S. Basavaraj, Advocate, Daksha Legal, Member, Karnataka State Bar Council, Bengaluru. ra@dakshalegal.com +919845065416
With the passage of Surrogacy (Regulation) Bill, 2019 (Bill No.
156-C of 2019) in Lok Sabha on August 5, 2019, commercial surrogacy
in India will soon be prohibited, allowing only altruistic surrogacy. Once the
Bill becomes enactment, only close relatives will be permitted to act as surrogates to infertile
couples for “ethical altruistic” reasons. Unlike
commercial surrogacy in altruistic surrogacy, the surrogate receives no
financial reward for her pregnancy or the relinquishment of the child although
usually all expenses related to the pregnancy and birth are paid by the
intended parents such as medical expenses, maternity clothing, and other
related expenses.
The word “surrogate”,
originates from Latin word “subrogare”, which means “appointed to act in the
place of”. The intended parent(s) is the individual or couple who intends to
rear the child after its birth.
India has emerged as a surrogacy hub for
couples from other countries and there have been reports concerning unethical
practices, exploitation of surrogate mothers, abandonment of children born out
of surrogacy, and rackets involving intermediaries importing human embryos and
gametes. The 228th report of the Law Commission of India
recommended prohibiting commercial surrogacy and allowing altruistic
surrogacy by enacting suitable legislation.
India is also a
major provider of surrogacy for both domestic and international ‘intended
parents’. The factors that fuel commercial surrogacy are the availability of
medical infrastructure and potential surrogates, combined with international
demand. Surrogate mothers received medical, nutritional and overall health care
through surrogacy agreements.
The
economic scale of surrogacy in India is unknown, but study backed by the United
Nations in July 2012 estimated the business at more than Rs. 2800 crores a
year, with over 3,000 fertility clinics across India so far.
Perhaps the only decision from the Supreme Court of India on commercial surrogacy is Baby Manji Yamada v. Union of India, (2008) 13 SCC 518. Even at this point of time, there was no legislation governing surrogacy in India and neither any treaty nor convention at the international level in this regard had been signed.
Baby Manji Yamada was given birth to by a surrogate mother. The
biological parents Dr. Yuki Yamada
and Dr. Ikufumi Yamada came to India
in 2007 and had chosen a surrogate mother in Anand, Gujarat and a surrogacy
agreement was entered into between the biological father and biological mother
on one side and the surrogate mother on the other side. Later, matrimonial
discords arose between the biological parents. The child was moved to a
Hospital. The genetic father Dr. Ikufumi
Yamada had to return to Japan due to expiration of his visa. Municipality
at Anand had issued a birth certificate indicating the name of the genetic
father.
At this juncture,
a writ petition was filed by an NGO M/s SATYA before the Rajasthan High Court
seeking a writ of habeas corpus. The division bench of Rajasthan High Court
issued certain directions relating to production and custody of the child and
these directions were challenged by the grandmother of the child before the
Supreme Court.
The Supreme Court almost recognised commercial
surrogacy in the following words
“8. Surrogacy is a well-known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child’s genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them.
16. Surrogates may be relatives, friends, or previous strangers. Many surrogate arrangements are made through agencies that help match up intended parents with women who want to be surrogates for a fee. The agencies often help manage the complex medical and legal aspects involved. Surrogacy arrangements can also be made independently. In compensated surrogacies the amount a surrogate receives varies widely from almost nothing above expenses to over $30,000. Careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks.”
However, the
Supreme Court did not go into the controversy except saying that if any person
had any grievance, the same could be ventilated before the Commission
constituted under the Commissions for Protection of Child Rights Act,
2005. It may be noted that the
Commissions under the Act have powers to inquire into complaints and even to take
suo motu notice of matters relating
to: (i) deprivation and violation of child rights, (ii) non-implementation of
laws providing for protection and development of children, and (iii)
non-compliance with policy decisions, guidelines or instructions aimed at
mitigating hardships to and ensuring welfare of the children and to provide
relief to such children, or take up the issues arising out of such matters with
the appropriate authorities.
However the problem did not
end there. Baby Manji Yamada could not leave or stay in India since she held
neither Indian nor Japanese nationality. The issue was resolved when the Indian
government granted the baby a travel certificate. Later the Japanese government
issued visa to her on humanitarian grounds.
The Gujarat High Court had
an occasion to deal with the issue in K.
Jan Balaz v. Anand Municipality Air 2010 Guj 21. Twins were born with the
commercial surrogacy arrangements between a German married couple and an Indian
surrogate. On the birth certificate, intended father name was shown as father
and surrogate mother name was shown as mother. The Intended parents were unable
to secure German passport or visa for the children, so they attempted for the
Indian passport. Dealing with the conflict of nationality and parenthood of the
children born through commercial surrogacy arrangements between the foreign
couples and Indian surrogate, the Gujarat high Court rendered judgement, which
has far reaching consequences, that since surrogate mother was an Indian citizen,
the children could be considered as Indian citizens and would be entitled to
Indian Passport. This decision of the High Court was challenged in Union of India v. Jan Balaz, Civil Appeal
8714/2010 and the appeal is still pending before the Supreme Court.
As I can see from the Supreme Court website, the
Supreme Court stayed the judgment of the Gujarat High Court on 25 November
2009. However, on 25 October 2010 Union of India stated that procedure for
temporary adoption is under process and Central Adoption Resource Authority
which is an autonomous agency under the Ministry of Women and Child
Development, Government of India is processing the adoption procedure. Though
normally a surrogate child is not subjected to adoption but keeping in view the
facts of the case, Supreme Court observed that CARA might consider the case of
adoption in the instant case sympathetically. The order
dated 4 September 2014 shows that the issue was resolved. However larger issues
are pending adjudication.
In
2015 a Public Interest Litigation was filed in Supreme Court questioning India
continuing to permit commercial surrogacy while many others have already banned
it. The Supreme Court asked the government to clarify its stand on commercial
surrogacy.
Surrogacy
(Regulation) Bill, 2019. Salient features.
The Bill permits surrogacy when it is: (i) for
intending couples who suffer from proven infertility; (ii) altruistic; (iii)
not for commercial purposes; (iv) not for producing children for sale,
prostitution or other forms of exploitation; and (v) for any condition or
disease specified through regulations.
The Bill prescribes the eligibility criteria for
intending couple which is a ‘certificate of essentiality’ and a ‘certificate of
eligibility’ issued by the appropriate authority.
A
certificate of essentiality will be issued upon fulfilment of the following
conditions: (i) a certificate of proven infertility of one or both members
of the intending couple from a District Medical Board; (ii) an order of
parentage and custody of the surrogate child passed by a Magistrate’s court;
and (iii) insurance coverage for a period of 16 months covering postpartum
delivery complications for the surrogate.
The
certificate of eligibility to the intending couple is issued upon fulfilment of
the following conditions: (i) the couple being Indian citizens and married
for at least five years; (ii) between 23 to 50 years old (wife) and 26 to 55
years old (husband); (iii) they do not have any surviving child (biological,
adopted or surrogate); this would not include a child who is mentally or
physically challenged or suffers from life threatening disorder or fatal
illness; and (iv) other conditions that may be specified by regulations.
Eligibility criteria for surrogate mother: To
obtain a certificate of eligibility from the appropriate authority, the
surrogate mother has to be: (i) a close relative of the intending couple; (ii)
a married woman having a child of her own; (iii) 25 to 35 years old; (iv) a
surrogate only once in her lifetime; and (v) possess a certificate of medical
and psychological fitness for surrogacy. Further, the surrogate mother
cannot provide her own gametes for surrogacy.
The Bill provides for appointment of appropriate
authority whose functions include; (i) granting, suspending or cancelling
registration of surrogacy clinics; (ii) enforcing standards for surrogacy
clinics; (iii) investigating and taking action against breach of the provisions
of the Bill; (iv) recommending modifications to the rules and regulations.
The Bill prohibits surrogacy clinics from
undertaking surrogacy related procedures unless they are registered by the
appropriate authority. Clinics must apply for registration within a
period of 60 days from the date of appointment of the appropriate authority.
The
Bill also creates National and State Surrogacy Boards whose functions include, (i) advising the central
government on policy matters relating to surrogacy; (ii) laying down the code
of conduct of surrogacy clinics; and (iii) supervising the functioning of SSBs.
A
child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple. An abortion of the surrogate
child requires the written consent of the surrogate mother and the
authorisation of the appropriate authority. This authorisation must be
compliant with the Medical Termination of Pregnancy Act, 1971. Further,
the surrogate mother will have an option to withdraw from surrogacy before the
embryo is implanted in her womb.
The Bill makes the following as offences (i)
undertaking or advertising commercial surrogacy; (ii) exploiting the surrogate
mother; (iii) abandoning, exploiting or disowning a surrogate child; and (iv)
selling or importing human embryo or gametes for surrogacy. The penalty
for such offences is imprisonment up to 10 years and a fine up to 10 lakh
rupees. The Bill specifies a range of offences and penalties for other
contraventions of the provisions of the Bill.
The enactment on coming into force bans ‘baby for sale’ business.
However, Ms. Alice George and
Ms. Aviral
Chauhan, Advocates from Cyril Amarchand Mangaldas in
their Article published on April 1, 2019 titled “Surrogacy Bill and ART Bill:
Boon or Bane?” argues that “…while no
one advocates forced pregnancy, in the case of women who make an informed
choice and consent to be surrogates in lieu of monetary compensation, would not
a complete ban on commercial surrogacy deprive a person of a form of
livelihood?”. The authors rely on the judgment of the Supreme Court in Devika
Biswas v. Union of India (2016) 10 SCC 726 where the Supreme Court
recognised the right to reproduction as an important component of the ‘right to
life’ under Article 21. Thus, argue the authors, restricting Assisted
Reproductive Technique and surrogacy only to heterosexual relationships within
a certain age group and denying reproductive choices to LGBT, single persons
and older couples, would be a violation of Article 21. These restrictions also
agitate against the concept of right to equality under Article 14, the authors
argue. The authors also rely on the observations in B.K.
Parthasarthi v. Government of A.P. 2000 (1) ALD 199 that ‘the
right to make a decision about reproduction is essentially a very personal
decision and the intrusion of the State into such a decision-making process has
to be scrutinised. The authors argue that requiring couples or persons to
procure such certificates is a gross violation of their right to privacy.’
The scenario worldwide
appears to be one against commercial surrogacy. The following charts from
Wikipedia show the picture as of now.
Conclusion: Studies have shown several
surrogate mothers suffering from emotional distress over the
relinquishment and a strong instinctual urge to bond with the child. On the
other hand, there is a concern that lack of maternal attachment to the baby
during the surrogacy process may be challenging for the health of
both the mother and the baby. Both the scenarios are frightening. In my view,
every human activity which elicits or triggers a
strong emotional response including surrogacy shall not be
allowed to be commercialised.
S.Basavaraj
Advocate, Daksha Legal,
Member, Karnataka State Bar Council
Bengaluru.
raj@dakshalegal.com
+919845065416
Daksha Legal 