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Regular ICLIP bloggers, Anil Malhotra and Ranjit Malhotra have a new book out: Surrogacy in India - A Law in the Making.
The brothers Malhotra, Anil and Ranjit, are among the best-known Indian lawyers in the United Kingdom. Having studied at the School of Oriental and African Studies in London, they are frequent visitors to our shores, playing a full part in international conferences and seminars, and finding time amid their busy legal practice to co-author books on the law affecting Non-Resident Indians (NRIs) ~ a diaspora numbering many millions. They have now produced a fourth book, exploring how the law struggles to keep up with technology in an area involving the deepest human instincts and feelings.
Childless couples have long resorted to adoption, but adoption across national boundaries can be extremely difficult. The British immigration rules only recognise overseas adoptions which have taken place in a country on a designated list dating back to 1973, and badly in need of updating. The custom of inter-family adoption, whereby a childless couple will adopt the child of a close relative who has one to spare is particularly prevalent within the Hindu and Sikh communities, but in Radhika Sharma v ECO, New Delhi  EWCA Civ 89 the Court of Appeal in London upheld the refusal of a visa for an Indian couple based in the UK to bring over the niece whom they had adopted in India. As outlined in the Malhotras' book, the matter was taken up at the European Court of Human Rights, and in 2006 the British government gave in, agreeing to pay all the costs incurred by the family. But that was just one case. The immigration rules themselves remain as inflexible as ever.
Inflexibility over adoption can be seen in India too. As the Malhotras explain, the Hindu Adoption and Maintenance Act 1956 prevents non-Hindus from adopting Hindu children. In recent years, however, developments in science and technology have enabled people to become biological rather than adoptive parents, despite problems with fertility and conception. Sperm from an anonymous donor can come to the rescue, although a donor who was not anonymous received a shock a few years ago when, having donated his sperm to a lesbian friend who wanted to bring up a child with her lady paramour, the Child Support Agency subsequently pursued him for child maintenance.
In vitro fertilisation is a more recent development, the first ‘test tube baby', Louise Brown, having been born only in 1978. But what if the woman who supplies the egg cannot, after it has been fertilised, have the embryo implanted in her own womb? That is where a surrogate mother is needed, and that is the focus of this timely and lively book. It is much cheaper to find a surrogate mother in India than in countries such as the USA and the UK, so couples, whether of Indian origin or not, have been coming to India for this purpose in increasing numbers ~ so much so that the Supreme Court has taken note of the pejorative terms being bandied about, such as ‘wombs for rent', ‘outsourced pregnancies' and ‘baby farms'.
The Malhotras give vivid examples of the problems that can arise. An embryo cultured from a couple in Japan was accepted by a surrogate mother in Ahmedabad, but when the baby was born the couple had divorced and no longer wanted it. The Japanese grandmother came along, however, wanting to take the baby away and look after it herself. This proved very difficult. The Supreme Court had to direct that an ‘identity certificate' be issued for the baby in order for it to be taken out of India, and it is unclear whether the baby has got Japanese nationality. A gay Israeli couple, the sperm from one of whom was used to initiate a surrogate pregnancy in Badra, had great difficulty bringing the baby to Israel, where gay marriage is not recognised and gay couples are not allowed to adopt children. Two children born to surrogate mothers in India had less trouble being issued with British passports in order for them to join their parents in the UK, but a High Court judge still had to grant parental orders in December 2011.
Despite such difficulties, the market for Assisted Reproductive Technology, to use the all-embracing term, is booming in India, and as the Malhotra brothers complain, it is completely unregulated. There are only non-binding guidelines laid down by the Indian Council for Medical Research. Very recently, however, new Visa Regulations have come into force which limit the issue of a Medical Visa for the purpose of making surrogacy arrangements to married couples, whose marriage has subsisted for at least two years. This will not be available to unmarried couples, gay couples or single people who want to commission surrogacy, and they will not be allowed to use a Tourist Visa for this purpose. The restrictions emanate from the Ministry of Home Affairs, and are purely an exercise of executive discretion, without any involvement by the democratically-elected legislature.
The legislature is proposing to get involved, however, with the publication in 2010 of the Assisted Reproductive Technology (Regulation) Bill. As the Malhotra brothers acknowledge, the aim is laudable, to regulate the private clinics which have been flourishing unchecked in a way that is wide open to abuse. But the authors subject the Bill to a withering critique, showing up its many weaknesses and lacunae. One hopes that these criticisms will be taken into account when the Bill makes its way through the Indian Parliament. Its passage has not yet started, so the opportunity is there to make changes.
Meanwhile, Anil and Ranjit Malhotra continue to be active in all areas concerning the cross-border welfare of children. As recently as May this year they were the instigators of an international symposium in New Delhi, at which eminent jurists and experts from the United Kingdom, Australia, the United States and elsewhere called upon the Indian government to sign up to the Hague Convention on International Child Abduction. One suspects that the unflagging energy of the Malhotra brothers will in due course produce another book on children and the law, a hot topic in many countries, including our own, where the Home Office now has a duty to "safeguard and promote the welfare of children", even if they are here unlawfully. But for now, the reader may turn to Surrogacy in India for a fascinating overview and analysis of the situation in the only country in the world which is proposing to legalise commercial surrogacy.
17 June 2013
Judge of the Upper Tribunal
The Red Book is the acknowledged authority on practice and procedure