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Surrogacy: Still A Challenging Issue

A baby of a couple is like the beginning of all the things, wonder, hope and a dream of possibilities. However in the current situation many couples are deprived of giving birth to a new life due to different problems but science never allow us to lose hope.

Surrogacy is an effective method to provide baby to a couple who can't withstand the baby in their womb. In this process another women carries that baby in the womb for 9 months and give birth to it. It is the agreement between the intendment parents and the surrogate mother. It is basically a type of pregnancy where a woman carries and gives birth to a baby for another woman who is unable to do so due to any reasons. Off late this process has helped numerous people in experiencing parenthood. Now days many celebrities have taken the advantage of Surrogacy and welcomed their baby.

Moving further we need to know about modus operandi.

It involves the fusion of the eggs of a female with the sperm through medical procedure to make an embryo. These embryos are then implanted in the uterus of the surrogate mother who carries and eventually give birth to the baby. This method is sought by both men and women wish to have a baby via Surrogacy.

It is broadly divided into these categories:
  1. Traditional Surrogacy
  2. Gestation Surrogacy
  3. Altruistic Surrogacy
  4. Commercial Surrogacy

Traditional Surrogacy in the method the Surrogates mother get at artificially insemination with the sperm of the father the surrogate then carries and delivers the baby who then get raised by his / her legal parents. In traditional Surrogacy the surrogate mother is considered as biological mother of the baby as it was her egg that was fertilized. In some cases, parents also opt for a donor sperm that is used to fertilize the eggs.

Gestational Surrogacy is a process where one person who did not provide the egg used in a conception, carries a foetus through pregnancy and gives birth to a baby for another person or couple.

Altruistic Surrogacy is the situation where the surrogate receive for her 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).

Commercial Surrogacy is a form of Surrogacy in which a gestational carrier is paid to carry the child to maturity in her womb and is usually restored to by well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. It is sometimes referred to by the emotionally charged and potentially offensive terms "womb for rent", "outsourced pregnancies" or "baby farms".

Why is that a need for a Surrogacy act or regulatory law related to Surrogacy in India?

Surrogacy is often creating "stateless children" with disputed question of citizenship, nationality and parentage being recorded on official documentation. Unfortunate surrogate children have also been abandoned without any legal recourse. Besides, there is no mechanism or specialist judicial forum geared to handled complex issues arising from Surrogacy.

A regulatory environment through an appropriate legislation is much need to check malpractices and curb the unethical Surrogacy trade which haunts the scene in the backdrop of financial transaction changing hands. India has emerged as a hub for infertility treatment attracting people from the world over with its state of the art technology and competitive prices to treat infertility due to prevailing socio economic in equities under privileged women found an option to rent their wombs and thereby.

However, compensated Surrogacy is illegal in many countries while the USA allows for anyone to complete the Surrogacy process and allows for compensated Surrogacy it's become the top destination for international Surrogacy, sites today. Some countries popular for Surrogacy like US, India, Thailand, Ukraine and Russia however it is prohibited in many countries like France, Germany, Italy, etc.

Recently, a question arose in the Delhi high court why marital status age & gender where the criteria for being allowed to commission on not commission Surrogacy in India? The female petitioner said that she already had a child but the trauma of her first child birth experience and her need to juggle work with child care persuaded her that Surrogacy would be a better option for the second child. But under the provisions of the Surrogacy Act, she was denied chance for commissioning Surrogacy.

The Surrogacy (Regulation) Bill and ART (Regulation) Bill, 2014

The current Surrogacy regulation bill is Bill 2020 while it was adopted in India for the first time in year 2014. Union cabinet has approved the Surrogacy regulation bill. The amended bill is reformed version of the draft legislation which was passed by Lok Sabha in 2019. But its provision including that only a close relative of couple can be of Surrogate mother had muted criticism.

The Surrogacy regulation bill 2019 was introduced by the Ministry of Health and Family Welfare in Lok Sabha on July 2015. It was passed in Lok Sabha on 5th august 2019. This bill bans commercial Surrogacy and allowing altruistic Surrogacy while commercial Surrogacy is still prohibited because it includes sale and purchase of human embryo and gametes. Ethical Surrogacy to Indian married couple, Indian origin married couple, and Indian single women will be allowed on fulfilment certain conditions.

The bill allows a willing woman to be a surrogate mother and could benefit widows and for divorced women besides infertile Indian couples. It provides for the constitution of Surrogacy boards at the national as well as state level to ensure effective regulation. It seeks to allow ethical altruistic Surrogacy to the intending infertility Indian married couple between the ages of 25 to 50 years for female.

Only Indian parent couples can choose Surrogacy in the country. It makes it mandatory for the couples to obtain a certificate of essentiality and also a certificate of eligibility before going ahead with Surrogacy. It also provides that intending couple should not abandon the child from out of Surrogacy under any condition that a new born child shall be entitle to all rights and privileges that are available to a natural child. The bill also seeks to regulate, the functioning of Surrogacy clinics.

All Surrogacy clinics in the country need to be registered by the appropriate authority in order to undertake Surrogacy on its related procedures. The bill also provides various safeguard for surrogate mothers one of them is insurance coverage. It also specifies that no gender selection can be done when it comes to Surrogacy. The couple should not have a child of their own.

The law allows single women to resort to Surrogacy but she should, either be a widow or a divorced women between the age of 35 to 45 years single men are however not eligible. In Surrogacy only the medical experience and insurance coverage is provided by the couple to the surrogate mother during pregnancy. No other mandatory consideration will be permitted.

On September 30, 2015, A drafted Bill titled "The Assisted Reproductive Technology (Regulation) Bill, 2014" has been circulated in public domain for general public/ Stakeholders inviting suggestions/ comments within 45 days.

Under the definition clause of The Surrogacy regulation Bill, 2014 in section 2 states that "Assisted Reproductive Technology" means techniques that attempt to obtain a pregnancy by handling or manipulating the sperm or the eggs outside the human body, and transferring the gamete or the embryo into the reproductive tract.

Position of law under ART (Regulation) Bill, 2014

Under the ART (Regulation) Bill, 2014, ART, Surrogacy, gamete, and Surrogacy agreement have been defined as follow:
  • "Assisted Reproductive Technology" with its grammatical variations and cognate expressions, means all techniques that attempt to obtain a pregnancy by handling and manipulating the sperm and eggs outside the human body and transferring the embryo into the reproductive tract of the women.
  • "Surrogacy" means an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology in which neither of the gamete belongs to her or her husband with intention to carry it to term and hand over the child to the commissioning couple for whom she is acting as a surrogate.
  • "Gamete" means sperm and female eggs.
  • "Surrogacy Agreement" means a contract between the persons availing of ART and the surrogate mother.

The Bill describes the constitution of authorities to regulate ART. A 23 member National Advisory Board comprising of various experts is sought to be created with the functions to promote ART related issues. State boards are recommended in states and state registration Authorities are sought to be created for procedural purpose.

Proceedings before the National and State Boards are deemed to be Civil Court Proceedings for limited purposes and are sought to be treated as Judicial Proceedings even though the constitution of the National or State Advisory Board have no Judicial Officers, Judges or Designated Courts as constituents.

The Bill talks of procedures for registration and complaints in respect of Assisted Reproductive Technology Clinics. The bill also talks of the duties of such clinics and also talks of Sourcing, Storage, handling and record keeping for Gametes, Embryos and Surrogates. Some chapter relates to regulation or research on Embryos. Also discusses rights and duties of patients, donors, surrogates and children in extensor.

The Rights and Duties are well defined and determination of the status of the child is laid out in detail. The duty to take children born through Surrogacy outside of India to the country of the parties' origin or residence is spelt out.

The bill also talks of offences and penalties for contravening the provisions of the Act and also there are some miscellaneous section which talks of maintenance of records, power to search and seizure, power to make regulation and rules. The Act is stated to be in addition to and not in derogation with any other law for the time being in force.

Anomalies in the ART Regulation Bill, 2014

The Bill has neither designated, nor authorised nor created any Court or Judicial Forum to resolve issues which will require adjudication in problems arising out of Surrogacy, ART and Surrogacy Agreements. This is a very big lacuna in the Bill. There has to be a designated or a defined Court, as in the Hindu Marriage Act or the Guardian and Wards Act, which has to be vested with the authority in law to decide disputes arising under the proposed law.

The National and State Advisory Boards are only authorities who will promote ART, Surrogacy Arrangements and related procedures. The proceedings of these Boards have been deemed to be "Judicial Proceedings" before Civil Courts for limited purposes. There is no designated Court, Judicial Officer or Judge appointed, created or nominated for this purpose. Therefore, how far these Advisory Boards will be able to perform the "Judicial Proceedings" and which will be "deemed to be a Civil Court", remains to be seen.

It talks of complaints and duties and more ART related issues. It also talks of offences and penalties which carry serious consequences. But the question is who will adjudicate these and decide them to impose penalties. Who will determine these "offences?" Unless and until a Court is designated, created or nominated, all this will remain inconclusive, indecisive and incomplete.

There are already serious issues of determining parentage, nationality, and issuance of passport, grant of visas and problems of disputed parentage. There is no Forum defined, designated or created which will look into these problems or determine how they have to be decided or dealt with.

Baby Manji Yamada's case IT 2008 (11) SC 1501 is an eye opener. Thereafter, the Israeli gay couple's case is a follower in the sequel of problem areas. Embassies, foreign missions and High Commissions of different countries in India are looking at a Resolution on these issues by means of a law in the making.

But parentage, nationality, passport, visa and related issues remained undetermined in the law in making. There is already a conflict on adoption and Guardianship as non-Hindus cannot adopt in India. Therefore, would it not be better to make it mandatory to create a Court for adoption/Guardianship purposes before a child is removed from India to a foreign country. This will not only provide a system for uniform application to check malpractices but will also conclusively ascertain rights of parties in case of a dispute. Moreover, all Embassies, Foreign Missions and High Commissions will be guided by a proper procedure.

Another anomalous situation has been created by the new Medical Visa Regulations, 2012, which debar foreign single parents, gay couples and unmarried partners from coming to India on tourist visas for commissioning Surrogacy arrangements. There are other requirements also stipulated by the Ministry of Home Affairs in their letter of 09 July, 2012 which are not part of the ICMR Guidelines of 2005 and the ART Bill, 2010.

These inconsistencies need to be reconciled and a uniform policy needs to be underlined by the Government of India with regard to Surrogacy arrangements in India. More particularly, the rights of foreign single persons, gay couples and unmarried partners for entering into Surrogacy arrangements in India must be clearly stipulated as the ICMR Guidelines, 2005 and the ART Bill, 2010, are inconsistent and contradictory to the new medical visa guidelines, 2012. The ART Bill, 2014 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 permissible 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.

In the light of the above thoughts, after the above inconsistencies are suitably resolved it may be necessary to create a procedure for adoption, guardianship, determination of rights etc. to be mandatory through a nominated Court, designated Court or specified authority to be compulsorily followed in case of any inter-country Surrogacy arrangement.

Likewise, this Forum, Court, Authority can also be the Adjudicating authority to determine disputes decide offences and determine penalties under the Bill Without this, the proposed Act is not meaningful, is inconclusive and will only create more uncertainty leading to more disputes and inconsistent views.

Indian Law on Surrogacy

Surrogacy in India is legitimate for married couples/ unmarried couples/ single persons because no Indian law prohibits Surrogacy. To determine the legality of Surrogacy agreements, the Indian Contract Act would apply and thereafter the enforceability of any such agreement would be within the domain of section 9 of The Indian Code of Civil Procedure (CPC). Alternatively, the biological parent/s can also move an application under the Guardian and Wards Act for seeking an order of appointment for a declaration to be declared as the Guardian of the surrogate child.

In the absence of any law to govern Surrogacy, the 2005 ICMR Guidelines apply to all couples/ single persons. A child born through Surrogacy must be adopted by the genetic (biological parents). However, this may not be possible in case of Non-Hindu foreign parents who cannot adopt in India but can be appointed as guardians under the Guardians and Wards Act.

Under the ICMR Guidelines, there would be no bar to the use of ART by single women and a child born will have all the legal rights on the woman or man as the case may be. However, under the new medical visa regulations 2012, foreign single parents, gay couples and unmarried partners cannot come to India for Surrogacy arrangements; this seems to have been done in the ART Bill, 2014, which has been circulated amongst general public and stake holders on September 30, 2015 for comments and suggestions.

Under section 10 of the Indian Contract Act, 1872 all agreements are contracts, if they are made by free consent of parties competent to contract, are for a lawful consideration, are with a lawful object, and are not expressly declared to be void. Therefore, if any Surrogacy agreement of a married/ unmarried couple/ single parent satisfies these conditions, it is an enforceable contract. Thereafter, under section 9 of the Code of Civil Procedure, 1908 prescribing that the Courts may try all civil suits unless barred, it can be the subject of a civil suit before a Civil Court to establish all/ any issues relating the reliefs prayed for.

Other issues, which have now cropped up for opinion are as to whether a single parent or unmarried couple can be considered to be the custodial parent of a surrogate child. As of today, it may be stated that a single parent or unmarried couple can be considered to be the custodial parent by virtue of being the genetic or biological father of the surrogate child born out of a Surrogacy arrangement.

Japanese Baby Manji Yamada's case, JT 2008 (11) SC 150 and the Israeli gay couples case who fathered the child in India are clear examples to establish that this is possible. Under the ICMR Guidelines dealing with legitimacy of children born through ART (which were the basis of the claim in the Japanese baby's case in the Supreme Court), this claim can be made. However, only in a petition for guardianship under GWA and/ or in a suit for declaration in a Civil Court, the exclusive custodial rights can be adjudicated by a court of competent jurisdiction upon appreciation of evidence and considering all claims made in this regard.

What would be the status of divorced biological parents in respect of the custody of a surrogate child? Essentially, this is a question which will require determination in accordance with the Surrogacy agreement between the parties. There would be apparently no bar to either of the divorced parents claiming custody of a surrogate child if the other parent does not claim the same. However, if the custody is contested, it may require adjudication by a court of competent jurisdiction as per provisions of Civil Procedure Code.

Would biological parent/s be considered the legal parent of the children?

In answer to this question it can be stated that the biological parents would be considered to be the legal parents of the children by virtue of the Surrogacy agreement executed between the parties and the surrogate mother. Under the ICMR Guidelines dealing with legitimacy of the child born through ART, it is stated that "a child born through ART shall be presumed to be the legitimate child of the couple, born within wedlock, with consent of both the spouses, and with all the attendant rights of parentage, support and inheritance. A single man/ woman can have a child by ART through Surrogacy.

Even in the 2010 Draft Bill and Rules, a child born to a married couple, an unmarried couple, a single parent or a single man or woman shall be the legitimate child of the couple man or woman as the case may be. However, under the medical visa regulations 2012, foreign single parents, gay couples and unmarried partners cannot come to India for Surrogacy arrangements This seems to have been done in the 2014 version of the ART Bill, which however, cannot be commented upon since the 2014 version of the ART Bill is not in public domain and is said to be pending consideration before the Parliament.

That as per the Law Commission of India Report, in its conclusions and recommendations, it has been stated that in case the intended parent is single, he or she should be a donor to be able to have a child through Surrogacy. Clearly, in the views of the Law Commission, there is clear recommendation to the Government of India to permit Surrogacy for single parents.

Challenges to Restriction on Surrogacy by Single, Married and Unmarried Foreign Persons

In the face of the above position of fact and law enunciated by the ICMR Guidelines, ART Bill, 2014 and the medical visa guidelines, 2012, which reflect the policies, decisions and the mandate of the Ministry of Health and Family Welfare, who are competent and authorised to opine and decide such matters, there is now a proposal to restrict Surrogacy to infertile Indian couples only with the exception of OCIS, PIOS, NRIS and foreign citizens married to Indian nationals with a two year marriage.

Clearly, there was initially no bar on Surrogacy in India for foreign single persons or foreign unmarried couples till 2012, but now the proposed ART Bill, 2014, is a clear bar for foreign single persons and foreign unmarried couple to have the benefit of Surrogacy in India. This is despite the fact that Section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000, permits intra and inter country adoptions to a person irrespective of marital status subject to the approval by a competent court which may allow a child to be given in adoption.

Further, under the Guidelines Governing Adoption of Children, 2015, made under Section 41 (3) of the Juvenile Justice (Care and Protection of Children) Act, 2000, and notified by the Ministry of Women and Child Development, Government of India on July 17, 2015, in respect of orphan, abandoned or surrendered children, "any prospective adoptive parent, irrespective of his marital status", "single female" and "single male" shall be eligible to adopt a child both for intra and inter-country adoptions. There is thus no bar on single parent foreign adoptions subject to the exception that a single male person shall not be eligible to adopt a girl child.

Who are all allowed to make use of services of surrogate mother?

A certificate of infertility of either one or both of parents from District Medical Board definitely needed. In order of parentage custody of the Surrogate child passed by a magistrate court. Insurance covers for the surrogate mother. However, it does not allow Single women or men or gay couples to go for Surrogacy. In eligibility certificate mandates that the Couple fulfil the certain conditions. They should be Indian Citizens have been married to at least five years. The female must be between 23 to 50 years and male 26 to 55 years and they cannot have any surviving children (biological, adopted children on Surrogate) but this would not a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness.

As far as making is concerned, Surrogacy could be an option for those who eagerly need it as we all know there are always two sides of every coin hence, it all depends on the human activities or their nasty intentions. In India, we need strong laws for Surrogacy as there are many hurdles in the path of receiving a baby. The unscrupulous middle men involved themselves into the scene and some women also understood it as a means of earning money.

Many times the surrogate mother gets exploited by the agents and is paid less. Sometimes even the parent couple refuses to take the baby if they get some deformities. There some cases, has been recorded in India where parents refused to get the Baby.
In 2008 a Japanese couple began the process with a surrogate mother in Gujarat, but before the child was born they split with both of them refusing the child to takes the child.

Baby Manji Yamada V. Union of India

Dr. Ikufumi Yamada, an orthopaedic surgeon attached to a Tokyo hospital and his former wife Dr. Yuki Yamada came to India in 2007 and had chosen a surrogate mother in Anand, Gujarat, when Dr. Yuki Yamada could not conceive; the couple had chosen a surrogate mother in Ahmadabad to carry the child. They signed an arrangement of Surrogacy with Dr. Nayanaben Patel of Akansha IVF Centre, an Ahmadabad hospital on 22 November, 2007.

The Surrogacy agreement was entered into between the biological father and biological mother on one side and the surrogate mother on the other side. Pritiben Mehta, the wife of Brijeshbhai Mehta also from Ahmadabad, signed the agreement to serve as the surrogate mother. The fertilisation process of Yuki's egg with Ikufumi's sperm was completed in Tokyo and the Embryo was brought to Ahmadabad to be implanted in the surrogate mother.

The embryo transfer was done at Dr. Naynaben's Hospital on 22 November, 2007 in the presence of the Japanese Couple. After that they left for Tokyo and the child was born on 25th July, 2008 in Anand, Gujarat. However, a month before the child's birth, Yuki divorced her husband Ikufumi Yamada, and disowned the child.

On 3rd August, 2008, the child was moved to Arya Hospital in Jaipur following a law and order situation in Gujarat and she was provided with much needed care including being breastfeeding by a woman who had given birth to a baby girl as the surrogate mother in the Yamada case had also abandoned the baby Manji Yamada. A friend of Ikufumi Yamada, Mr. Kamal Vijayvargiya, a jeweller from Jaipur and settled in Tokyo was instrumental in getting a baby shifted to RA Hospital in Jaipur and also to get Ikufumi's mother to come down and take care of the child.

It transpired that the biological father Ikufumi had come to take custody but had to return to Japan before its visa expired. Custody was denied even the grandmother (Ikufumi's mother) after a Habeas Corpus petition was filed in the Jaipur bench of the Rajasthan high court by an NGO, Satya, who claimed that in the absence of Surrogacy laws in India, custody of child should not be given to the grandmother. To complicate things further before the Rajasthan high court, neither the biological father nor the surrogate mother had moved an application seeking custody of the child. The municipal council of the Anand in Gujarat had issued a birth certificate to the baby indicating the name of the genetic father.

Against the direction of the Rajasthan high court, the grandmother, Emiko Yamada filed a writ petition in the Supreme Court. It was contended in the supreme court that under the national guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005 (the ICMR, 2005 guidelines) the surrogate child of its genetic parents.

Legal Issues was legitimacy of child born through ART

In accordance with the pleading before the Supreme Court of India when the mater came first before it on 14th August, 2008, the court by an interim order allowed the grandmother to take care of the baby until the legal wrangles were sorted out by the court.

Ultimately on 29th September, 2008, the Supreme Court of India disposed of the writ petition filed by the grandmother with directions that if any grievance or complaint relating to the child; it can be vented in accordance with the Commission for Protection of Child Right Act, 2005. This was with regard to the allegation of the Jaipur NGO "Satya" that the child was amended as neither the natural parents nor the surrogate mother was taking care of the child.

In a relation to grievance of the grandmother to permission to travel to Japan including issuance of a passport to the child was under consideration of the central government and that no orders had been passed in that regard, the Supreme Court directed if a comprehensive application as required under the law is filled, it was to be disposed off expeditiously.

All preceding pending in the High Court relating to the matter which had been dealt with stood disposed off by the Supreme Court order of 29th September, 2008 following the directions of the Supreme Court, the regional passport office in the Jaipur on 17th October, 2008 issued an "identity certificate to the baby allowing her to travel to Japan to meet her father Ikufumi Yamada. However the baby's citizenship status still remained unclear. Reportedly the baby Manji Yamada and her Japanese grandmother Emkio Yamada, who had been looking after her, left India for Japan on 1st November, 2008.

Rather than the Indian Parliament catching up to make a law to regulate the unscrupulous Surrogacy trade, the Medical Visa Regulation have stepped in temporarily to do what the law ought to have done. But, they also infringe on the rights of single Forgein parents. Instead of permitting surrogate children to be born in India with risk of being stateless persons and being denied entry into Forgein countries where their commissioning parents resides, it is apt and necessary that such unethical practises leading to such disastrous situations must be pre-empted and prevented.

Decent instances of surrogate children from Germany, Japan and Israel born in India and leaving upon court intervention should well make legislators think of enacting a strict Surrogacy monitoring law. The Assisted Reproductive Technology (Regulation) Bill, 2014 itself has legal lacuna, lacks creation of a specialist legal authority for determination and adjudication of legal rights of the parties, in addition to falling in conflict with existing family laws.

These pitfalls should not become a graveyard for a law which is yet to be born. Surrogacy needs to be checked and regulated by a proper statutory law. The law makers must enact a law to put checks, control and regulatory steps in place through a legislative mechanism. Surrogacy should be controlled by proper legislative methods as existing in the case of inter-country adoptions.

Anomalies in matter of foreign parents and single foreign parent Surrogacy compared to foreign couples and single parent adoption by foreigners must be resolved to be made consistent and uniformed. The ART Bill, 2014 put in public domain to general public and stack holders need to be discussed threadbare. Hence the proper course would be a statutory law which looks at all prescriptive and protect the right of all parties without infringing on the claims of others. A fresh prescriptive is the call of the day for introspection.

Written By:
  1. Abhinav Gupta, 5th Year Law Students - Manav Rachna University, Faridabad
  2. Shobhna Bhushan, 5th Year Law Students - Manav Rachna University, Faridabad

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