By: Anurag Chawla & Pooja Yadav, Advocates Surrogacy Laws India
Surrogacy is now a well-known concept throughout the world. In recent past decades, the concept has gained immense popularity in India. Easy availability of surrogate mothers, reasonable costs, medical expertise, etc. are some of the significant factors which make India the most favorite destination to help a childless parent.
Efforts have been taken from the Indian Government side from time to time to regulate what has become the fastest developing sector of India. The first set of guidelines for Assisted Reproductive Technology’ came in 2002, followed by 2005 and then the draft bill for Assisted Reproductive Technologies in 2008 and then a revised version in 2010. However very recently the new guidelines (herein referred to as ‘new guidelines’) issued by Ministry Of Home Affairs for Foreign Nationals (Intended Parents) intending to visit India for commissioning surrogacy has created a cause for alarm to go out throughout the world. These new guidelines currently ban all single and same sex couples from pursuing surrogacy in India. This article will hopefully help potential Intended Parents better understand the current legal situation for pursuing surrogacy in India.
The Draft Bill on Assisted Reproductive Technologies, 2010, hereinafter referred to as ‘The Act’ is expected to be the most promising legislation to regulate the field. Aspects like exploitation of surrogate mothers by intermediaries, the unregulated functioning of Assisted Reproductive Technologies (ART) Clinics, legitimacy of the child, future of child in case of parent’s death and no claimant, rights of donors, the punishment and fine in case of violation of the provisions of the legislation, etc. are some of the issues which are elaborately addressed in The Act.
The Act states that no woman below the age of 21 and above the age of 45 could act as a surrogate mother. The surrogate mother is obliged by law to relinquish in writing all the rights over the child she gives birth. Furthermore a surrogate mother cannot be biologically related to the child and must not have given more than five successful live births. The number of embryos to be thawed should be as per the rules prescribed for ART. It has been alleged on several occasions that a surrogate mother often doesn’t gets her due compensation and is exploited. The Act makes it a punishable offense to use paid intermediaries to obtain surrogate mothers and donors. Also the Act states that clinics shall in no way be responsible or allowed to find the surrogate mother. Advertising for, compensating and overseeing the surrogate mothers and the surrogacy component would now be the function of separate ART Bank and not the clinics themselves. These banks are to act independently of any particular clinic. The Act furthermore takes steps to ensure that the surrogate is taken due care by making the provision of insuring the life of the surrogate mother and the child and also making the Intended Parents responsible for accepting the child even if there are abnormalities.
The Act makes an attempt to secure the rights of the child/ren born out of surrogacy arrangements by providing them the status of legitimate children of Intended Parent/s with all the rights to know the information about the donor once they attain 18 years of age, excluding the personal identity of the donor. Furthermore, it became compulsory for the Intended Parents not residing in India to appoint a Guardian to look after the surrogate mother. If the Foreign Intended Parents seeking surrogacy fail to take delivery of the child born to the surrogate mother commissioned by the Foreign Intended Parents, the Local Guardian shall be legally obliged to take delivery of the child and be free to hand the child over to an adoption agency, if the Intended Parents or their Legal Representative fails to claim the child within one month of the birth of the child. During the transition period, the Local Guardian shall be responsible for the well being of the child. In case of adoption or the Legal Guardian having to bring up the child, the child will be given Indian citizenship.
The Act also brings about another big change by making it compulsory for all ART clinics to register with the Indian Council of Medical Research (ICMR) and only then be legally allowed to operate. Also the clinics would be required to maintain a database of all the patients that they treat and the donor, surrogate and treatment that they use for them. These records shall allow the Parent or the Child or the Local Guardian to anytime get information in life saving situations for the individual by an appropriate order of Court.
Despite the fact that the Act was put into place in 2010, some of its provisions have only recently come into operation. The recent 2013 guidelines issued by Ministry of Home Affairs states that all the clinics shall be registered, if they wish to operate as ART clinic and to date many clinics have not gotten their registration numbers.
The Act also states that the Foreign Intended Parents must get a letter from their country stating that the child born out of surrogacy will be granted citizenship. What this means is that the Intended Parents must reside in a country where surrogacy is legal, otherwise the baby will not be issued a passport from the Intended Parent’s country (the baby will never be issued an Indian passport). This provision is written with the intention that the child at no cost not remains stateless as there have been cases where conflicting State policies have left the child at the mercy of the Governments. The most prominent cases were of Baby Manji (Japan) and Jan Balaz (Germany). In the Baby Manji Yamada Case, the child was granted the passport on humanitarian ground and subsequently the Japanese Government allowed the child Japanese Nationality after a long wait and legal hassle for the Intended father directing him “to establish a parent-child relationship either by recognizing his paternity or through his adopting her”. In the Jan Balaz Case, the Supreme Court of India further affirmed the said status of not considering the child/children born to the Indian Surrogate for a German couple as Indian Citizen and hence refused to grant them Indian citizenship. However after talks with the German Government, India granted the children Exit Visa. These cases just opened the eyes of the Indian Government about how conflicting laws can leave a child stateless. Therefore in the new Act of 2010 the Government had included that the parents have to get a letter from the Embassy. Thus in July 2012 the new guidelines making the said letter compulsory were issued.
Though many requirements of the new guidelines issued in 2013 are in consonance with the Act of 2010, still there are conditions that appear in the new guidelines which have no justified reasons behind them. To begin with, the Act does not include anything stating that the Foreign Intended Parents must come on Medical Visa but the new guidelines proclaim this as a conditional factor before currently beginning any medical aspect of surrogacy in India. Also the Act allows any married, unmarried or single person to avail the ART procedure in India but the new guidelines issued by Ministry of Home Affairs has temporarily banned all newly married (up to 2 years of marriage) and all single and same sex couples to proceed with surrogacy. The disparity between the Act of 2010 and the new guidelines of 2013 is what is causing so much uproar and confusion in the surrogacy world.
In conclusion, Assisted Reproductive Technology is undoubtedly a win-win situation for everyone, namely the Government, the Doctor, the Surrogate and the Intended Parents but restrictions and guidelines in an effort to secure the future of the children born via surrogacy are an important aspect not to be ignored. For Intended Parents considering India as a destination, we recommend that they do thorough research about the legal situation to avoid getting misguided or trapped by promises that sound too good to be true. The new guidelines issued by shall remain in effect until another document by the Indian Government is issued. We do not know when that will happen. Nonetheless, the Indian Law for ART has always favored the child and has considered the welfare of child of utmost importance. With that in mind, we are confident that Indian government will soon take a positive step towards reworking the guidelines, thereby allowing many more Intended Parents to pursue surrogacy in India.