LAW RESOURCE INDIA

Legalising surrogacy — Boon or bane?

Posted in UNCATEGORIZED by NNLRJ INDIA on July 14, 2010

An expert committee has got ready the Draft Bill for legalising surrogacy. After the Union Cabinet’s consideration, The Assisted Reproductive Technology (Regulation) Bill, 2010, will be tabled in the monsoon session of Parliament. Is the proposed legislation giving legal rights to parents and others to have surrogate babies path-breaking? A close look

By Anil Malhotra in The Tribune

THE Union Cabinet will shortly examine the draft Assisted Reproductive Technology (Regulation) Bill, 2010, and then table it in Parliament.

Floated earlier in 2008, it envisages a national framework for the regulation and supervision of Assisted Reproductive Technology (ART). It legalises commercial surrogacy for single persons, married or unmarried couples. When it becomes law, the surrogate mother will have to enter into a legally enforceable surrogacy agreement.

It states that foreigners or NRIs coming to India to rent a womb will have to submit documentation confirming that their country of residence recognises surrogacy as legal and that it will give citizenship to the child born through the surrogacy agreement from an Indian mother. This, perhaps, is in view of the two-year legal battle of the surrogate sons, Nikolas and Leonard, born to the German couple Jan Balaz and Susan Lohlad. The two kids, born to an Indian surrogate mother in January 2008, were rendered stateless with neither German or Indian citizenship. Subsequently, the Supreme Court got them exit permits in May 2010.

Similarly, after being stranded in Mumbai, a gay Israeli couple was granted Israeli passports only after a DNA paternity established in May 2010 that gay Dan Goldberg was the father of Itai and Liron born to a surrogate mother in Mumbai. This followed a debate in Knesset (Israeli Parliament) and the Jerusalem District Court ruled in appeal that it was in the children’s best interest to hold the DNA test to establish their paternity.

Before Parliament passes the Bill, it must be debated thoroughly. Ethically, should women be paid for being surrogates? Can the rights of women and children be bartered? If the arrangements fall foul, will it amount to adultery? Is the Bill a compromise in surpassing complicated Indian adoption procedures?

Is the new law compromising with reality in legitimising existing surrogacy rackets? Is India promoting “reproductive tourism”? Does the law protect the surrogate mother? Should India take the lead in adapting a new law not fostered in most countries?

Legalising surrogacy — Boon or bane?

The Draft Bill lacks the creation of a specialist legal authority for adjudication and determination of legal rights of parties by a judicial verdict and falls in conflict with the existing laws. These pitfalls need to be examined closely before enacting the legislation.

In the UK, no contract or surrogacy agreement is legally binding. In most states in the US, compensated surrogacy arrangements are either illegal or unenforceable. In some states in Australia, arranging commercial surrogacy is a criminal offence and any surrogacy agreement giving custody to others is void. In Canada and New Zealand, commercial surrogacy has been illegal since 2004, although altruistic surrogacy is allowed. In France, Germany and Italy, surrogacy, whether commercial or not, is unlawful.

What, then, prompts India to plan a legislation to protect the genetic parents, surrogate mother and the child? India’s surrogacy boom began in January 2004 with a grandmother delivering her daughter’s twins. The success spawned a virtual cottage industry in Gujarat. Today, India boasts of being the first to legalise commercial surrogacy soon to legitimise both intra-and inter-country surrogacy.

The would-be parents from the Indian diaspora in the US, the UK and Canada and foreigners from Malaysia, the UAE, Afghanistan, Indonesia, Uzbekistan, Pakistan besides Nepal are descending on sperm banks and In-vitro Fertilisation (IVF) centres in India looking for South Asian genetic traits of perfect sperm donors.

Moreover, renting wombs has become an easy and cheap option in India. Relatively low cost of medical services, easy availability of surrogate wombs, abundant choices of donors with similar racial attributes and the lack of any law to regulate these practices is attracting both foreigners and NRIs to sperm banks and surrogate mothers.

Surreptitiously, India has become a booming centre of a fertility market with its “reproductive tourism” industry reportedly estimated at Rs 25,000 crore today. Clinically called ART, it has been in vogue in India since 1978 and today an estimated 200,000 clinics across the country offer artificial insemination, IVF and surrogacy.

In Baby Manji Yamada’s case (2008), the Supreme Court observed that “commercial surrogacy reaching industry proportions is sometimes referred to by the emotionally charged and potentially offensive terms wombs for rent, outsourced pregnancies or baby farms”. It is presumably considered legitimate because no Indian law prohibits surrogacy. But then, as a retort, no law permits surrogacy either. Surely, the proposed law will usher in a new rent-a-womb law as India is set to be the only one to legalise commercial surrogacy.

In the absence of any law to govern surrogacy, the Indian Council of Medical Research guidelines (2005) for accreditation, supervision and regulation of ART clinics in India are often violated. Exploitation, extortion and ethical abuses in surrogacy trafficking are rampant and surrogate mothers are misused with impunity.

Surrogacy in the UK, the US and Australia costs more than US $ 50,000 whereas advertisements on websites in India give varying costs in the range of US $ 10,000 and offer egg donors and surrogate mothers. It is a free trading market, flourishing and thriving in the business of babies.

The writer is Advocate, the Supreme Court of India and the Punjab and Haryana High Court

A step in the right direction

THE Draft Assisted Reproductive Technology (Regulation) Bill, 2010, is a step in the right direction. It will help regulate the functioning of the in-vitro fertilisation (IVF) centres and make the entire process of surrogacy legal. The setting up of ART banks will ensure quality check and accountability.

Everything would be in black and white and legal redressal for any failures will be possible. At present, there is no accountability of the IVF centres as they can deny everything as legally they don’t even exist.

However, with things becoming easier and legal, people might become overenthusiastic and have a baby for which they are not emotionally prepared on a long-term basis. Neglect and abuse of these children is an issue of concern and a mechanism should be put in place for monitoring their progress by social agencies.

— Dr Anju Huria, Gynaecologist, Chandigarh

Repugnant to human dignity

It is inconsistent with human dignity that a woman should use her uterus for financial profit and treat it as an incubator for someone else’s child. These words of the Warnock Committee reporting to the British Government in 1984 remain unanswerable even today. The proposed Bill, however, legalises not only surrogacy per se but even commercial surrogacy or surrogacy “for monetary compensation” or “on mutually agreed financial terms”.

Whatever the intentions, its inevitable consequence would be the creation of a market specialising in the sale and purchase of babies, or as the Court of Appeal in England put it in 1985, in “a kind of baby-farming operation of a wholly distasteful and lamentable kind”. The only proper way to pursue the Bill would be to abandon it.

— Anupam Gupta, Senior Advocate, Punjab and Haryana High Court

Negative impact on society

For infertile couples wanting to have children, the ART would make things easier as regulations will be there for the entire process. But if it encourages single parenthood, it will not be in the interest of the children born out of such an arrangement and thus will have a negative impact on society.

Family togetherness, in traditional terms of having a father, mother and brother/sister, is important for the upbringing of any child and the same cannot be provided by gay or lesbian couples or individuals. Children born to such couples or individuals may lack confidence. It will definitely affect the children in the long run.

— Dr B.S. Chavan, Head, Psychiatry Department, Govt Medical College Hospital, Sector 32, Chandigarh

Don’t keep doctors out of the loop

Those who would run ART banks will not be professional doctors and hence won’t be able to make the right decision. They will not have clinical knowledge about the quality of semen or oocytes.Doctors alone can run the IVF clinics. Keeping them out of the loop will not be in the interest of either the surrogate mothers or those hiring them.

— Dr Umesh N. Jindal, Jindal IVF and Sant Memorial Nursing Home, Sector 20, Chandigarh

Rent a womb: The proposed legislation

  1. Renting of womb is legal in India but there is no law at present to regulate surrogacy. If Parliament passes the Assisted Reproductive Technology (ART) Bill, renting a womb by Indian and foreign couples looking for surrogate mothers is expected to become hassle-free.
  2. The Draft Bill gives gays, singles the legal right to have surrogate babies. It defines a ‘couple’ as two persons living together and having a sexual relationship. After the Delhi High Court verdict on homosexuality, even two gay men can claim to be a couple.
  3. A woman in the age-group of 21-35 can become a surrogate mother. She will be allowed five live births, including her own children. She will not be allowed to donate oocytes more than six times in her life.
  4. In case of a single man or woman, the baby will be his/her legitimate child.
  5. A child born to an unmarried couple using a surrogate mother and with the consent of both parties shall be the legitimate child of both of them.
  6. During the gestation period, the couple will bear the surrogate’s expenses and give monetary help to her. The couple may enter into an agreement with the surrogate.
  7. Foreign couples must submit two certificates — one on their country’s surrogacy policy and the other stating that the child born to the surrogate mother will get their country’s citizenship.
  8. Foreign couples have to nominate a local guardian who will take care of the surrogate during gestation.
  9. ART banks, accredited by the government, will maintain a database of prospective surrogates as well as storing semen and eggs and details of the donor.
  10. State boards will give accreditation to ART banks — private and government. The board will have a registration authority which, in turn, will maintain a list of all In-vitro Fertilisation (IVF) centres and monitor their functioning.
  11. The Law Commission of India (2009) described ART industry as a “Rs 25,000-crore pot of gold”. It recommended only altruistic surrogacy arrangements and not commercial ones. But the Draft Bill legalises commercial surrogacy as well.

http://www.tribuneindia.com/2010/20100714/edit.htm#6

9 Responses

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  1. Dr Gobind Lal (Kashyap) said, on July 15, 2010 at 16:45

    In reference to the above captioned topic, I would like to remind not only the government of India but also the whole world emphatically suggesting,inter-alia, ban on surrogacy or the involvement of any third person in any manner whatsoever to beget ‘Test Tube Baby (TTB)’ in India by means of In-Vitro Fertilisation(IVF) also known as Assisted Reproductive Technology (ART) and so also on single person, be that a man or woman in the whole world to have TTB by the said method; being the gist of my thesis inconsideration of which I have been awarded the Degree of Philosophy (Ph.D) in Law by ” GAUHATI UNIVERSITY” in April 1999 in persuant to my five years research beginning from April 1992 till 31st March 1997, when I submitted my thesis to the authorities of the said university; on the topic ” LEGAL IMPLICATIONS AND STATUS OF TEST TUBE BABY IN A MODERN WELFARE STATE WITH SPECIAL REFERENCE TO INDIA”.

    Logically concluded with cogent reasons and so suggested for India in my thesis is the sequel of my hard endeavour in the backdrop of Indian traditions, old age customs of various religions,tribes, clans, caste and creeds and so also the existing laws in India with reference to report submitted by Warnock Committee to the British Government in 1984, which was the first document in this world on the process of legalising TTB by involvement of third person because first TTB was born in England in 1978 and by 1983 there was mashroom growth in England of varies agencies of advertising for commercial surrogacy arrangements; in pursuant to which enactment relating to surogacy in 1985 was passed making penal provision for comercialising surrogacy. The problem relating to surrogacy compelled the various countries either to ban or restrict surrogacy. In India it would not only create legal tangles in the enforcement of rights relating to inheritance, succession and citizenship but also maintenance of TTB and the matrimonial ties apprehending dual society in India one relating to natural born babies (NBBs) and other to TTBs leading to conflicts and chaos; in as much as in India hardly any of the parents of the NNBs would prefer to marry their children to the TTBs obtained with the involvement of third person whose biological origin is unknown. The right choice is to provide incentive to such infertile couples to go for adoption and avoid multifarious legal problems instead of legalising surrogacy and breeding exploitation and smuggling of not only the women beset with poverty but also the sperm, eggs and/or embryos. In this connection I would also like to draw kind attention of all concerns that in India numerous matrimonial cases relating to the maintenance and custody of children arising out of their legally wedded life are still pending and allowing surrogacy in India would further enhance the numbers of litigations apart from rendering the Indian govenrnment in the mid of tedious task of amending various enactments relating to inheritance, succession, citizenship, matrimonial laws and so also the constitution.

    I legally challenge and claim globally that “No single person has any right to obtain TTB by IVF/ART.” Because as per the cardinal principle of jurisprudence “One can not enforce one’s right by infringing any right of others”, but in the instant case the single person while precuring TTB by this method shall be infringing the right of TTB itself. The infringment of right of TTB is ‘to come in this world with both parents’, in as much as, from the very begining such single person shall be depriving such baby (TTB) of its one parent, the mother if the single person is a male and father in case the single person is female.

    The present move to clear the Assisted Reproductive Technology (Regulation) Bill 2010 with the provisions of allowing single person including gays and lesbians shall be thus fatal for Indian soceity apart from being opposed to above cardinal principle of jurisprudence.

    I have already obtained permission from the competant authorities of “Gauhati University” for publication of my above thesis on the subject refered here in above and it is in the process of publication and likely to be completed with in two to three months and shall be available for the general public at large for its analysis and onward comments on the present move of the Government of India.

  2. Swarn Panesar said, on July 18, 2010 at 19:11

    Please find enclosed article on surrogacy.

  3. Kumar said, on July 23, 2010 at 16:21

    Giving rights for the gays lesbains and single persons to have TTB is infringing the rights of the child to have a male and female parents.so it should not be done.
    In India ART clinics are just corrupt to say in simple words. Contrary to the belief crating a TTB is simple as the protocol has been established even a general practitioner can do it in his clinic.For the sake of moral and emotional implications they are not doing it.The doctors who don’t have moral problems do it.
    In Indian context banning surrogacy/commercial surrogacy is not practicable .If it is done the entire process just goes underground .Then the process becomes much exploitative.
    So it is important to distance the surrogates from ART centers.For this floating a womb bank is impracticable. Even if it is done under private partisanship it will give raise to corruption and lisecnce raj.
    To make the thing simple for IP s and surrogates to contact it is preferable if the govt. launches a web site under health ministry. Where the IP s and surrogates should register giving their address proof and other details once the registration is completed they can be given an identification number.This identification number can be used for further correspondence.In the same web site list of ART centers can be given. Once the IP s contact Surrogates they can they can fill in a form in form charting out the details of the contract like the terms of handing over the child monitory benefits etc just like a bank loan form.This form should be converted into PDF format and given a third number ( Form Number) Three copies of the form should be made and signed in front of a notary by both the parties.And should be attested by the notary.The parties concerned should take this form to the ART centers preferred by them.There the officials will be registering it along with the center code.Then a forth number is generated and the details of the surrogate and IP s will be checked against the details given earlier.If found correct the center should fill in the form specifying the treatment that will be given at the end center should fill in the results.
    The advantages are Parties can choose to remain anonymous or Known parties.
    Middle men are eliminated.
    All the details directly go to a central data bank.
    Monetary negotiations can be done at the click of a mouse.
    Both parties get pre structured and filled contract form thus eliminating the chance of fudging documents.

    IP s can state their preferences and monetary benefits they are willing to give and surrogates can state the terms on which they are willing to work and the monetary benefits they they aspire to get.
    From the site itself they can collect the data about the terms /monetary benefits the surrogates get and the IP s are willing to give along with cost of various ART treatments in various ART centers the statistics of Live ART births etc.
    As it it is web site everything can be done from the privacy of home or a web center.
    Various laws procedures risks involved etc can be given in the site most of the IP s defiantly read it thus eliminating the lack of knowledge before entering int to the procedure.

    So it is very much essential for the Govt. Launch A web site to pair Surrogates and IP s.The same site can have the list of egg and sperm doners. They too can be contacted anonymously.If registering and getting the computer generated Number compulsory for donations Even the Known doner donations can be allowed without any legal complications.

  4. Rajesh said, on August 8, 2010 at 10:45

    If the law give visiting rights to the surrogates it becomes much palatable and less prone to miss use as present the bill has all contradicting statements like a relative/friend can become surrogate and postnatal contact is banned,does the govt want the friends /relatives not to visit the family for helping it.On the one hand it makes surrogacy an altruistic one and gives provision for contracting for money if the party defaults there is no provision to collect the amount.but the law provides for snatching the baby even if the parents default payments.The provision for embryo transplant etc are aimed at making once a surrogate for ever a surrogate.If you carefully read the clauses you can understand the law can be used to exploit both the Intended parents and surrogates for the benefit of ART clinics Establishment of separate ART banks etc are not at all practicable.At some points law is trying to interfere with the fundamental rights of the surrogates like the right to freedom , freedom of expression,Right to live anywhere in the country etc.
    The clauses show only the ineptness of the drafting committee.If they can not formulate a good law they can import one from Briton just copy the surrogacy law of that country paste it and make pdf then the country will have a good surrogacy law.Any how they were our Masters may be some 63 years ago there is no wrong in following the master

  5. Surrogacy said, on October 4, 2010 at 16:50

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  6. preet said, on March 2, 2011 at 16:16

    Reviva clinic is situated in the best planned city in India. Chandigarh is a rare epitome of modernization co-existing with nature’s preservation. Our clinic is located in the most posh locality in the heart of Chandigarh. We at reviva clinic receive patients from all around the world for hymenoplasty and vaginal tightening. Dr Sandeep is well versed in the art of cosmetic gynaecology. We provide private and confidential consultations.We provide concerned, compassionate and complete care beginning in youth through pregnancy, infertility, menopause and later years. IVF Chandigarh

  7. preet said, on March 2, 2011 at 17:43

    Reviva clinic is situated in the best planned city in India. Chandigarh is a rare epitome of modernization co-existing with nature’s preservation. Our clinic is located in the most posh locality in the heart of Chandigarh. We at reviva clinic receive patients from all around the world for hymenoplasty and vaginal tightening. Dr Sandeep is well versed in the art of cosmetic gynaecology. We provide private and confidential consultations.We provide concerned, compassionate and complete care beginning in youth through pregnancy, infertility, menopause and later years. IVF Punjab

  8. prashant meharchandani said, on August 23, 2011 at 11:49

    i suppose legalizing surrogacy for the homosexual couples will lead to an unorganized upbringing of the child…..and legalizing it for the unmarried couples just having sexual relationship have more chances of not upbringing the child in the rightful maner…

    and the most serious will be legalizing it for the singles as it will encourage human traficking(of children) and these children may be misused…..even the proposed ART bill cant regulate it completely


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