04 DEC 2015
India - Surrogacy in India: A law in the making
Despite the legal, moral and social complexities that shroud surrogacy, there is nothing stopping people from exploring the possibility of becoming a parent. Women who choose to 'rent' their womb for a surrogate pregnancy are slowly shaking off their inhibition and fear of social ostracism to bring joy to childless couples. Commercial surrogacy in existence for the past ten years and over has become an unregulated medical tourism industry.
The Indian Council of Medical Research (ICMR), working under the auspices of the Ministry of Health and Family Welfare, finalised the National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India in 2005 after extensive public debate all over the country from all stakeholders. Under these 2005 guidelines, there was no legal bar to the use of ART by a single or an unmarried woman and the child born would have legal rights on the woman or man concerned. Thereafter, the draft Assisted Reproductive Technology (Regulation) Bill 2008 (ART Bill 2008), the draft Assisted Reproductive Technology (Regulation) 2010 (ART Bill 2010) and the draft ART Bill 2013, stated to be revised based on the recommendations of the Ministry of Law and Justice, have consistently proposed that ART in India would be available to all persons including single persons and foreign couples. The ART Bill 2013 was, however, not circulated or placed in the public domain for discussion, comment or opinion. Whilst the Bill never became a law, the ICMR Guidelines 2005 provide the only non-statutory provisions which are neither justiciable not enforceable in a Court of Law. The medical visa guidelines further qualify the ICMR guidelines with restrictions. The future of surrogacy thus remains uncertain, with vastly different policy changes on the subject.
With no codified law by Parliament, commercial surrogacy flourished and the Supreme Court in Baby Manji Yamada AIR SSC 84 observed:
'commercial surrogacy reaching industry proportions is sometimes referred to the emotionally charged and potentially offensive terms: wombs for rent, outsourced pregnancies or baby farms'.
The draft Assisted Reproductive Technology (Regulations) Bills of 2008, 2010 and 2013 proposed that ART in India would be available to all persons including single parents and foreign couples. Meanwhile, in the absence of clear legal answers on issues of parentage, citizenship, nationality and rights of parties in surrogacy arrangements, problems proliferated and solutions dwindled. Exploitation became rampant and surrogacy flourished in India as a cheaper destination for foreigners. Law remained a silent spectator and extraordinary jurisdiction of writ courts was invoked for innovative solutions by foreigners so that newborn surrogate babies were not rendered stateless with exit permits, summary adoptions procedures and birth certificates being issued summarily.
On September 30 2015, a draft Bill titled 'The Assisted Reproductive Technology (Regulation) Bill 2014' (ART Bill 2014) was circulated by the Ministry of Health and Family Welfare in the public domain for general public/stakeholders, inviting suggestions/comments within 45 days. It contemplates that surrogacy shall be available to all married infertile couples, thereby debarring single persons from surrogacy. It proposes to disallow surrogacy for foreigners, but makes it permissable for Overseas Citizens of India (OCIs), People of Indian Origin (PIOs), Non-Resident Indian (NRIs) and foreigners married to Indian citizens with two years of marriage who will have to obtain a Medical Visa for surrogacy in India. The Bill further proposes foreign nationality for such surrogate children of above foreign commissioning parents with limited entitlement of OCI status under the Citizenship Act 1955. The Bill disentitles Indian citizenship to such surrogate children.
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However, the ART Bill 2014 has legal lacunae, lacks the creation of a specialist legal authority for adjudication and determination of legal rights of parties by a judicial verdict, and falls into conflict with existing laws. These pitfalls may be the beginning of the end for this proposed new law. New Indian medical visa guidelines 2012 have restricted commissioning of surrogacy arrangements in India to foreign men and women only whose marriage should have sustained for at least two years. Single parents, same sex couples or unmarried partners can no longer commission surrogacy on tourist visas to India, and the ART Bill 2014 restricts surrogacy to infertile married couples only.
As of now, the 2012 guidelines of the Ministry of Home Affairs restricting the joy of parenthood through surrogacy to only foreign couples with at least two years of marriage, thereby depriving single foreign parents their right to be fathers or mothers, falls foul of the 2015 statutory guidelines of the Ministry of Women and Child Development which permits any prospective adoptive single foreign parent, irrespective of his marital status, to adopt a child from India. The benefit of Article 21 of the Constitution, available to all persons including foreign nationals in India, guarantees the right to life to all. It envelopes the right to privacy, to which the right to reproductive autonomy is inherent. Therefore, the right to bear a child or the right to become a parent by surrogacy cannot be curtailed by Government guidelines. Furthermore, the ban on conceiving children through surrogacy by single foreign parents also contradicts the new statutory mandate of adoption of Indian children by single foreign parents. The left and right hands of the Government do not seem to be in tandem.
In an ongoing appeal pending in the Supreme Court since 2010, in the matter of two German children in the case of Jan Balaz born through surrogacy on 14 October 2015, the Supreme Court has identified fourteen issues for determination confronting the very viability, legality, morality and approval of commercial surrogacy. notice has also been taken of permissability of import of human embryos amounting to commoditisation of human life and in violation of right to life. This is whilst the Government has initiated a consultative process on the ART Bill 2014. Serious debate, deliberation and pondering is immediate need on surrogacy.
India, having kindled the fire of surrogacy, now cannot sit back and turn a blind eye. Considering that the commissioning mothers may be Indian nationals whose lives and safety may be at grave risk, there is a dire need for enactment of a wholesome law enveloping all current societal practices associated with surrogacy. If, by an existing law made by Parliament, children from India are permitted to be adopted by foreigners irrespective of being a couple or being single, subject to checks, clearances, permissions and screening by a court, a similar logic must prevail for surrogacy as well. The proper approach would be to regulate the practice by a clear codified law in tandem with what has become a societal practice. Persons, citizens or foreigners will not matter. The appropriate and desirable method would be to create a mechanism to judge suitability of proposed surrogate parents rather than to debar all single or foreign persons. An existing strict and rigorous mechanism for inter-country adoptions administered by the Central Adoption Resource Agency (CARA), which is now proposed to be a statutory body, is the ideal example to cite in support. We cannot shut our thinking down simply because of the problems. Solutions must be found, and a law governing surrogacy in the waiting for the past 10 years must eventually give birth to a statute.