Published on December 23, 2016
1. SURROGACY-‐ A Godsend by Man By Pranav Gupta
2. ABSTRACT ‘Surrogacy’, a boon for the needy which has its roots since ages, and its been in constant practice which privileges the infertile, unhappy and incomplete parents by rewarding a precious gift called ‘child’. In surrogacy, a woman bears a child for someone else. In the past, the typical surrogacy occurred when a wife could not bear children for her husband. The husband would then impregnate another woman who would bear the child. From the period of Mahabharata to this modern 21th century, Surrogacy plays its key role across the globe The most famous example of this occurs in the bible when Hagar serves as a surrogate for Abraham’s wife Sarah. This research is based on the secondary data which tries to provide the clear analysis done over the debate between use of this scientific progress on pure humanitarian grounds to misuse of the same for commercialization across the globe by including the judicial responses of various nations like USA, UK, Australian and India and the legal as well as the contractual problems arising in India according to ICA 1872. This paper includes the ethical and and moral issues arising in India against and for the surrogacy with a cast study of Jan balaz v. anand municipality. This empirical research tries to open a window for the effective legislation, applications and proper guidelines to handle the concept of surrogacy in a prudent way so that it would further continue to fertile the infertile wombs. PRESENCE OF SURROGACY IN ANCIENT TIMES The concept of surrogacy is not an outcome of this ultramodern world,It had its roots even in ancient times as well. The first ancient reference to infertility occurs in Genesis, when Jacob’s wife, like many of her Biblical peers, was unable to bear a child. After praying to God and begging her husband, she sends Jacob to her maid and adopts the resulting child as her own1 .In Jewish law, a childless couple falls within the category of personal suffering and there exists a clear obligation to assist them in every permissible way, as long as no one is harmed in the process2 . 1 Genesis 16, Genesis 30, Bible 2 Joseph Schenker, “Religious Perspective,” in Surrogate Motherhood, International Perspectives, Portland: Hart Publishing, 2003.p
3. In Hindu culture, surrogacy was known in the name of “NiyogiPratha” in Mahabharta, Gandhari the wife of king Dhritrashtra conceived, after which she delivered a mass, these cells were put in a nutrient medium and were grown in Vitro till full term. Sage Gautama produced two children from his own semen, a son Kripa and a daughter Kripi, who were both test tube babies, like wise sage Bhardwaj produced Drona , later to be the teacher of Pandavas and Kauravas3 . METHODS OF ASSISTED HUMAN REPRODUCTION A. In Vitro Fertilization In Vitro Fertilization (IVF) is a process in which hormonal stimulation of a woman's ovaries to produce multiple eggs takes place. The eggs are removed and placed into a glass dish. Sperm are then instituted to the eggs. When a sperm cell fertilizes the egg, the organism, called a pre-zygote (or pre-embryo), divides until it reaches the four-to-eight cell stage. After this division, several pre-zygotes are placed into the woman's uterus by cervical catheter. If this part of the procedure is successful, one or more embryos will attach themselves to the uterine wall and develop into a foetus or foetuses.4 B. Artificial Insemination Artificial insemination of humans exists in two forms. In homologous insemination, the sperm of an intended father is implanted into the uterus of an intended mother, for the purpose of fertilizing the ovum of the wife who will then, hopefully, bear a child as a result of the process. In heterologous insemination, also known as donor insemination, the sperm of a donor who is not the intended father (or a fertilized egg consisting of donor sperm), is implanted into the uterus of the woman intending to bear a child from the process.5 3 Concept of NiyogiPratha : Dr. P.V. Kane 4 RESOLVING DISPUTES ARISING OUT OF SURROGACY by: PankajSattawan&ParthaPratimMedhi 5 RESOLVING DISPUTES ARISING OUT OF SURROGACY by: PankajSattawan&ParthaPratimMedhi
4. C. Surrogacy The initial type of surrogacy arrangement was created when the ovum of the surrogate mother was artificially inseminated with the sperm of the intended father. The child resulting was genetically related to the intended father and the surrogate mother. Another form of traditional surrogacy occurs when the intended parents use the sperm of an anonymous donor to fertilize the ovum of the surrogate mother. In this arrangement, the surrogate mother has a genetic relationship with the new born, but neither of the intended parents do . In gestational surrogacy, the intended parents use the sperm of an anonymous donor and the ovum of an anonymous donor, use IVF to create pre-zygotes, and have the pre-zygotes artificially inseminated into the uterus of the surrogate. This method means that neither the intended parents nor the surrogate have any genetic relationship to the child. ETHICAL ISSUES IN INDIA According to the traditional surrogacy is similar to prostitution and is intrinsically immoral because it requires female reproductive labour. The very well-known American feminist Andrea Dworkin states that, “motherhood is becoming a new branch of female prostitution with the help of scientists who want access to the womb for experimentation and power.”6 According to her the only difference that remains in case of surrogacy is that the womb and the vagina are not being sought. But this kind of analogy between surrogacy and prostitution is certainly not sufficient enough to show that surrogacy is unethical and therefore passionate opinions of do not pose hindrance in the process of legalization surrogacy. The disagreement of liberal feminists is that surrogacy is an expansion of women’s reproductive labour and personal autonomy is legetimate. Therefore if females could contract freely to sell their productive labour for some lucrative amounts, then they should be at privilege to sell their reproductive services. 7 6 Dworkin A. Right-‐wing women: the politics of domesticated females. London: The Women's Press, (1983) 7 Jaggar’s Alison , Feminist Politics and Human Nature, (1983)
5. The involvement of third parties and various agencies in a surrogacy agreement for the sake of material benefits is yet another issue of concern. The very motive and focus of the generous purpose fails when we pass on the responsibility to certain money makers thereby reducing the subject matter of the agreement, i.e. the new born, into a commodity, the surrogate mothers into salesperson, henceforth and the whole arrangement into commerce. In the United Kingdom the Surrogacy Arrangements Act 1985 prohibits third parties such as commercial surrogacy agencies or brokers to benefit financially and intervene into the surrogacy arrangements and imposes criminal liabilities. It does not outlaw surrogacy per se and appears to favour altruistic arrangements, charitable agencies, and the direct payment of finances by the commissioning parents to the surrogate mother.8 Scholars working in post structuralism, cultural studies, science and technology studies, health sciences, and especially medical anthropology, began to focus directly on women’s agency in navigating the complex cultural terrains of infertility medicine.9 Since surrogacy is a very chronic issue, the society needs to figure out how it can handle the scenario. Some may suggest abolishing the reproductive technology as it involves number of risks to people, but on the other hand, some may insist on legalizing surrogacy. Infertile couple will not be able to have child if surrogacy is banned. Parenthood is a significant part of life, without it there would be a vacuum in one’s life. If the study of reproductive technology is abolished, it may be deleterious to society in the long run. Although the practice of surrogacy may be debatable, society may advantage from this technology is many other ways. What society is gaining from abolishing surrogacy is not worth what it would be losing. However, legislation needs to address legal guidance of surrogacy in order to confront continuous conflicts. THE RISE OF REPRODUCTIVE TOURISM India has become one of the most popular places all around the world for surrogacy being carried out. It provides a solutions to infertility and childlessness, the people involved in surrogacy business have transformed it into a lucrative industry which the Indian Confederation of Indian Industry had suggested to grow to an astonishing $2.3 billion annually, by the year 2002. The 8 Andrews, Lori. B. 1988. Surrogate motherhood: The challenge for feminists. In Surrogate motherhood: Politics and privacy, ed. Larry Gostlin. Bloomington, IN: Indiana University Press. 9 Id.
6. first reported gestational surrogacy in the world came in 1984 when a woman without a uterus got her eggs transferred to her friend’s uterus who gave birth to the child with whom she had no genetic relation.10 Thereafter, doctors began using IVF to fertilize the male sperm with donated eggs so that couples in which the wife was infertile could have a child.11 India’s first gestational surrogacy took place in 1994 in Chennai.12 Now, IVF and other fertility clinics have been set up in both rural and urban areas of almost every state in India.13 Surrogacy in India has become very popular as people for all-over the world come to India. India is a hub of surrogacy to 14 per cent of the world's estimated 80 million infertile couples. In 2003, India’s finance minister, Jaswant Singh called for India ‘to become a ,global health destination’ and encouraged measures to promote a medical tourism industry including improvements in airport infrastructure.14 Joint medical tourism campaigns and medical tour packages with hospitals to attract foreign patients are being run by Indian State Tourism Departments.15 In that reference, a new category of medical visa was introduced that allowed patients and family members to stay in the country for twelve months instead of the usual six months under a tourist visa.16 The CII (Confederation of Indian Industry) estimated that 150,000 medical tourists came to India in 2005 and it also estimated that the number of touristswould increase to 450,000 by 2008.17 One estimate also calculates India’s rapidly growing commercial 10 WH Utian et al., Successful Pregnancy After an In-‐vitro Fertilization-‐embryo Transfer from an Infertile Woman to a Surrogate, 313 NEW ENG. J. MED. 1351 (1985). 11 SHANLEY, Making babies, making families: what matters most in an age of reproductive technologies, surrogacy, adoption, and same-‐sex and unwed parents 103 at 83-‐84 (2002) 12 PadmanabhanGeeta, Hope in the Test Tube, THE HINDU, January 19, 2006 available at http://www.thehindu.com/thehindu/mp/2006/01/19/stories/200601190054020 0.htm. 13 Gardner Hannah, Long-‐distance babies spur outcry, THE NATIONAL, July 14, 2008 available at http://www.thenational.ae/article/20080714/PAGETHREE/567226060/1119/B USINESS (quoting a commissioning father as saying, “Westerners are fed up with draconian western rules. . . . India is a delight and so are their surrogates.”). 14 ChinaiRupa&Goswami Rahul, Medical Visas Mark Growth of Indian Medical Tourism, 85 BULL. OF WORLD HEALTH ORG. 161, June 2007, available at http://www.who.int/bulletin/volumes/85/3/07-‐010307/en/index.html. 15 Mulay Shree & Gibson Emily, Marketing of Assisted Human Reproduction and the Indian State, 49 development 84, 85 (2006). 16 However, many Indian consular offices overseas have not acted on the directives of the Ministry of External Affairs in arranging for this class of medical visa. Nevertheless, the Union Government is considering introducing “visas on arrival” beginning in airports in Delhi and Mumbai on an experimental basis in an effort to further promote medical tourism. See Medical Tourism: Centre Considering Visa on Arrival, HINDU BUSINESS LINE, Mar. 29, 2007, available at http://www.thehindubusinessline.com/2007/03/29/stories/2007032903031100. h tm 17 Chinai&Goswami,; India turning affordable, quality options for medical tourists, THE ECONOMIC TIMES, Nov. 18, 2008, available at
7. surrogacy industry is worth U.S. $445 million every year.18 Infertility clinics, healthcare providers, medical tourism companies, the broader tourism industry, the Indian government, and the women who provide surrogacy services all getprofited from this industry.19 A report by India Brand Equity Foundation and Ernst & Young estimated that outsourced health care would employ nearly two million people in India by the year 2008, an increase from the 20,000 employed previously.20 Couples in search of fertility treatment come not only from Western countries, but also from neighbouring countries such as Sri Lanka, Pakistan, Nepal, Bangladesh, Thailand, and Singapore.21 The reproductive segment of the Indian medical tourism market is valued at more than $450 million a year.22 INDIAN SURROGACY IS CHEAPER Lower cost involved in surrogacy as compared to other countries attracts foreigners to travel to India to get rid of their infertility issues. Commissioning parents can expect to pay $14,000 to $18,000 to a gestational surrogate in the United States.23 Total cost for contracting with a http://economictimes.indiatimes.com/Healthcare/India_turning_affordable_quality_option_for_medical_tourists/ articleshow/3729654.cms 18 “Surrogacy a $445 mn Business in India.” The Economic Times , August 25, 2008 19 Kari Points, “Commercial Surrogacy and Fertility Tourism in India.” 20 Lal Neeta, A Labour of Love, KHALEEJ TIMES, Feb. 29 2008, http://www.khaleejtimes.com/DisplayArticle.asp?xfile=data/weekend/2008/Feb ruary/weekend_February116.xml§ion=weekend&col= (reporting that Dr. Anoop Gupta, Medical Director, Delhi IVF and Fertility Research Centre, New Delhi claims he has delivered over 3,000 surrogate children since he opened his clinic in 1995). 21 Lal, Supra note 25 22 See Cheaper Overseas: Surrogate Mothers, In-‐Vitro Fertilization is $6,000 in India and $60,000 in the U.S., ABC NEWS, Sept. 28, 2007, available at http://abcnews.go.com/GMA/story?id=3664065&page=1 [hereinafter Cheaper Overseas] (600 IVF clinics in India bring more than $400 million a year into the local economy); Randeep Ramesh, British Couples Desperate for Children Travel to India in Search of Surrogates: Ethics under Scrutiny as Would-‐be parents are Enticed by Lower Costs and Relaxed Laws, GUARDIAN, Mar. 20, 2006, at 26, available at http://www.guardian.co.uk/world/2006/mar/20/health.topstories3 (noting that fertility market is worth about 250 million pounds per year). 23 . L. Watson Jennifer, Note, Growing a Baby for Sale or Merely Renting a Womb: Should Surrogate Mothers be Compensated for Their Services?, 6 WHITTIER J. CHILD & FAMILY ADVOC. 529, 551 (2007) (noting that surrogates should earn $33,372 if paid at minimum wage); see also McEwen, at 292 (noting that if a surrogateis paid $10,000, it works out to an hourly wage of $1.54).
8. surrogate mother in the United States varies from $59,000 to $80,000.24 India’s current costs are markedly lower than the American standards. In a nation where annual per capita income is $500, fees for surrogates are estimated to range anywhere from $2,500 to $7,000.25 The surrogates in India are paid in installments over a period of nine months.26 Many couples come through travel agencies that specialize in medical tourism. These agencies contract with infertility clinics in India and organize the couple's trip for a fee. Thus, Indian costs required for surrogacy is much cheaper than that of United States or anyother country. It is very obvious that surrogacy is very affordable and more advantageous in India. The success rate of surrogacy in 2008 LEGAL ASPECTS OF SURROGACY 24 Jamie D. Brooks, Biopolitical Times, Oprah on Renting Wombs in India: “It‟s Beautiful” Oct. 11, 2007, http://www.biopoliticaltimes.org/article.php?id=3713 ($70,000); Mike Celizic, TODAYShow.com, More and More Couples Finding Surrogates in India February 20, 2008, http://www.msnbc.msn.com/id/23252624/($80,000 in U.S. for surrogacy). 25 Haworth Abigail, Surrogate Mothers: Womb for Rent, MARIE CLAIRE, http://www.marieclaire.com/world/articles/surrogate-‐mothers-‐india (last visited Oct. 31, 2008) (Indian surrogates are paid between $5,000 to $7,000, the equivalent of upwards of 10 years‟ salary for rural Indians); see also The Feminist eZine, Is Paying the Poor to Have Children Morally Wrong?, http://www.feministezine.com/feminist/international/Wombs-‐for-‐Rent.html (last visited Oct. 21, 2008) (claiming that Brahman surrogates can garner more in fees than those in lower castes);Surrogate Mothers Lined Up in Gujarat, THE HINDU, Mar.2, 2006, available at http://www.thehindu.com/2006/03/02/stories/2006030201872400.htm (surrogates get paid between 1 and 2 lakhs); Celizic „Wombs for Rent‟ Grows in India (Marketplace radio broadcast Dec. 27, 2007), http://marketplace.publicradio.org/display/web/2007/12/27/surrogate_mothers/($6,000 to $10,000); 26 Insight: Outsourcing to Indian Surrogate Mothers, CNN television broadcast ,Oct. 17, 2006, available at http://transcripts.cnn.com/TRANSCRIPTS/0610/17/i_ins.01.html.
9. Surrogacy is the conflicting issue in the primary unit of a society i.e. a family, so allowing or restraining surrogacy without any proper reason would be irrational.Jurisprudentially, Roscoe Pound has expressed the need for a law in terms of claims or wants or desires which men assert de facto and about which the law must do something if organized societies are to endure.27 So, individual interest must be protected for social good and there is a need of law to protect such interest. Surrogacy involves the concept of demand and supply which requires a womb that can be rented for the people who need one and are ready to pay to get a child. The contractual activities are done under ICA 1872 (Indian contract act) which states that all agreements are contracts if they are made by the free consent28 of parties competent to contract, for a lawful consideration  and with a lawful object29 . The real issue comes in surrogacy when it is to be decided that, Is it against the public policy and if the consideration or money is involved under sec 23 of ICA 1872. RIGHT TO REPRODUCTION • Article 16(1) of the Universal Declaration of Human Rights 1948 says, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and start a family”. • The Judiciary in India has recognized the reproductive right of humans as a basic right. Vide B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as an aspect of his “right to privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma, which characterised the right to reproduce as “one of the basic civil rights of man”. • In Javed v. State of Haryana, though the Supreme Court upheld the two living children norm to debar a person from contesting a Panchayati Raj election it abstain from stating that the right to procreation is not a basic human right. Now, if reproductive right gets 27 . Roscoe Pound, Jurisprudence (Law Book Exchange Ltd., New Jersey, vol. III, 1959) p.15. 28 Sec 14, The Indian Contract Act, 1872 29 Sec 23, Id.
10. constitutional umbrella, surrogacy which allows an infertile couple to exercise that right also gets the same constitutional protection. SURROGACY AND PERSONAL LAWS Article 25th of Indian constitution empowers every religion to have its own belief. According to Hindu Maintenance act 1956, an adoption system is quite cumbersome and surrogacy lacks any tedious laws, so it prefers surrogacy over adoption. Also, • It is assumed that the lack of blood relation with the parents leads to weak emotional bond between the parent & child in adoption. • A surrogacy arrangement can be seen as a boon that offers a unique solution to the problem of infertility in Hindu couples and allows them to have a child who is genetically theirs and can relieve them of their religious debts. • Islamic law encourages attempts to cure infertility, but only to the extent that IVF technologies involve the husband and wife. Surrogacy is generally not allowed in Islam because it is akin to adultery (zina) since the surrogate is carrying the fertilized egg of someone who is not her legal husband. • In Jewish law, a childless couple falls within the category of personal suffering and there exists a clear obligation to assist them in every permissible way, as long as no one is harmed in the process. PARTIES TO SURROGACY The Commissioning Parents The commissioning parents—those who initiate the surrogacyand are the intended parents—face many issues that should beaddressed in any attempt to regulate commercial surrogacy. Among these are the causes requiring a surrogacy, whether thesurrogate will abort, and whether surrogacy is preferable to otherreproductive options.
11. The Surrogates Surrogates, who carry a fetus to term before relinquishing the resulting child, face vastly Different issues from the commissioningparents. Often, their role in the surrogacy raises concerns, whichheighten when economic inequities are involved. This problem isillustrated by the situation in India, where women are typicallypressured into the socially unacceptable job of surrogacy by theireconomic conditions, and sometimes, by their own families’desperation for income. The Children Children are perhaps the most important, but overlooked,aspect of commercial surrogacy. There are, in fact, two groups ofchildren that are impacted by international commercial surrogacy: (1) the children resulting from commissioned surrogacies, and, lessobviously, (2) the existing children awaiting adoption all across theworld30 . Although the consequences of commercial surrogacy forthese two groups of children are very different, both groups arenotably affected by the expansion of surrogacy. Commissioned Children The first, and most obvious, group of children impacted bysurrogacy is the group resulting from it: commissioned children.The concerns related to them include the physical and mentalconsequences of being born of a surrogate, as well as the aftermathof a potential family breakup and the approach of the courts to theproblems attendant to commercial surrogacy. Adoption Candidates When speaking of international surrogacy, it is difficult not toconsider its impact on adoption, both domestic and international.The institutions of surrogacy and adoption, in fact, have a 30 There may also be a third group of impacted children: the surrogates’children, who, for example, may develop a fear of being given away as well.This group is beyond the scope of this Article, but, for further background onthis category of children, see Katherine B. Lieber, Note, Selling the Womb:Can the Feminist Critique of Surrogacy Be Answered?, 68 IND. L.J. 205, 217(1992) (stating that, while this fear may be unfounded, children often areextremely insecure and seeing their mother give away a newborn may causethem to fear being given away as well); Shari O’Brien, CommercialConceptions: A Breeding Ground for Surrogacy, 65 N.C. L. REV. 127, 144 (1986) (explaining that a surrogate’s existing children may, without being toldthe truth of what was going on, be fearful that they or a sibling may be givenaway).
12. symbiotic relationship because couples seeking to expand theirfamilies alternatively can parent only a limited number ofchildren, who may either result from adoption or from assistedreproductive techniques31 . The effect of this symbioticrelationship is two-fold: (1) surrogacy may absorb resources thatwould otherwise be devoted to adoption, but, on the other hand, (2) surrogacy provides competition that might make adoption moreeffective and efficient. 228th Report- A new draft Surrogacy Bill The law commission of india submitted its 228th report with 50 clauses under 9 chapters on “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As Rights and Obligations of Parties to a Surrogacy.” The followings are the observations of the commission: • Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms including consent in writing. The agreement will be treated at par with the Indian Contract Act, 1860 and other laws applicable to the agreement. However, such an arrangement should not be made for commercial purpose. • The Bill provides that a foreigner or foreign couple not resident in India or a non-resident Indian individual or couple, seeking surrogacy in India, shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after pregnancy till the child is delivered to the foreigner or foreign couple or the local guardian. It is further provided that the commissioning parents or parent shall be legally bound to accept the custody of the child irrespective of any abnormality that the child may have, and the refusal to do so shall constitute an offence. A surrogate mother shall relinquish all parental rights over the child. The birth certificate in respect of a baby born through surrogacy shall bear the name(s) of genetic parents/parent of the baby.32 31 through assisted reproduction, 6,000 of whom were created through the use of‘donated’ eggs and 600 of whom were carried by surrogates. In 2003,Americans adopted 21,616 children through international adoptions and gavebirth to thousands of babies using commercially Purchased sperm.” Krawiec,supranote 2, at 205. 32 A 228th Report of Government of India,” need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy” Para 2.3, pg 17. (August 2009)
13. • In the event of death of the legal parents, or divorce between them, the surrogacy arrangement should provide for the financial support of the child. • Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parents • Right of privacy of the donor as well as surrogate mother should be protected • Surrogacy that prefers sex- selective should be banned. • A woman serving as a surrogate must be between the ages of 21 and 45 and may not serve as a surrogate for more than three live births. THE ASSISTED REPRODUCTIVE TECHNOLOGIES (REGULATION ) BILL 2010 – A BRIEF ANALYSIS Commercial surrogacy though banned in several developed countries may soon become a reality in India through a bill to legalisecommercial surrogacy which has been drafted by the Indian Council of Medical Research in short ICMR8 . The bill is called as the Assisted Reproductive Technology ( Regulation ) bill and Rules 2010 ,Some novel measures that have been suggested in this Act are as follows: • SURROGACY AGREEMENT: The bill provides an agreement between surrogate mother , commissioning parents and the ART clinic which makes the smooth running of the surrogacy contract. According to section 20 of the bill and the rule 15 of THE ASSISTED REPRODUCTIVE REGULATION RULES 2010 the ART surrogacy arrangement will continue to be governed by contract amongst parties ,which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination , reimbursement of all reasonable expenses for carrying child to full term , willingness to hand over the child born to the commissioning parents . Form J is also mentioned for the agreement for surrogacy. • RIGHTS OF THE SURROGATE: The draft bill ensures rights to the surrogate mother according to section 34 of the ART bill as under10:
14. Right to physical integrity and bodily autonomy i.e. she cannot be forced to abort the foetus, go through foetal reduction or made to follow a certain diet. Right of no sex selection , no antenatal testing even with the consent of the surrogate. Right to make decisions concerning reproduction free of discrimination, coercion and violence. Right to receive monetary compensation from the commissioning couple or individual , as the case may be , for agreeing to act as surrogate . Right to seek all medical treatments and procedures for her health and in relation to the concerned child . Right to receive certificate by the person or persons who have availed her services, stating that she has acted as a surrogate for them Right not to disclose the confidential and private information about the surrogacy to anyone other than the central database of Indian Council of Medical Research , except by an order of competent court . Right to have local guardian being appointed by the commissioning foreigner couple seeking surrogacy in India for taking care of the surrogate during and after the pregnancy. • RIGHTS AND WELFARE OF THE CHILD Clause 35 (1) of the draft ART bill states that “ A child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple , having been born in wedlock , with the consent of both the spouses , and shall have identical legal rights as a legitimate child born through sexual intercourse” . The draft bill makes provision for the child to seek information about donors and surrogates on attaining 18 years of age . Clause 36 (1) of the ART bill 2010 states that “ A child may upon reaching the age of 18 , apply for any information excluding personal identification, relating to his / her genetic parents or surrogate mother”. • SEX ELIGIBILITY: The bill is liberal by using the phrase married or unmarried couple as eligible for ART’s , it does not include within its ambit people who are not
15. heterosexual and their accessibility to ART’s . The bill clearly defines “ unmarried couple” as a man and a woman , both of marriageable age , living together with mutual consent but without getting married (clause 2 dd of the ART bill). • BIRTH CERTIFICATE: According to clause 35 (7 ) and 34 (10) of the ART bill , the birth certificate of a child born through the use of assisted reproductive technology shall contain the name or names of the parent or parents, as the case may be, who sought such use i.e. commissioning couple. This implies that the name of the couple seeking ART or commissioning the surrogacy will be written on the birth certificate. Thus the birth certificates bears the name of the genetic / gestational surrogate . • CERTIFICATES BY FOREIGN COUPLE : According to section 34 (19) foreign couple seeking surrogacy in India have to submit two certificates i.e. first an letter from the embassy of their country in India or from the foreign ministry of their country that their country permits surrogacy and second that the child born through surrogacy in India will be permitted entry in their country as their biological child so that the child can get the citizenship of commissioning couple . LEGAL ASPECT OF SURROGACY IN INDIA Commercial surrogacy has been legal in India since 2002. India is emerging as a leader in international surrogacy. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing,but in the hiring and retention of Indian females as surrogates. Clinics charge patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate's fee, and delivery of the baby at a hospital Surrogacy in India is much simpler and cost effective than anywhere else in the world. There is an increasing amount of Intended Parents who choose India as their surrogacy destination. The main reason for this increase is the less costlier surrogacy and better flexible laws. In 2008, the Supreme Court of India has held that commercial surrogacy is permitted in India. That has again increased the international confidence in going in for surrogacy in India.
16. POSITION OF ARTIFICIAL REPRODUCTIVE TECHNIQUE IN GLOBAL WORLD (UK, USA AND AUSTRALIAN LEGAL SYSTEM) In England, based on the recommendations of ‘Warnock Committee,’ the Surrogacy Arrangements Act, 1985 was brought in to force. Under this Act surrogacy arrangements are made legal and the Act prohibits advertising and other aspects of commercial surrogacy. The Act prohibits giving or taking of money or other benefit (other than expenses reasonably incurred) in consideration of the making of the order or handing over of the child. In the United States of America also, commercial surrogacy seems prohibited in many states. In the famous Baby M case, the New Jersey Supreme Court, though allowed custody to commissioning parents in the “best interest of the child”, came to the conclusion that surrogacy contract is antagonistic to public policy. It must be noted that in the US, surrogacy laws are different in different states. In USA, Gestational Surrogacy Act, 2004, deals with this aspect. The purpose of this Act is to lay down consistent standards and procedural safeguards for the protection of all parties involved in a gestational surrogacy contract in this State and to confirm the legal status of the new born as a result of these contracts. These standards and safeguards are meant to facilitate the use of this type of reproductive contract in accord with the public policy of the State. Later Johnson v. Calvert, the American judiciary took a libertarian approach. Through this case the Supreme Court extended constitutional umbrella to surrogacy controls and gave them a legal validity. The court held that the surrogacy contract involved free, informed and rational choice by a woman to use her body. InSurrogacy Parenting Associate v. Commonwealth of Kentucky,the court propounded the intension test for the determination of natural mother. In re Marriage of John A., the court held that even though the commissioning parents are not biologically related to the child, they are still her lawful parents given their initiating role as the intended parents in her conception and birth. Even after separation of married coulple who opted for artificial insemination, the husband would still continue to be the father of the of the offspring thus produced as held in another case ofPeople v. Sorensen. InLamaritata v. Lucasthe court held, a person who gives sperm for a woman to conceive a child by artificial insemination is not a parent. Thus, the sperm donor has no legal rights. As to the statutory response, different states of America have responded through legislation to the question of legalization of surrogacy. Some
17. states took a liberal approach and some totally shun their eyes towards the validity of surrogacy contracts making them completely illegal. Surrogacy legislation in New Hampshire requires judicial preauthorization of all surrogacy contracts subject to three conditions viz. informed consent by parties, completion of psychological counseling and evaluation, absence of unconscionable terms in the contract and orientation towards best interests of child. In Australia, Kirkman sisters’ case sparked much community and legal debate and soon states in Australia attempted to settle the legal complications in surrogacy. Now in Australia, commercial surrogacy is illegal, contracts in relation to surrogacy arrangement is unenforceable and any payment for soliciting a surrogacy arrangement is illegal. CASE STUDY - JAN BALAZ V. ANAND MUNICIPALITY33 The commissioning parents in this case are of German nationality that entered into a surrogacy contract with an Indian surrogate mother. The petitioner is the biological father but his wife is not in a position to conceive a child. After the twin babies were born to the surrogate mother the dispute which built up was regarding the citizenship of the babies and as to whose name would be mentioned in their birth certificates. The major issue in this case is the denial of Indian citizenship to the babies though their birth mother is an Indian. Moreover, Germany did not recognize surrogacy, and therefore for the purpose of obtaining VISA from the Consulate of U.K, it was essential that the children should have the passport as they were born in India and not in Germany. The Passport Authorities did not issue them the passports as per the need of petitioner who wanted to take the babies to Germany where he would submit applications in order to change the nationality of the babies to German. He contended that denial of passports was violative of Article 21 of Indian Constitution. The birth certificate mentioned the name of surrogate mother which is in contravention to the guidelines of ICMR, according to which the birth certificate should have the names of the commissioning parents of surrogacy. 33 Jan Balaz v Anand Municipality &Ors. , AIR 2010 Guj. 21. ( AIR is All India Reporter and Guj. is Gujarat High Court)
18. As per section 3 of the Citizenship Act 1955, both the babies are Indian citizen as they are born in India. So it is humbly submitted that they are entitled to enjoy all the rights of Indian citizen and the Passport Authority are hereby legally authorized to issue the passports to them failing to which may be regarded as violation of Article 21 of the Constitution. Since surrogacy is not prohibited in India, the twins were born in India to a surrogate mother who herself is an Indian national. And according to section 3 (1) (c) (ii) of Citizenship Act, 1955 a child is a citizen of India if one of whose parents is citizen of India. Also as per Birth and Death Registration Act 1969, one who conceives the child is regarded as legal mother or natural mother. The name of the surrogate mother was mentioned in the birth certificate by the Registrar under Birth and Death Registration Act 1969. One may argue that this may go against the ART Bill, 2010 according to which the birth certificate should possess the names of the commissioning parents. But, it is submitted that this Bill has not been legalised in India till now and thus it is not binding. Moreover, according to Black‟s Legal Dictionary the word „born‟ is an act of being delivered or expelled from mother‟s body whether or not placenta has been separated or cord cut. In the present case, the children were „born‟ from the body of surrogate mother. Hence, she should be the legal mother of the child. ADVANTAGES AND DISADVANTAGES OF SURROGACY: ADVANTAGES OF SURROGACY  For infertile woman who can't conceive, surrogacy creates an opportunity for her and her partner to parent a child who is their genetic offspring at least partially (if they use the father's sperm and the surrogate's egg) or wholly (if they ask the surrogate to carry an embryo created from the mother's egg and the father's sperm).  A Homosexual couple can also have their own child (such as the Israeli gay couple who got there baby through surrogacy) Yonatan and Omer Gher’s dream - to have a baby of their own - come true. Yonatan was the donor. The two returned to their home country Monday with their one-month-old son Evyatar.34 34 Available at: www.lawyersclubindia.com/articles/print_this_page.asp?article_id=3319
19.  Single parents can also have children. DISADVANTAGES OF SURROGACY  Complex and long journey is required to get the needed procedures for surrogacy.  Not all clinics support surrogacy so it may be difficult to find the right clinic.  Some surrogates face acute emotional and psychological issues over letting the baby go.  The couple and the surrogate may have difficulty making mutual agreement, such as antenatal tests and how to manage the pregnancy, labour and deliver.  Chances of exploitation of females is more in surrogacy.  In case of divorce of intended parents before the completion of surrogacy the custody of child remains question mark. (Baby Manji Yamada Vs. Union of India (UOI) and Anr) now the custody is with Emiko yamada her grant mother).35  Complex situation arises when both the commissioning parents refuse to take custody of the child specifically when the child is born abnormal. COUNTRIES WHICH ARE AGAINST SURROGACY In the states of Arizona, New Jersey, and Michigan all forms of surrogacy are prohibited. Kentucky,Nebraska, and Washington only surrogacy, based on commerce is prohibited. In England, the law lets the surrogate mother receive some kind of reimbursement for genuine medical and pregnancy related expenses. Surrogacy Contracts Act provides that introducing, or agreeing to introduce; inducing; arranging or negotiating prospective parties to a surrogacy contract is an offence. Commercial surrogacy is prohibited in European countries such as France, 35 Available at: www.lawyersclubindia.com/articles/print_this_page.asp?article_id=3319
20. Greece, Denmark and the Netherlands. Germany, Sweden, Norway and Italy prohibit every kind of surrogacy arrangements.36 SUGESSTION • The commissioning parents should accept the custody of the commissioning child by the surrogate regardless of the deformity, or any physical problem to the child. If they refuse to do so then it should be considered as an offence. • Surrogate agreements should be considered under ICA 1872 and A surrogacy contract should be enforceable only if is approved by the court with an especial committee for it. • Surrogate mother should be a married woman with experience of pregnancy an she should be released from all the legal acts after the birth of the child and the birth certificate should only include the name of the commissioning parents. • If the commissioning couple separates or gets divorced after going for surrogacy but before the child is born, then also the child shall be considered to be the legitimate child of the couple. • Surrogacy should be last option for the couples and its application should be approved only upon the medical evaluation. CONCLUSION Through the thorough analysis of the concept like legislation, application, national and international aspects, ethical and social issues , role of science and technology, judicial responses with regards of surrogacy, it is clear that Surrogacy turned out to be a boon for the needy. India has also emerged as a hub for the surrogacy and it has provided a stage for the lost and depressed couple a hope for a complete family which is a final and ultimate step towards a happy world. Hence, the concept of Surrogacy should be dealt with the proper legislations and guidelines so that this Godsend could be regulated in more efficient and better way. 36 Available at: www.lawyersclubindia.com/articles/print_this_page.asp?article_id=3319