers to surrogacy as  form of oppression and exploitation by a one group of the group or class under the garb of producing children and construes social relationships , the status of women , gender in society differently. Susan Markens views surrogacy as a social problem challenging or changing the notions of family , marriage ,parentage, means of attainment of parenthood.

Hence , Surrogacy brings about a new area of social legal inquiry  due to the peculiar inherent nexus or the relation between law and social issues ,  changes in one reflects the change in other . while the pattern of family formation , parentage as social institutions  changes or redefined  (by surrogacy ) consequently law must change in order to incorporate and regulate and control such changes. Law in order to operate and function in society  must respect , acknowledge the social institutions and vice versa.

There is a felt need for the adequate socio legal  construction of this new  development . There is a urge to regulate this social development through law but only after considering the social milieu in which the law seeks to operate. Law  needs to cater to /   go hand in hand with the social developments or realities of society. Law must function as a an agency to strengthen the existing social institutions , established concepts and therefore there is a need to strike a harmonious interpretation and understanding between the law and the social developments. Law needs to reconsider sociological understanding of surrogacy and incorporate the social  impacts, changes in social institutions , social concepts brought by surrogacy  through legislative enactment for better regulation and meaningful enactment on surrogacy.

The study involves sociological research methods namely ethnography, and limited field work  along with necessary use of observation , survey and case study research methods aimed at describing the social process of surrogate motherhood after making detailed observation or study of surrogate mothers in the present societal context.

The debate about surrogacy touches upon values and beliefs about the interest of children , marriage , family , women and human reproduction. All members of society may therefore feel some stake in society ‘s response to the practice.” – New York Task Force on Life and  Law , Surrogate Parenting Analysis and Recommendations for Pubic Policy.

Background & History :

Surrogacy has existed from time immemorial as documented in the Bible with mentioning Genesis, Chapters 16[3] and 30 [4]namely the tale of Abraham & Sarai and the tale of Rachel & Jacob respectively. It is stated that the first traditional surrogate arrangement initiated resulting in the birth of the first surrogate child Ismail in the year 910 B.C.  in this world as per the religious text.[5] In the Babylonian society surrogate motherhood is mentioned as a legitimate form of family formation for reasons associated with family, kinships, ancestral bloodline with authoritative references in the Hammurabi’s Code, Nuzi Tablets which legally permit surrogacy due to bareness of wife for continuation of family through servant or slave thus allowing traditional surrogacy.[6]Thus, in the historical context surrogacy was practiced then was traditional and altruistic undertaken out of compassion in order to help the infertile couples to bear children for them.

Surrogacy – Medical Legal Development:

India made its foray in gestational surrogacy following the medical advanced in reproductive technology with the birth of first surrogate child in India named Kanupriya in October 1978[7] which is only three months after the birth of first surrogate child in the world Louis Brown in UK  in July 1978[8]. Following the medical development, the first regulating instrument on surrogacy were issued by Indian Council of Medical Research (ICMR) in the year 2005 [9] which laid down the permissible standards for the conduct of surrogacy and provided for commercial and gestational surrogacy in India there by permitting the reproductive labour or gestational services of a woman to be availed for gestation and delivery of child in return for monetary payment. In the year 2008 the supreme court of India in its landmark judgment of Japanese surrogate BabyYamanda Manaji case[10] legalized commercial and gestational surrogacy and directed for the enactment of a legislation on the same leading to formulation of The Assisted Reproductive Technologies ART Bill 2008 [11] had been formulated which has been revised in the year 2010[12] reiterating the same. As per the Bill, Surrogate motherhood is defined as merely gestating or carrying the foetus within the womb who is not biologically related to the child and after birth delivers the child to the intending couple in return for monetary payment under a financial surrogacy contract. However these bills are in pendency awaiting enforcement while India permits and promotes commercial surrogacy in the absence of any effective statutory law. India is popularly known across the world as Global capital of surrogacy and the surrogacy capital of the world[13] Thus even in the present context, Surrogacy retains the cardinal function of means to family formation and have biologically related children and particularly for infertile, same sex group for who it may be sole means to family formation. Hence surrogacy has transformed the most fundamental or the primary unit of society the family by replacing the natural traditional family formation with medical technological arrangement involving third part as surrogate mothers or donors. Besides this profound change, surrogacy has brought forth dynamic changes in society . Some of these are identified and briefly discussed here. Surrogacy offers a new technological innovative form of family formation in which biological or genetic connection between the couple ort potential parent and the child is redundant or not necessary and similarly bearing of child  within the wedlock is not always necessary as children could be born by a third party falling outside the union of marriage. A biological tie, marital unison is no longer a defining factor either in the foundation of family, marriage as prime social institution. Accordingly, surrogacy has brought significant changes in the social institution of family, marriage and social construction of motherhood. Some of the significant changes are discussed below.

Surrogacy on family  structure &  composition :

“Surrogacy by opening up the ‘family’ to single women and queer couples has changed the constitution of family”[14] surrogacy has changed the established heterosexual-parented  family as single parent or  homosexual family. For instance, Superstar pianist Sir Elton John and his gay partner David Furnish commissioned surrogacy to have their two surrogate sons , in the year 2013[15].

Surrogacy changes traditional function of Family , Marriage  & Mother child Relationship :

Marriage and Parenthood are God-ordained relationships. Surrogacy introduces a third party interference with a natural process thereby violation of God’s will.  Many religious groups deem surrogacy as “mechanical adultery” for such inclusion.   Surrogacy is an inherently unnatural process[16]. As surrogate children may be borne with or without necessary genetic connection with the parents or the husband and wife hence surrogate children may be related  or may be partially related with either of the couple or may not be related to both. Surrogacy challenges the social construction of family and motherhood. “If a woman is willing to gestate a child in order to give it away to others this itself is un natural of motherhood”![17] Further commercial Surrogacy disrupts the parent child relation and enables buying and selling of parental rights under surrogacy contract for monetary payment. Surrogacy differentiates between bearing and rearing children as a role of mother. Surrogacy causes shunning of all physical and emotional psychological relationship between women and her foetus[18].

Surrogacy reinforces the Gender Stereo type :

As per a leading feminist Debra Satz in her work why something’s should not be for sale states that commercial surrogacy reinforces negative gender stereotype by viewing women as “‘baby machines”. The landmark American case of Johnson vs Calvert represents this societal perception of women as ” class of “breeder.[19]” It signifies the notion that women are naturally fit for mothering, producing children used as mere wombs whose services may be hired for a defined period for a fixed sum of money.

Surrogacy imposes Patriarchy :

Surrogacy represents a patriarchy in society as it seeks to promote the patriarchal line of ancestral lineage , inheritance and authority derived from the genetic or biological connection with the intending father. Gena Corea, in her work “The Mother Machine” opines that “surrogacy is part of a patriarchal conspiracy to control women’s bodies and reproduction.”[20]

Dehumanizing and Commercializing motherhood :

Surrogacy exploits a women’s bodies or reproductive labour as commodity or as any other labour offered for sale or hire in the market. “Such treatment of a woman’s reproductive capabilities as an inanimate object available for payment of a fee is reflective of the dehumanizing treatment to woman and dehumanizing of the sacred role of women as an ‘incubator available for payment of a fee”[21]. The case of ‘Baby M’ of New Jersey could be cited as an example where ‘Surrogate mothers are degraded to baby-making machines which requires that the surrogate mother deny all her feelings’ of motherhood and makes her no more ‘than a contract labourer with neither any emotion or any legal rights over the child.[22]

Surrogacy causes polarization class divide  in society :

Commercial surrogacy reflects the notion of the race and class , inequality , power dynamics in terms of social economic positioning or status of parties involved in commercial surrogacy arrangements. At international level it appears that the south Asian women or women of color are easy to commodify  [23], as they have a commonly shared social context of economic deprivation, illiteracy therefore they agree to act as gestational carrier and deliver babies for rich westerners, In the historical context, the African-American women or the slave women called as “Black Gestators served as surrogate mothers and wet nurse for the white master’s children[24]. At present in India poor Indian women agree to commercial surrogates for rich foreign intending couples visiting India .

Surrogacy implicates social stigma & Prostitution :

commercial surrogacy entails stigma on surrogate mothers ,she is equated with a  prostitute as she is making money by making use of her private body organ[25].  Surrogate mothers are cast upon a stigma and denied social acceptance[26].  Surrogacy is a form of slavery or prostitution in which the surrogate is exploited through the enticements of money[27]. Surrogacy, like prostitution, is payment of a fee for the use of the body [28]. Dworkin argues that surrogacy, like prostitution, allows society to equate women with sex and nothing more.[29]

Negative Psychological consequences  Identity crisis & Incest on Surrogate child :

Surrogate children  may face emotional or psychological difficulties and take to rejection of a life  after learning about the birthing process, may be confused about his/ her biological identity . Surrogacy might also lead to incest of a sort. As the surrogate child might marry another offspring of the surrogate mother.

End Remarks-

Families have changed and the law should also change and theirs is need to modernizing regulations, to accommodate the social reality to provide sufficient safeguard for the child and the family. [30]

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

[2] D de Vaus, Diversity and Change in Australian Families: Statistical Profiles, Melbourne, Australian Institute of Family Studies, 2004

[3] Holy Bible, New International Version, Genesis 16,  New International Version (NIV) Hagar and Ishmael

available at https://www.biblegateway.com/passage/?search=Genesis%2016 (Last visited Feb. 15, 2014)

[4] Holy Bible, New International Version, Genesis 30:2 | Genesis 30:4 , New International Version (NIV) Hagar and Ishmael, available at https://www.biblegateway.com/passage/?search=Genesis%2016  (Last visited Feb. 15, 2014)

[5] K.N. Svitnev, Surrogate Motherhood: Legal and Ethical Aspects, Rosjurconsulting Family Law Firm,  available at http://www.jurconsult.ru/en/media/radio/radio_rossii_surrogate_motherhood/  (Last visited Feb. 15, 2014)

[6] Scott B. Rae, Moral Choices: An Introduction to Ethics, Zondervan Publications , 2000.

[7] Stanford Edu group, Surrogate Motherhood in India, Stanford University  available at http://web.stanford.edu/group/womenscourage/Surrogacy/  (Last visited Feb. 15, 2014)

[8] Judith Woods, IVF: The birth that started a revolution, the Telegraph,  Jul 2008,  available at http://www.telegraph.co.uk/women/womens-health/3355633/IVF-The-birth-that-started-a-revolution.html

[9] ICMR National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, 2005, available at http://icmr.nic.in/art/art_clinics.htm (Last visited Feb. 15, 2014).

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

[11] Indian Council of Medical Research. The Assisted Reproductive Technology (Regulation) Bill– 2008(Draft) Ministry of Health and Family Welfare, Government of India, available at http://icmr.nic.in/art/Draft%20ART%20(Regulation)%20Bill%20&%20Rules%20-%202008-1.PDF (Last visited Feb. 15, 2014)

[12] The Assisted Reproductive Technologies (Regulation) Bill – 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (Last visited Feb. 15, 2014)

[13] Kounteya Sinha, Bill Aims To Weed Out Rent-A-Womb Clinics, TNN, Jul. 13, 2012, available at http://timesofindia.indiatimes.com/india/Bill-aims-to-weed-out-rent-a-womb- clinics/articleshow/14858687.cms?referral=PM (last visited Feb. 11, 2014)

[14] Sama–Resource Group for Women and Health, Birthing A Market A Study on Commercial Surrogacy, published by Sama–Resource Group for Women and Health, 2012 , Delhi , available at  http://www.samawomenshealth.org/downloads/Birthing%20A%20Market.pdf  (last visited March 10, 2014).

[15] DAILY MAIL REPORTER, Last of the big spenders! Elton John ‘paid £20,000’ to surrogate mother for giving birth to second son Elijah,  dailymail.co.uk , 20 January 2013, http://www.dailymail.co.uk/tvshowbiz/article-2265463/Elton-John-paid-20-000-surrogate-mother-giving-birth-second-son-Elijah.html

[16] Edtd. By Sayantani DasGupta, Shamita Das Dasgupta, Globalization and Transnational Surrogacy in India: Outsourcing Life, Lexington Books, 2014

[17]Linda Kirkman, The good sense about surrogacy , http://www.academia.edu/229199/The_good_sense_about_surrogacy

[18] Zillah R. Eisenstein, The Female Body and the Law, University of California Press. 1988

[19] Johnson vs Calvert (Cal. Super. Ct. Oct. 22, 1990)

[20] Gena Corea , The Mother Machine: Reproductive Technologies from Artificial Insemination to Artificial Wombs , Harper collins 1st edition April 1, 1985

[21] Debra Satz’s “Why Some Things Should Not Be for Sale: The Moral Limits of Markets”, Oxford University Press, 2010.

[22] Baby M, 225 N.J. Super 267 (N.J.Super.Ch. 1988).

[23] Anita L. Allen, The Socio-Economic Struggle for Equality THE BLACK SURROGATE MOTHER, 8 Harvard Black Letter Journal Spring, J. 17, 1991.

[24] Supra Note 19

[25] JEAN M. SERA, SURROGACYAND PROSTITUTION: A COMPARATIVE ANALYSIS, JOURNAL OF GENDER & THE LAW Vol. 5:315 Spring 1997 ,http://www.wcl.american.edu/journal/genderlaw/05/sera.pdf

[26] S Golombok, F MacCallum, C Murray, E Lycett & V Jadva,‘Surrogacy families: parental functioning, parent-child relationships and children’s psychological development at age 2.’ Journal of Child Psychology and Psychiatry 2006, vol. 47, no. 2, pp. 213-22

[27] Lieber, Katherine B. (1992) “Selling the Womb: Can the Feminist Critique of Surrogacy Be Answered?,” Indiana Law Journal: Vol. 68: Iss. 1, Article 7, available at: http://www.repository.law.indiana.edu/ilj/vol68/iss1/7

[28] Kathryn Venturatos Lorio, Alternative Means of Reproduction: Tingin Terdtoryfor Legislation, 44 LA. L. REV. 1641, 1657 n.85 (1984).

[29] ANDREA DWORKIN , Right-wing Women , A Perigee Book , G. P. Putnam’s Sons, New York, 1982.

[30] Alexandra Bosanac, Winnipeg couple became parents through surrogacy — but not in the eyes of Canadian law, Canada nationalpost., May 10, 2013 | http://news.nationalpost.com/2013/05/10/through-surrogacy-winnipeg-couple-became-parents-but-not-in-the-eyes-of-canadian-law/

Surrogate Child Concerns & Role of Child Commission in India

Pub. Info. – Surrogate Child Concerns & Role of Child Commission in India, Sonali Kusum Consentia on Multidisciplinary Research, Researchers club  in Association with Peace Child India, JULY 2014   ISSN No. 2347 – 9922.

The National & State Commission for Protection of Child Rights[1] is constituted at National and State level under the NCPCR Act 2005[2] in order to give effect to India’s commitment to paramount consideration to child welfare in compliance with United Nations Child Rights Conventions (UNCRC) [3]mandates after India signed and ratified UN Child Right Convention (UNCRC) in year 1992[4].

The role of NCPCR is crucial in case of protecting the rights of surrogate child was exemplified in the landmark case of Japanese surrogate baby Manaji Japanese surrogate baby Manaji[5] year 2008, where the Supreme court of India  held that commission which is the specialized authority to deal with various aspects and concerns of child rights accordingly the case of surrogate child, further the court reiterates the necessary functions of the commission as stated under the NCPCR Act[6] as right to inquire into complaints, to take suo motu notice of matters relating to deprivation and violation of child rights,  to ensure welfare of the children and to provide relief to such children and to make recommendations for promoting or to implementing the best interest of children.

Surrogacy cases  &  child commission :

In the case of Baby Manji  , for the first time the National child commission not only assumed significance but the commission was also recognized as the  appropriate forum being the specialized body to deal with child related issues and for adjudication of any rights concerning child. Accordingly ,  The court stated the powers and functions of the commission and finding upon these reasons, the apex court directed the petitioner to the Commission and seek action there from. This case particularly dealt with citizenship right or the basic civil political right of surrogate child and sought for issue of passport for the child among other issues. However the Commission has not issued any recommendations concerning surrogate child.

Subsequent to this case, in year 2011, Delhi Child Commission took up the case of surrogate twins born in India to a gay couple from Spain[7],  wherein the commission  raised certain key issues pertaining to rights and status of children born as a result of international surrogacy arrangements in India, the DCPCR has drawn an analogy between the international surrogacy and inter country adoption and considered the former to be a form of inter country adoption under the garb of surrogacy and brought forth the issue of  assessing necessary compliance  with procedures and  condition laid down by CARA[8] for the inter country adoption in light of clear laws or regulations for the surrogate child in this regard. The DCPCR  mentioned about the possibilities of invoking the necessary and applicable provisions of CARA and Juvenile Justice Act and sought more consideration on this regard.  It may be noted that, CARA has subsequently stated that the Surrogate children do not fall under its jurisdiction , following the averment of the CARA the issue raised by DCPCR on surrogate child  constitutes a grave concern, However the DCPCR has not issued any Guidelines or recommendation or  any measures to resolve!

In the recent past June 2013, the NCPCR was faced with a shocking case where an Israeli paedophile languishing in jail had availed of surrogacy in India to have children[9],though the NCPCR expressed concern on the same but no recommendations were issued yet again!

There has been another shaming case of baby selling or trafficking of child under the garb of surrogacy by doctor named Dr Bharat Atit running an fertility clinic in Gujarat, the doctor sold two  children for eight lakhs  posing as surrogate children belonging to two different intending couples respectively in Porabander , Gujarat in the year 2009.[10] The doctor was charged with criminal case of human trafficking or illegally selling of babies, fraud, forgery and conspiracy accordingly the criminal charges under Section 373, 374, 418, 201 and even 120(B) of the Indian Penal Code have been leveled against him. The doctor has been nabbed by the crime branch of police in Ahmadabad.[11]  But there has been no action taken against the same by the Commission. It may be appropriate to mention that trafficking of human beings in is a punishable offense in India under the existing national law[12] and international human right convention[13].

Identification of legally vexing issues concerning surrogate child :

It may be  mentioned here that due to the special circumstances facing the surrogate children following the absence of a functional law in India  as well as in other nations defining the rights of surrogate child coupled with the inconsistent surrogacy laws or  lack of uniformity in  surrogacy laws in different countries across the world wherein one country prohibits surrogacy and the other country permits surrogacy , under such legal dilemma , the surrogate child ‘s legal identity, status and basic rights remain questionable . Nations permitting surrogacy may grant legal recognition and legal rights to the child where as nations prohibiting surrogacy deny such rights and recognition. The surrogate child is caught in midst of these legal inconsistencies and becomes subject of long drawn court custody suits seeking for the ascertainment of their parentage, registration of birth,  basic civil rights like right to nationality, citizenship, right to travel documents among others. In absence of  these the  surrogate children may be declared stateless and parentless which in itself is the worst form of violation of child rights .

Similarly from the above cases it appears that the there are several issues weighing against the welfare of surrogate child under  surrogacy arrangement namely as the determination of parentage under inconsistent  surrogacy country laws  custody , issues related to custody of surrogate child , legal parentage of surrogate child , right to travel abroad,  right to basic civil political rights , trafficking or baby selling under the garb of commercial surrogacy as mentioned above.

Right of Surrogate child to Parentage & Citizenship and other civil political guarantees

The first case of the Japanese surrogate child[14] brought forth  the issue of guarantee of  basic political civil rights of surrogate child  and the determination of legal parentage for the surrogate child in case of inconsistent inert country Laws on surrogacy , determination of this issue is significant as this may result  in the worst instances of leaving the surrogate child stateless and parentless and the  legal identity of surrogate child  to be embroiled in the legal disputes for long drawn court proceedings !

Right of surrogate child to inter country movement, right to  safe  transit , exist and arrival in other nation

The second case of a Spanish Gay couple [15] , questioned the   right of child to inter country movement and right to safe transit , exist and arrival in other nation,  in absence of any functional law on surrogacy in India providing for any applicable law of regulations on the same and it also questioned the legality of such inter country movement of surrogate children  as a part of surrogacy arrangement  as there is ambiguity  surrounding  the nature of application of  existing law namely the adoption laws or JJ laws in the absence of  a legislation on surrogacy .

Right of surrogate child to safe, beneficial  legal custody, guardianship  determination

In the third case of Israeli pedophile[16],  raises the issue of  vesting of legal custody and parentage or guardianship of the surrogate child  and  related the issue of assessment or eligibility  of fitness to be legal parent  and necessary screening  by an government appointed body before commissioning surrogacy to have a child in India . The omission of the same has resulted in the worst or the gross violation of child right resulting in placing the custody of a surrogate child with a pedophile who not only attained the legal parenthood but also took the surrogate child born in India out of country with no legal action against him.

Right of surrogate child to be free from trafficking

The fourth case of baby selling in the guise of surrogacy [17] evinces the emerging form of trafficking or baby selling under the garb of commercial surrogacy  and it also  indicates the limitation in the ART Bill 2010, which does not mention offense of child trafficking under the garb guise of  commercial surrogacy .

These cases highlight the extreme vulnerabilities where in the basic right of surrogate child become a subject of contestation  namely child’s Right to Name, Right to Nationality, Right to Family, Right to Parentage which are the core constituent of the child right to identity , life and survival enshrined the UN CRC [18]and thereby flowing into the child commission Act.

In sum and substance ,  it may be appropriately stated that such  denial or violation basic individual rights and civil political rights of child (as mentioned in the cases above )  and other incidental rights of surrogate child constitutes discrimination on the basis of birth which in itself  is  a grave violation of right to  non discrimination and equal treatment  guaranteed by  UNCRC[19] the and  also a violation  of the cardinal objective of  the statute on National, State child commission laws of India, the child commission Act [20] where the he prime objective of the child commission Act is to give effect to the rights enshrined in UNCRC.

It is pertinent to state that the Right of a child to parentage[21] , right to nationality [22] , right to inter country movement[23] , right to responsible  custody guardian in the best interest of child[24] are guaranteed to every child under UN CRC  and correspondingly there is a legal obligation on the state ratifying the same to secure these rights to child . India as a part of treaty obligation and thereafter after under its national statutory obligation under child commission act has failed to safeguarded these rights of the surrogate child.

Legal obligations of  Child Commission :

National child commission ,  State child commission are statutory bodies created under the Statute Act 2005 and has been given broad powers , duties which  are well has been expressly stated to include broad range of issues concerning power to undertake suo moto cognizance of cases concerning child rights, to examine review the existing safeguards  and the factors inhibiting exercise of child rights , to look into the cases of child facing special distress or situations resulting from any particular deprivations or denials[25].

Commission has power to issue not only recommendations but also to suggest remedial measures in case of violation of child rights and thus to cause effective implementation of child rights. The commission has also been given an obligation as a part of international commitment to study International treaties , Conventions and to issue recommendations for its implementation. Following these mandates, it is evident that the Child Commission have a cardinal  duty to promote and protect the best interest of  child in all, thus there is onus to  safeguarding the basic civil legal right of child  which are crucial for the survival , life of child. Commission cannot over look its mandate and it’s commitment to UNRC to which Government of India has not only accepted , signed but also ratified and thereby enacted the statute and constituted these national and State Commissions for effective compliance with UNCRC.

To the contrary,  it appears from the readings of the case that child commission  has failed in  upholding its mandate both under  Child Commission Act and UNCRC. The Child Commission has so far not made use of its powers and function, the commission has not issued any recommendations  despite its mandate under the NCPCR Act derived from  the UNCRC, further, it may be noted that the Commission has not initiated any research study or consultation on the same till date despite its conferred powers on the same. Besides, the NCPCR in response to the RTI filed by the author [26]has categorically stated that the Commission has nil information on Surrogate child and it has neither issued any recommendations nor conducted any study on the same as on March 2013.

Considering the novelty and particular nature of the case of surrogate child , particularly the  case of transnational or inter country  surrogacy arrangement, the safe inter country movement of child , the nature of regulations and other incidental issues concerning the surrogate child , the commission ought to appoint a expert group or committee to conducted any research study on the same for the purpose of issuing guidelines.

The commission ought to undertake a critical study of the ART Bill and assess the adequacy or appropriateness of the provisions  of law in protecting the child welfare, there is a specific provision under the NCPCR Act for the same which imposes a legal obligation on them to undertake study of international , national laws convention and recommend beneficial measures to protect the interest of  surrogate child. It also observed that the draft Assisted Reproductive  ( Regulations) Technologies (ART Bill)  2010[27] has certain shortcomings or serious inadequacies in the surrogacy  law which has failed to protect the interest of surrogate child. Some of the potent gaps that surfaced in the Bill includes the issues of parentage determination , citizenship ,  absence of a government appointed screening body for the intending couples, omission to mention the offence of trafficking among others .  The commission ought to  undertake a study on the  provision of the Bill and identify such gaps in the law and suggest necessary changes in the  provisions of the Bill .

End Remarks-

The child commission as  a specialized child state functionary has statutory obligation and an onerous legal liability to particularly when the India has not only legalized after the judicial pronouncement by the apex court  but identified  the child commission as the  specialized forum for redressal of rights of surrogate child in one of the landmark judgment. ,  but it  the child commission has so far not made use of its powers and function, despite its mandate under the NCPCR Act derived from  the UNCRC . The commission due to its non action in laying down any recommendation or invoking necessary power  has failed in ensuring compliance with its mandate under the Child commission statute and under the treaty obligation of UNCRC.

Lately the Planning Commission of India had organized consultation by seeking recommendations  from the various government functionaries including the national  child commission  in order to revise the draft  Assisted Reproductive Technologies (ART) Bill, 2010 for suggesting necessary regulatory measures in the Bill. Accordingly a draft ART Bill 2013 is   also proposed on the similar lines.  Thus it remains interesting to observe how the child commission would make use of power and function to recommend better measures for child welfare  under the Bill and better protect the interest of surrogate child.

Though the commission has come forward in many cases to support the cause of surrogate child but it has always been an ad hoc and tentative in nature, there has been no concrete recommendations issued so far which may be followed in similar case in future .

The effective use of it’s mandate and formulation of necessary recommendation is a much needed step towards the protection of surrogate child rights.

[1] THE COMMISSIONS FOR PROTECTION OF CHILD RIGHTS Act 2005 ,  § 3

[2] Government of India , Ministry of Law & Justice , (Legislative Department) THE COMMISSIONS FOR PROTECTION OF CHILDRIGH Act,   Act No. 4 of 2006, (20th January,2006,) available at http://wcd.nic.in/The%20Gazette%20of%20India.pdf  (last visited May 7 , 2014 ) [hereinafter CPCR Act 2005].

[3]  UN Convention on the Rights of the Child 1989,  UN General Assembly resolution 44/25 of 20 November 1989 , U.N. Doc. A/44/49 (1989)  (2 September 1990) available at  http://www.ohchr.org/en/professionalinterest/pages/crc.aspx  (last visited May 7 , 2014 )

[4] India ratified United Nation’s Child Rights Convention on 11 Dec 1992 a . United Nations, Convention on the Rights of the Child  1989 , UN  Treaty Series ,  depositary notificationsC.N.147.1993.TREATIES-5 of 15 May 1993 [amendments to article 43 (2)]1; andC.N.322.1995.TREATIES-7 of 7 November 1995,  STATUS AS AT : 05-06-2014 05:03:04 EDT available at   https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en(last visited April 17 , 2014 ) .

[5]Baby Manji Yamada vs Union Of India, (2008) 13 S.C.C. 518.

[6]  CPCR Act 2005, supra note 4 at  § 13 (1)

[7] HT Correspondent, Questions raised over gay couple’s surrogate twins , Hindustan Times  New Delhi, February 17, 2011, available at   http://www.hindustantimes.com/India-news/NewDelhi/Questions-raised-over-gay-couple-s-surrogate-twins/Article1-663687.aspx   (last visited April 17 , 2014 ) .

[8]  Ministry of Women & Child Development, Government of India. Central Adoption Resource Authority (CARA) )    available at  http://www.adoptionindia.nic.in/( last Visited May 7 , 2014)

[9]  BINDU SHAJAN PERAPPADAN, NCPCR raises alarm over Israeli paedophile adopting Indian girl  , June 2013, available at   http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/ncpcr-raises-alarm-over-israeli-paedophile-adopting-indian-girl/article4796475.ece (last visited April 29 , 2014 )

[10] Press Trust of India ,Ahmedabad doctor accused of selling babies , ND TV ,  January 31, 2013, available at http://www.ndtv.com/article/cities/ahmedabad-doctor-accused-of-selling-babies-324934  (last visited May 12 , 2014)

[11] Express News Service, Ahmedabad,  City doc wanted for selling babies questioned, held, Feb 20 2013 ,  available at  http://archive.indianexpress.com/news/city-doc-wanted-for-selling-babies-questioned-held/1076799/0  (last visited May 12 , 2014)

[12]  Constitution of India, 1950, art . 23

[13] India has ratified the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography on  9 Jul 2001 ,

United Nations, Treaty Seriesvol. 2171, p. 227; Doc. A/RES/54/263; C.N.1032.2000.TREATIES-72 of 14 November 2000 [rectification of the  the original of the Protocol (Arabic, Chinese, English, French, Russian and Spanish authentic texts)] available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11-c&chapter=4&lang=en (last visited April 29 , 2014)

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography , United Nations, Treaty Seriesvol. 2171, p. 227; Doc. A/RES/54/263; C.N.1032.2000.TREATIES-72 of 14 November 2000, UN General Assembly resolution A/RES/54/263 of 25 May 2000
entered into force on 18 January 2002, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPSCCRC.aspx (last visited May 12 , 2014)

[14] Supra note at 6

[15] Supra note at 8

[16] Supra note at 10

[17] Supra note at 11, 12

[18] UN CRC 1989 supra note at4  art.  7,  8

[19]   UN CRC 1989 supra note at 4 art. 2 (1)

[20] NCPCR 2005, supra note at  3,  objective

[21] UN CRC 1989 supra note at 15  art. 7

[22] UN CRC 1989 supra note at 15  art. 7, 8

[23] UN CRC 1989 supra note at 15  art. 10 (2)

[24] UN CRC 1989 supra note at 15  art. 18 (1) ( 2)

[25] NCPCR 2005, supra note at  3,  § 13 (1)

[26]. Sonali Kusum, No Record of Surrogate Mother and Child at Regional and National Levels, MAINSTREAM, VOL LII, NO 15, APRIL 5, 2014, available at H ttp://www.mainstreamweekly.net/article4838.html (last visited May 12 , 2014)

[27] The Assisted Reproductive Technologies (Regulation) Bill – 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (Last visited Feb. 15, 2014) [

No Record of Surrogate Mother and Child at Regional and National

Pub. Info. – Mainstream Weekly , Sonali Kusum, No Record of Surrogate Mother and Child at Regional and National , Mainstream, Vol LII, No 15, April 5, 2014, http://www.mainstreamweekly.net/article4838.html

Surrogacy is a $ US 2.8 billion trade across the world and India’s commercial surrogacy is a $ 2.5 billion industry in the country. This is as per the estimate of the Confederation of Indian Industry.

It is an admitted and well-known fact that in India surrogacy is legal in the commercial form with the Supreme Court judgment since the year 2002 in the absence of an effective binding law. The proposed law regulating surrogacy in India—the Assisted Reproductive Technologies (ART) Draft Bill 2010— is awaiting its long due enforcement.

Further, the absence of an effective binding law on surrogacy in India makes the situation grim  as during the pendency of the Bill there is no mechanism or no official government- appointed body  responsible for maintaining records on the issue.

The draft law on surrogacy in India, the ART Bill 2010, provides for maintaining records under its relevant provisions. There is a duty imposed on the ART clinics to maintain accurate records on the manner, technique and use of ART technologies, the individual or intending couple or surrogate mother, in respect of whom it was used.1.  The ART Bill provides for maintaining and preserving records, and the setting up of the National ART Registry.2

Further, the ART Bill also provides for setting up of a National Advisory Board for Assisted Reproductive Technology established by the Central Government and State Advisory Board for Assisted Reproductive Technology by the State Government for regulating the conduct of ART procedures or treatment, including surrogacy by fertility or ART clinics, and for ensuring necessary compliance with the law.3

In addition to these, the Bill provides for the constitution of a State level ART Registration Authority 4 for  granting  registration to the ART Clinics for their functioning 5 and to exercise supervision over the ART clinics and to check any malpractice by such clinics. As the Bill awaits its enforcement, these provisions remain non-functional.

But despite these laudable provisions, there is no clear measure on the data or facts or figures on the surrogate children born till date at the State level and other related information.

  Attempts have been made to understand the size and scheme of the large-scale operation of surrogacy as a burgeoning IVF Industry, and a brief empirical study has been conducted on the  plight of surrogate mothers in South India.

A sample of surrogate mothers based in Bangalore had been studied through the interview schedule but as the issue of surrogacy is heavily guarded by privacy concerns, in order to know the correct proportion of  this thriving business of surrogacy, RTIs had been filed at the regional level in Karnataka as well as at the apex national level for securing accurate and exact  information on surrogate mothers and surrogate children and other incidental issues concerning surrogacy in India.

There is absolutely no information on the number of surrogate children born in Karnataka annually or the total number of surrogate children born in Karnataka till date. There is no information on the Infant Mortality Rate (IMR), sex ratio of the surrogate children born in Karnataka; and there is also no information on the total number of birth certificates issued to the surrogate children in that State. Besides, there is no concerned official government authority at the State level  collecting and maintaining records on the same.

Regarding the RTI filed with the Office of the Project Director (RCH), the Directorate of Health and Family Welfare Services, Government of Karnataka replied: “No separate report of surrogate children is maintained in any of the hospitals of Karnataka, hence report of total number of surrogate child born in Karnataka  and report of Infant Mortality Rate (IMR) of surrogate child born in Karnataka  is not  available.”

On the RTI filed with the Joint Director, Statistics, Birth and Death, the BBMP head office, Bangalore replied that there was no information on the Infant Mortality Rate (IMR), sex ratio and total number of surrogate children born in Karnataka.

Besides, on the RTIs filed with the Karnataka State Commissions, namely, the Human Rights Commission, Child Rights Commission, Women’s Commission, these Commission denied having any information on the same by summarily dispensing with the queries and stating that no information was available on the mentioned subject  (surrogacy or surrogate mother or surrogate child) and  thus replied that all the queries should be treated as negative.

The Karnataka State Human Rights Commi-ssion  replied that “neither complaint or case relating to surrogacy or surrogate mother or surrogate child has been received and nor suomoto action has been taken up. As such no information is available and  thus replies to all the queries may be treated as negative.”

The Karnataka State Commission for Protection of Child Rights replied  that “no complaints related to surrogate child has been registered in the Commission and not much work has been done in the Commission on this topic”.

Thus there is no State-level official statistical record on the status of surrogate children born in India annually or in each state per annum.

Bangalore had  its first surrogate child when a baby boy was born in the year 2011 to a US single parent: the boy was given birth by a surrogate mother  who works in a garment factory based in Karnataka as per the official records.8 Since then Bangalore is buzzing with ART clinics functioning  in the city catering to not only national but international clients and giving rise to the birth of a large number  surrogate babies in the city.  It may be stated that in recent times surrogacy is a booming business in Bangalore after the IT: it is popularly said that  after the IT boom, it’s the “surrogate baby business boom“ in Bangalore.

Despite all these developments, there is unfortunately no data or facts and figures  on the same.

However, in the recent past, the Indian Society for Assisted Reproduction  has taken the initiative  of collecting  the data by establi-shing   the National ART Registry of India which has been instrumental in collecting and publishing data related to Assisted Reprod-uction Technology  carried out in India since the year 2001. But there are certain limitations in this. Firstly, this is a voluntary process as the data is submitted by the ART clinics voluntarily to the ISAR. Neither has the ISAR powers to check the authenticity and nor has it powers to enforce all clinics to submit data. Hence the NARI does not cover all the ART clinics as well as does not have all the information concerning surrogacy. Further, the last data  published by the ISAR under the NARI is of the year 2006.

Correspondingly,  RTIs were filed with the National Commission for the Protection of Child Rights (NCPCR), National Commission of Women (NCW), National Human Rights Commission (NHRC) at the national level in order to ascertain necessary facts and figures on surrogate mothers. However, these have also not yielded any result.

Meanwhile the NCW has informed that it “had approved one research study on surrogate mothers in Gujarat by an NGO based in Delhi and also held one Consultation on Surrogacy and ART to discuss the rights of surrogate mothers  in the year 2008 but despite this the NCW has not issued any Guidelines on the same”.

It is also important to note that none of these bodies have taken suo moto cognisance of the matter even when  they have the necessary statutory powers to do so in the light of the rampant legal, health and  ethical issues concer-ning  surrogate mothers and children.

Thus there is a serious lacuna and omission on the part of the government  to maintain the necessary and accurate records as well as facts and figures on the surrogate child, particularly when surrogacy is not only  legalised in India but is rampantly practised and the government earns a whopping amount of revenue from the same. Information and record-keeping must be considered by the government as the immediate recourse.

[The article is written after collecting response to the RTI filed by the author who is doing her Ph.D research on Surrogacy in India at the National Law School of India University, Bangalore. In the course of her research she found dearth of information on the same and has filed a series of RTIs to collect necessary information on the status of surrogate children in Bangalore.]

References

 

  1. Sec 22 of ART Bill 2010.
  2. Section 3, Section 6 of ART Bill 2010.
  3. Section 13 (1) (2) of ART Bill 2010.
  4. Section 13 of ART Bill 2010.
  5. Section 44 of ART Bill 2010.

Sonali Kusum, BA, LLB, LLM, is a Ph.D Research Scholar at the NLSUI, Bangalore. She is a former Assistant Professor, School of Law, Rights and Constitutional Governance, TISS, Mumbai. She can be contacted at: sonali.lipi@gmail.com

 

Rise of Twin Surrogate Motherhood in India : Legal and Heath Issues

Pub. Info. –  Rise of Twin Surrogate Motherhood in India : Legal and Heath Issues, by Sonali Kusum, Issue Date:  March 2014, Posted On: 6/11/2014.

The unregulated commercial surrogacy of India has marked the emergence of a new trend in the Indian liberal surrogacy regime with the practice of Twiblings or twin siblings. Twiblings is deemed as the new feature or the unique selling point (USP) of India •s commercial and liberal surrogacy regime.

The term twiblings takes after the combination of two words twins and siblings , it refers to the process of hiring or availing the services of two surrogate mothers at the same time by the same intending couples for increasing or maximizing the chances of successful birth of more than one surrogate child at one single instance itself.
Indian commercial surrogacy taking much liberties and unfair advantage of the unregulated surrogacy and absence of monitoring bodies have led to developing this practice of twiblings , besides , it must not to be forgotten that the large scale commercialization of surrogacy as an industry , vested interest of clinic and the profit motives of the clinic in order to increase their clients base and to satisfy their personal choices have established twibling as a the new trend of Indian surrogacy.

Presently in India, surrogacy remains outside the purview of any binding legislation or effective regulations and also outside the purview of any monitoring body and law enforcing agency, the law on surrogacy, the Assisted Reproductive Technologies ( Regulation) Bill 2010 drafted by Ministry of Health & Family Welfare, Government of India is lying in pendency and awaiting enforcement, the draft is being revised as the ART Bill 2013 with necessary regulatory measures to protect the interest of stakeholders. Meanwhile surrogacy in India is governed only by the individual surrogacy agreements entered by the parties namely the intending couples and the surrogate mothers . It must be noted that there is no uniform pattern of such surrogacy agreements and these surrogacy agreements are largely customized as per the personal preference of Intending couple catering to the personal interests and needs of the intending couples. The commercialization of surrogacy has caused surrogacy to be channelized as per the market techniques of demand and supply and to suit their client interests much to the disregard of law.
Many foreign intending couples are visiting India to have twiblings in order to have maximize their chances of parentage as well as to have more than one child at a time , many find it much economical and manageable scheme as it saves their repeated travel , cost and time by one go.

Though it is strictly prohibited under the ART Bill ( Section 34 ( 20), (21) ) which strictly prohibits the use of two surrogates at the same time by same intending couples as well as the simultaneous transfer of embryos in the two surrogate mothers at the same time. But the fact that the ART Bill is in pendency and not enforced has resulted in the frequency of this practice to appease the foreign intending couples.

It was recently reported that a British couples visited Mumbai , India in the year 2013, November and hired two surrogate mother simultaneously in order to have 4 surrogate children, this has given rise to the coining of new terminology twiblings or twins siblings , as a new feature of surrogacy in India (Bioedge, 2 Nov 2013 ) in this case 6 embryos were created and three embryos were implanted in two surrogate mothers respectively to increase the success rate of surrogacy and to ensure birth of more than one surrogate child as per the wishes of the intending couples.

Similarly, another case of another twibling in India was reported , a Canadian businesswoman from Toronto visited Anand in Gujarat in year 2012 and engaged two surrogate mothers at the same time in order to have twins both born of the same sample of sperms from her husband which was implanted in the womb of two surrogate mothers at the same time resulting the birth of surrogate twins or twiblings (localuknews.UK, October 28, 2013)

It has been found that Twiblings is associated with the practice of multiple embryo transfers or multiple pregnancies among surrogate mothers which are highly dangerous to the health of surrogate mothers. Multiple pregnancies are linked to increasing the complications for the surrogate mother including late miscarriage, high blood pressure and pre-eclampsia and other ill health conditions as well as the surrogate child is also exposed to a range of health risks including stillbirth, neonatal death and disability for the child (BBC Asian Network, 28 October 2013 )
The practice of twiblings has brought forth some of the latent lacuna in the Indian surrogacy laws which remain  inadequately addressed under the ART Bill. The Bill does not stipulate the maximum or the minimum number of embryos to be transferred, the number of IVF cycles a the gestational carrier or surrogate mother may undergo. Such gap in law coupled with the lack of licensing or registration of ART clinics as well as lack of a monitoring body overseeing the conduct of ART Clinics in India raises alarming concern for the reproductive health of surrogate mothers.

Health professionals have raised questions over this trend as it involves serious health impairment and risks associated with multiple pregnancies which can even lead to death or maternal mortality of the surrogate mothers.

Many nations strictly prohibit multiple embryo transfer under their respective laws and regulations , in many surrogacy legislation or regulations , UK under Human Fertilization and Embryology Act 2008 bans twiblings.
Thus , the early enactment of law along with inclusion of necessary provisions to address these concerns are highly imperative. It may also be stated that considering the large scale misuse of surrogacy, there should be penal measures associated with these provision in order to ensure strict control or curbing of this practice at the earliest.
(Sonali Kusum is a Ph.D Research Scholar at National Law School of India University Bangalore. She holds BA LLB, LLM ( Human Rights), UGC ( NET) , PG Dip. Social Work.)

 

 

 

 

 

 

 

 

 

Adoption to the Rescue of Surrogate child

Pub. Info. – “Adoption to the Rescue of Surrogate child” by Sonali Kusum, Flair Talk , Legal Magazine , Cover story, Vol.1 , Issue 2, March 2014.

Surrogacy has become popular across the world as viable option to have child and build family for the infertile couple who may not be able to have child through normal course.

India as the hub of global surrogacy destination –

India has earned itself the epithet of being the global surrogacy capital of the world,[1] particularly Anand in Gujarat is called as the cradle of the world[2].  The confederation of Indian Industry states that surrogacy generates $2.3 billion a year.[3]  It is reported that almost half of the children born through surrogacy in India belonging to non-Indian clients or foreign intending couple. According to the Department of Immigration and Citizenship of Australia the Australians make up at least 40 per cent of the foreigner intending couple visiting India for surrogacy[4].

There are  various factors for making India the global destination for surrogacy , the cheaper cost of surrogacy Treatment  , abundant availability of poor women willing to be surrogate mother ,lack of regulations on surrogacy, easier entitlement to parenthood, waiver of custody , guardianship rights by surrogate mother , enforceability of surrogacy agreement are  attracting foreign couples to avail surrogacy in India.

India’s legal position on surrogacy-

India has legalized surrogacy since the year 2002. The landmark judgment of Baby Manaji Yamanda India legalized commercial surrogacy paving way for drafting of legal instruments for regulating  surrogacy  , the Assisted Reproductive Technology  ( Regulation) Bill  2008 which was revised leading to the Assisted Reproductive Technology  ( Regulation) Bill 2010, by the Ministry of Health & Family Welfare, Government of India,  at present it is only a  Bill awaiting its enforcement , validity and its legal binding effect.

One of the distinct feature of Indian Surrogacy is commercial and transnational  (section 34 (1) , (3) , (19) of ART Bill 2010)  nature it permits both citizens of India as well  as citizens of foreign nationals  to commission surrogacy in India   by availing the services of surrogate mother ( with or without donor gametes )  in exchange of monetary payment under a surrogacy  agreement .

Legal Issues in International or Inter country Surrogacy Arrangements –

There is no international uniform convention or treaty regulating surrogacy at international level. Different countries provide for different legal regimes on surrogacy, for instance, while India , Ukraine , California permits commercial surrogacy , UK , South Africa, Canada , Australia , ban commercial Surrogacy , Japan France, Sweden, Germany many other European nations prohibits surrogacy in all forms. thus there is conflict of the inconsistent or varying surrogacy legal regimes . Owing to such legal inconsistency , International surrogacy arrangements have a thrown up a host of legal issues non enforceability of surrogacy agreement, non registration of birth of surrogate child, non recognition of the legal documents birth certificate, non recognition of parentage rights of intending couple over the surrogate child in another nation.

Though India is considered as a hub of surrogacy , The present Indian legal instrument on surrogacy are not adequate to address the issues or concerns raised by international surrogacy arrangements . Presently in India ART Bill  2010 awaiting its enforcement  , the surrogacy agreement  made in India has no legally valid or binding effect outside the territorial limit of India. At the same time, the Government of India does grant citizenship by birth to the  surrogate child born in India to a foreign intending couple  ( section  35 (8) of ART Bill 2010 ) and  do not allow the surrogate children to be taken outside the Indian territory or back to the foreign country as India citizen.

These Foreign Intending couples face legal troubles on their way back to the foreign country starting with denial of passport, Exit visa stamping for the surrogate child  by  the foreign Embassy,  denial of parentage or filiations right to the Intending couple , birth registration of surrogate child as per their country specific laws . thus, the surrogate child faces the threat of being left behind in India  in the absence of defined parentage and citizenship.

Thus there is a legal void for securing the inter country movement of surrogate child and  for enforcing the incidental basic civil legal rights of the surrogate child.  Under such conditions,  Foreign  Embassy , Indian and international courts have heavily relied on the adoption of surrogate child  in order to facilitate the inter country movement of surrogate child thereby  safeguarding the  basic civil legal right of surrogate child

As India as well as most of the countries of the world have not only clear established laws or statutes on Adoption but most of the countries are party to Hague Convention on Protection of Children Co-operation in respect of inter country Adoption 1993 which lay down procedure for inter country adoption of children by seek to create permanent child parent relation . Besides ,the legal effect of adoption is same as that of biological child of the couple where as in case of surrogacy , the legal effect , validity to the birth of surrogate child is highly dubious as it is hit by the inconsistency in the inter country surrogacy law and absence of uniform legal mechanism for the same.

Embassy Directions, Immigration  Rules of foreign countries providing for adoption of surrogate child –

Immigration Regulations of UK   , Australia  , New Zealand provide for adoption of surrogate child born of international surrogacy arrangements by the intending couple.

Besides Adoption has been recommended by the foreign embassy as the only available measure in absence of necessary proof of establishment of motherhood or parenthood of the Foreign Intending couple over the  surrogate child .

Supreme Court of India directs Adoption of Surrogate children –

In addition to the these,  the Supreme Court (SC ) of India has provided for adoption of children born of international surrogacy arrangement as a measure to resolve the issues resulting from  the inter country conflicting surrogacy laws namely parentage right, birth registration,  citizenship of the surrogate child. There have been  two landmark cases on this point which may be mentioned here .

In  Baby Manaji Yamanda. Union of India (Writ Petition  (C) No. 369 OF 2008) –

A Japanese  couple commissioned surrogacy in India at Aanand in Gujarat by availing the service of  surrogate mother with egg  from anonymous donor and his own donated sperm , following the birth of a surrogate child Manji in India , the Japanese Embassy in India refused to grant Manji a Japanese passport or visa in keeping with the Japan civil code which states birth mother is the legal mother thus the surrogate mother is the legal mother which created further legal issues. Meanwhile, during the pendency of proceeding the couple divorced there after the ex wife did not want the child .

Considering the absence of any law on surrogacy in India, the court provided for adoption of the surrogate child manaji in India by the intending father  but this adoption of the baby girl by a single male was not permissible under Guardians and Wards Act 1890,as this law does not allow single men to adopt baby girls.

The court made a legal exception and granted birth certificate stating intending father as the legal father to the child and based on the birth certificate the Japanese authority granted passport, visa on humanitarian grounds for safeguarding the interest of surrogate child .

Secondly , in the case of Jan Balaz Vs. Anand Municipality and 6 Ors. (AIR2010Guj21)  A German couple Jan Balaz commissioned surrogacy availing  donor eggs and surrogate mother , the child was biologically related to Mr Balaz through donated sperm, resulting in the birth of two surrogate twins .  But subsequently the German consulate refused to issue passports to the surrogate child based on the German law which strictly prohibits surrogacy and does not recognize surrogacy as a means of establishing parenthood accordingly the Balaz’s had no legal filiation to the children. Eventually, the matter reached the supreme court which requested Central Adoption resource Agency,  (CARA ) is an autonomous body under the Ministry of Women & Child Development, Government of India. It deal with inter- country adoptions in accordance with the provisions of the Hague Convention on Inter-country Adoption, 1993, ratified by Government of India in 2003)  to make a one time  exception on humanitarian ground considering the child welfare and facilitate adoption for these twins .  Accordingly these surrogate twins were adopted by the German Couple and they were taken back to Germany

These cases open a flood gate of unresolved  legal issues as the court has not laid down  any  guidelines  but provided for adoption  as a  provisional measure for saving the surrogate child from being rendered stateless and parentless.

ART Bill provides for Adoption of Surrogate Children –

Keeping with such eventualities, even the ART Bill 2010 (Section 34 (19)  also provides for adoption of surrogate children under certain conditions by  local guardian where the  foreign intending party  fails to take delivery of the surrogate child born in India,

Thus adoption has by far appeared to be the only workable measure , but adoption may not be held to be the ultimate resolve as there contesting issues involved in the same

Analysis of Inconsistency & Impediments in Surrogacy & Adoption –

Though , Adoption as well as Surrogacy are both are means to  attainment of  right to family or  right to attainment of  Parenthood. Despite this  similarities, there are marked differences between surrogacy and adoption , surrogacy involves commercial transaction or exchange of monetary payment under a surrogacy agreement made before the birth of child for gaining custody guardianship or parentage rights over the surrogate child  where as adoption strictly prohibits the same and penalizes any such agreement providing payment for relinquishing the  custody of child , thus the fundamentally they are not only different but strictly opposing and strike at the legality . Accordingly , Hindu Adoption & Maintenance Act 1956 ( Section 17 )  not only  prohibits but penalizes such payment for adoption .

There are implicit legal issues in the applicability of adoption in surrogacy arrangements, adoption conveys  that the surrogate mother is presumed to be the legal mother of the child , thereby the surrogate mother and her husband have the legal capacity to give the child in adoption, this  is highly questionable as the surrogate mother  is only the gestational carrier and not the genetically related to the child ,  DNA test if conducted in such cases would reveal the biological connection with the intending mother i.e the wife of the intending father or the egg donor thus the capacity of surrogate to give child in adoption may be contested and may invite other legal issues !

Taking forward the same reasoning, adoption leads to  illogical inferences that the surrogate mother’s name should be entered in the birth certificate of the surrogate child as the legal mother and her husband as the father of the surrogate child ,  It may be mentioned here that the ART Bill 2010 ( section 34 (10) prohibits the naming of surrogate mother in the birth certificate of the child as the legal mother rather it expressly mentions the name of Intending couple who has commissioned surrogacy as the legal parents or legal father and mother of the surrogate child.

Last but not the least , the applicability of this Hague Convention on Protection of Children Co-operation in Respect of inter country Adoption 1993 in international surrogacy is doubtful, as the provisions laying down adoption under this convention run counter to the international surrogacy arrangements.

The Hague Convention ( section 4) provides for adoption not induced by monetary payment , consent to be given by mother  after the birth of child[5]  thus, only Adoption made in compliance of same my be held  internationally legally valid  and adoption made otherwise have no legal effect or invalid.

Where as   the surrogacy agreement   expressly provide for monetary payment to the surrogate mother by the intending couple to carry the child  for giving birth and relinquishing the custody of surrogate child. hence it is evident that the  use of adoption in all cases blindly will not suffice. Therefore  there is need to formulate an uniform instrument universally binding which may address concerns related to surrogate child born out of international surrogacy arrangement involving inconsistent surrogacy laws of respective nations.

A step in right direction   – Proposed Hague Conference on Private International Law on Status of Children, Including Issues Arising from International Surrogacy Arrangements” suggesting formulation of new  convention on the lines of  Hague Inter country Adoption Convention 2011 – 2013 year.

The Permanent Bureau of the Hague Conference on Private International Law  since 2011 is working to build a  consensus on a global approach to addressing international surrogacy issues. And the need for formulation of Convention governing international surrogacy arrangements, akin to the 1993 Inter country Adoption Convention which governs  international adoptions for the surrogate children. The final comprehensive outcome is awaited.

Surrogacy has become popular across the world as viable option to have child and build family for the infertile couple who may not be able to have child through normal course.

India as the hub of global surrogacy destination –

India has earned itself the epithet of being the global surrogacy capital of the world,[1] particularly Anand in Gujarat is called as the cradle of the world[2].  The confederation of Indian Industry states that surrogacy generates $2.3 billion a year.[3]  It is reported that almost half of the children born through surrogacy in India belonging to non-Indian clients or foreign intending couple. According to the Department of Immigration and Citizenship of Australia the Australians make up at least 40 per cent of the foreigner intending couple visiting India for surrogacy[4].

There are  various factors for making India the global destination for surrogacy , the cheaper cost of surrogacy Treatment  , abundant availability of poor women willing to be surrogate mother ,lack of regulations on surrogacy, easier entitlement to parenthood, waiver of custody , guardianship rights by surrogate mother , enforceability of surrogacy agreement are  attracting foreign couples to avail surrogacy in India.

India’s legal position on surrogacy-

India has legalized surrogacy since the year 2002. The landmark judgment of Baby Manaji Yamanda India legalized commercial surrogacy paving way for drafting of legal instruments for regulating  surrogacy  , the Assisted Reproductive Technology  ( Regulation) Bill  2008 which was revised leading to the Assisted Reproductive Technology  ( Regulation) Bill 2010, by the Ministry of Health & Family Welfare, Government of India,  at present it is only a  Bill awaiting its enforcement , validity and its legal binding effect.

One of the distinct feature of Indian Surrogacy is commercial and transnational  (section 34 (1) , (3) , (19) of ART Bill 2010)  nature it permits both citizens of India as well  as citizens of foreign nationals  to commission surrogacy in India   by availing the services of surrogate mother ( with or without donor gametes )  in exchange of monetary payment under a surrogacy  agreement .

Legal Issues in International or Inter country Surrogacy Arrangements –

There is no international uniform convention or treaty regulating surrogacy at international level. Different countries provide for different legal regimes on surrogacy, for instance, while India , Ukraine , California permits commercial surrogacy , UK , South Africa, Canada , Australia , ban commercial Surrogacy , Japan France, Sweden, Germany many other European nations prohibits surrogacy in all forms. thus there is conflict of the inconsistent or varying surrogacy legal regimes . Owing to such legal inconsistency , International surrogacy arrangements have a thrown up a host of legal issues non enforceability of surrogacy agreement, non registration of birth of surrogate child, non recognition of the legal documents birth certificate, non recognition of parentage rights of intending couple over the surrogate child in another nation.

Though India is considered as a hub of surrogacy , The present Indian legal instrument on surrogacy are not adequate to address the issues or concerns raised by international surrogacy arrangements . Presently in India ART Bill  2010 awaiting its enforcement  , the surrogacy agreement  made in India has no legally valid or binding effect outside the territorial limit of India. At the same time, the Government of India does grant citizenship by birth to the  surrogate child born in India to a foreign intending couple  ( section  35 (8) of ART Bill 2010 ) and  do not allow the surrogate children to be taken outside the Indian territory or back to the foreign country as India citizen.

These Foreign Intending couples face legal troubles on their way back to the foreign country starting with denial of passport, Exit visa stamping for the surrogate child  by  the foreign Embassy,  denial of parentage or filiations right to the Intending couple , birth registration of surrogate child as per their country specific laws . thus, the surrogate child faces the threat of being left behind in India  in the absence of defined parentage and citizenship.

Thus there is a legal void for securing the inter country movement of surrogate child and  for enforcing the incidental basic civil legal rights of the surrogate child.  Under such conditions,  Foreign  Embassy , Indian and international courts have heavily relied on the adoption of surrogate child  in order to facilitate the inter country movement of surrogate child thereby  safeguarding the  basic civil legal right of surrogate child

As India as well as most of the countries of the world have not only clear established laws or statutes on Adoption but most of the countries are party to Hague Convention on Protection of Children Co-operation in respect of inter country Adoption 1993 which lay down procedure for inter country adoption of children by seek to create permanent child parent relation . Besides ,the legal effect of adoption is same as that of biological child of the couple where as in case of surrogacy , the legal effect , validity to the birth of surrogate child is highly dubious as it is hit by the inconsistency in the inter country surrogacy law and absence of uniform legal mechanism for the same.

Embassy Directions, Immigration  Rules of foreign countries providing for adoption of surrogate child –

Immigration Regulations of UK , Australia, New Zealand provide for adoption of surrogate child born of international surrogacy arrangements by the intending couple.

Besides Adoption has been recommended by the foreign embassy as the only available measure in absence of necessary proof of establishment of motherhood or parenthood of the Foreign Intending couple over the  surrogate child .

Supreme Court of India directs Adoption of Surrogate children –

In addition to the these,  the Supreme Court (SC ) of India has provided for adoption of children born of international surrogacy arrangement as a measure to resolve the issues resulting from  the inter country conflicting surrogacy laws namely parentage right, birth registration,  citizenship of the surrogate child. There have been  two landmark cases on this point which may be mentioned here .

In  Baby Manaji Yamanda. Union of India (Writ Petition  (C) No. 369 OF 2008) –

A Japanese  couple commissioned surrogacy in India at Aanand in Gujarat by availing the service of  surrogate mother with egg  from anonymous donor and his own donated sperm , following the birth of a surrogate child Manji in India , the Japanese Embassy in India refused to grant Manji a Japanese passport or visa in keeping with the Japan civil code which states birth mother is the legal mother thus the surrogate mother is the legal mother which created further legal issues. Meanwhile, during the pendency of proceeding the couple divorced there after the ex wife did not want the child .

Considering the absence of any law on surrogacy in India, the court provided for adoption of the surrogate child manaji in India by the intending father  but this adoption of the baby girl by a single male was not permissible under Guardians and Wards Act 1890,as this law does not allow single men to adopt baby girls.

The court made a legal exception and granted birth certificate stating intending father as the legal father to the child and based on the birth certificate the Japanese authority granted passport, visa on humanitarian grounds for safeguarding the interest of surrogate child .

Secondly , in the case of Jan Balaz Vs. Anand Municipality and 6 Ors. (AIR2010Guj21)  A German couple Jan Balaz commissioned surrogacy availing  donor eggs and surrogate mother , the child was biologically related to Mr Balaz through donated sperm, resulting in the birth of two surrogate twins .  But subsequently the German consulate refused to issue passports to the surrogate child based on the German law which strictly prohibits surrogacy and does not recognize surrogacy as a means of establishing parenthood accordingly the Balaz’s had no legal filiation to the children. Eventually, the matter reached the supreme court which requested Central Adoption resource Agency,  (CARA Central Adoption Resource Authority (CARA) is an autonomous body under the Ministry of Women & Child Development, Government of India. It deal with inter- country adoptions in accordance with the provisions of the Hague Convention on Inter-country Adoption, 1993, ratified by Government of India in 2003)  to make a one time  exception on humanitarian ground considering the child welfare and facilitate adoption for these twins .  Accordingly these surrogate twins were adopted by the German Couple and they were taken back to Germany

These cases open a flood gate of unresolved  legal issues as the court has not laid down  any  guidelines  but provided for adoption  as a  provisional measure for saving the surrogate child from being rendered stateless and parentless.

ART Bill provides for Adoption of Surrogate Children –

Keeping with such eventualities, even the ART Bill 2010 (Section 34 (19)  also provides for adoption of surrogate children under certain conditions by  local guardian where the  foreign intending party  fails to take delivery of the surrogate child born in India,

Thus adoption has by far appeared to be the only workable measure , but adoption may not be held to be the ultimate resolve as there contesting issues involved in the same.

Analysis of Inconsistency & Impediments in Surrogacy & Adoption –

Though , Adoption as well as Surrogacy are both are means to  attainment of  right to family or  right to attainment of  Parenthood. Despite this  similarities, there are marked differences between surrogacy and adoption , surrogacy involves commercial transaction or exchange of monetary payment under a surrogacy agreement made before the birth of child for gaining custody guardianship or parentage rights over the surrogate child  where as adoption strictly prohibits the same and penalizes any such agreement providing payment for relinquishing the  custody of child , thus the fundamentally they are not only different but strictly opposing and strike at the legality . Accordingly , Hindu Adoption & Maintenance Act 1956 ( Section 17 )  not only  prohibits but penalizes such payment for adoption .

There are implicit legal issues in the applicability of adoption in surrogacy arrangements, adoption conveys  that the surrogate mother is presumed to be the legal mother of the child , thereby the surrogate mother and her husband have the legal capacity to give the child in adoption, this  is highly questionable as the surrogate mother  is only the gestational carrier and not the genetically related to the child ,  DNA test if conducted in such cases would reveal the biological connection with the intending mother i.e the wife of the intending father or the egg donor thus the capacity of surrogate to give child in adoption may be contested and may invite other legal issues !

Taking forward the same reasoning, adoption leads to  illogical inferences that the surrogate mother’s name should be entered in the birth certificate of the surrogate child as the legal mother and her husband as the father of the surrogate child ,  It may be mentioned here that the ART Bill 2010 ( section 34 (10) prohibits the naming of surrogate mother in the birth certificate of the child as the legal mother rather it expressly mentions the name of Intending couple who has commissioned surrogacy as the legal parents or legal father and mother of the surrogate child.

Last but not the least , the applicability of this Hague Convention on Protection of Children Co-operation in Respect of inter country Adoption 1993 in international surrogacy is doubtful, as the provisions laying down adoption under this convention run counter to the international surrogacy arrangements.

The Hague Convention ( section 4) provides for adoption not induced by monetary payment , consent to be given by mother  after the birth of child[5]  thus, only Adoption made in compliance of same my be held  internationally legally valid  and adoption made otherwise have no legal effect or invalid.

Where as   the surrogacy agreement   expressly provide for monetary payment to the surrogate mother by the intending couple to carry the child  for giving birth and relinquishing the custody of surrogate child. hence it is evident that the  use of adoption in all cases blindly will not suffice. Therefore  there is need to formulate an uniform instrument universally binding which may address concerns related to surrogate child born out of international surrogacy arrangement involving inconsistent surrogacy laws of respective nations.

A step in right direction   – Proposed Hague Conference on Private International Law on Status of Children, Including Issues Arising from International Surrogacy Arrangements” suggesting formulation of new  convention on the lines of  Hague Inter country Adoption Convention 2011 – 2013 year.

The Permanent Bureau of the Hague Conference on Private International Law  since 2011 is working to build a  consensus on a global approach to addressing international surrogacy issues. And the need for formulation of Convention governing international surrogacy arrangements, akin to the 1993 Inter country Adoption Convention which governs  international adoptions for the surrogate children. The final comprehensive outcome is awaited.