Surrogacy and its legal aspects

THIS ARTICLE WAS WRITTEN BY JENNIFER PHILIP, STUDENT OF SCHOOL OF LAW, BENNETT UNIVERSITY.

‘Parents construct the child biologically, while the child constructs the parents socially’, this quote formulates the thought behind a couple going for surrogacy and the importance of a child in the family structure. Surrogacy is the ray of hope for many couples but being an unregulated sector in India till date, it is also prone to many illegal activities, money making business and exploitation of those involved in the process of surrogacy.

Surrogacy

Surrogacy is defined as “a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after birth”[1].

Even though right to reproduction is not given as a fundamental right explicitly, through a series of judicial precedents now it is held to be an essential ingredient of right to life under Article 21 of the Constitution of India. The Supreme Court in Suchitra Srivastava v Chandigarh Adminstration[2] observed that “the rights to choose the mode of reproduction is part of the personal liberty under Article 21 and this right includes the ‘privacy, dignity and bodily integrity’ of the woman and also has to take into account the logical conclusion, reproductive rights etc, which includes a woman’s entitlement to carry a pregnancy to full term, to give birth and to subsequently raise her children”. Another significant one is the case of Devika Biswas v Union of India[3] wherein the Apex Court reiterated the principle that the right to reproduce is part of the fundamental right guaranteed in Article 21 of the Constitution of India.

B.K.Parthasarthi v Government of Andhra Pradesh[4], played a crucial role in stating that the right to reproduce is part of the right to fundamental right. This decision came much before the Puttaswamy judgement[5] on right to privacy. In Parthasarthi, the Court held that ‘the right to make a decision about reproduction is essentially a very personal decision and the intrusion of the State into such a decision-making process has to be scrutinised”.

The 102^nd Standing Committee Report on the Surrogacy (Regulation) Bill, 2016 stated that “India is called the world capital of surrogacy”[6]. The most popular spot for surrogacy in India is a small village, Anand in Gujarat, which is also called the ‘cradle of the world’[7]. The 228^th Law commission report also highlighted India to be a favourable destination owing to the cost-effective medical facilities and availability of surrogates at much lower rates.

Surrogacy: Legal Framework

As of currently, there is no law regulating this arena and has confusion exists with regard to the legal validity and procedures involved in surrogacy. The need to have a regulatory body and guidelines were felt from long back but it was only in the year 2002 that Indian Council of Medical Research (ICDR) came up with set of guidelines governing surrogacy. In 2005, they went a step forward and brought in ‘National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India’ which gave surrogacy considerations and also laid down the conditions that the clinics conducting this need to follow. But there was no statutory backing for these and only had persuasive value.

In 2008, the need to bring in legislation to govern surrogacy was suggested by the Supreme Court of India[8]. The 228^th law commission report in 2009 also indentified the need for legislative backing. It relied on many Indian and foreign judgments dealing with surrogacy. The report suggested for the prohibition of commercial surrogacy, but the legal stand was yet not clear since the Supreme Court in various cases like Baby Manji v Union of India[9] and the Gujarat High court in Jan Balaz v Anand Municipality[10], held that commercial surrogacy is legal, and no law prohibits it and hence womb lending is permissible.

The position regarding commercial surrogacy was clarified by the Department of Health Research notification (dated 4^th November 2015)[11], which mentioned that commercial surrogacy is banned, and state officials were issued advises on the matter. The Ministry of Home Affairs and the Ministry of Commerce through notifications prohibited foreign nationals and even OCI card holders from opting for surrogacy in India and banning the import of the embryo for any purpose except research[12]. These notifications further strengthened the position on the ban of commercial surrogacy in India.

The Draft Assisted Reproductive Technology Bill and Rules, 2008 was proposed in 2008 and the actual bill in 2017. It was reviewed and changes were incorporated but it was never given the legislative status. The first Bill dedicated exclusively to deal with surrogacy was introduced in 2016 in the Lok Sabha and the standing committee examined it and gave its reports in 2017. But the Bill could not be converted into an Act since the time lapsed with the dissolution of the 16^th Lok Sabha. Last year, The Surrogacy (Regulation) Bill 2019 was introduced by the minister of Health and Family Welfare on 15^th July 2019. One striking feature of the Bill is that it creates certain offences which are punishable up to 10 years or are liable to fine up to 10 lakh rupees.

Ethical Issues and how it has been provided for in the Act.

The ethical issues of the process could be carved out from the prohibitions and regulations made by the Bill.

One of the main ethical elements involved in the process is the emotional attachment the surrogate has towards the baby and the Bill tackled it by making it a mandate that the surrogate cannot contribute her egg[13] and this is to reduce the attachment. But neither the bill nor does any other convention takes into account the physical and psychological attachment the mother goes through. Training sessions are conducted, and counselling is given to the surrogate so as to prepare them mentally. One of the eligibilities also includes the surrogate being a married woman with a child of her own; an effort could be seen on making it a means to reduce the attachment of the mother.

The Bill provides for the definition of ‘abandoned child’[14] which means that in this kind of arrangement there will be chances of the child born out of surrogacy being abandoned by the intending parents as well as any guardian appointed. The Bill provides for it by putting a prohibition on this by restricting it to cases wherein there is any genetic defect or birth defect[15] or any such criteria prescribed in the Bill.

The Bill also bans commercial surrogacy[16]and regulates only altruistic surrogacy[17]. The Bill also prohibits surrogacy for prostitution or sale or any kind of exploitation[18], which highlights a negative side of this selfless act being used to trade children[19].

The whole process of surrogacy can even lead to the cyclic exploitation of the woman, who might be forced to become a surrogate again and again for the purpose of getting some amount as reward for her services. One of the criteria for eligibility to be a surrogate mother is that she should not have been done this before[20]. Also, the Bill places a prohibition on any family member of the woman[21], forcing her to be a surrogate.

One of the provisions of the bill regarding the eligibility details of the couple to opt this method of reproduction would be to get certificates stating that they are eligible for it. A significant question which arises is whether it is in violation to the right to privacy which is made a fundamental right by the Puttaswamy Judgement. Parthasarthi case also calls this to be a standard for gross violation of this principle. However close study of the need for this provision in the Bill brings us to the intention of the legislators to include it, which would be to ensure that this service of surrogacy is not misused by couples who already have child/children or those who might be doing it for an illegal activity lie prostitution. This eligibility criterion hence is to ensure that the process is well regulated because there are high chances of it violating the rights of the child. Another significance of having is that there will be identifiable parents for the child[22], an approach which even the United Kingdom adopted.

International Surrogacy Arrangements would also pose a threat since there could be issues pertaining to the legal status of the child and may even lead to the child parentless. The child born in another country may not be allowed citizenship in its parent’s country and will also have to go through several immigration procedures and if the sperm and egg are donated by any other party other than the couple, it would lead to many other problems. Further problems would be dealt in the next part of the paper.

Another issue could be if any couple of the LGBTQ+ community can go for surrogacy or not. The 2019 Bill uses the term intending couple and states that the either one or both of the couple should be infertile for them to opt for this method. There is no explicit mention of the gender of the partners or if they this community is exempted or not. So, the position as of now is not clear but previously a gay couple from Israel had come to India since Israel does not permit for adoption or surrogacy in the country. In this case, one of the partners donated his sperm and chose a surrogate and was blessed with a child. But the position of such cases is ambiguous if the Bill turns into an Act.

Considerations and opinions of stakeholders

The Select Committee on the Surrogacy (Regulation) Bill, 2019 held a meeting on 9^th December 2019 by issuing a press release to obtain views from the stakeholders, experts and others who could undertake visits at places like Anand and obtain the views of the people involved there[23]. The committee also referred to the standing committee report as well as the views of the stakeholders taken during the previous Bill. The present Bill includes all the previous provisions with slight modifications as per the deliberations and the views of the public. So, reliance could be placed on the important issues discussed with the experts for the former Bill. Interactions with the Ministry of Women and Child Development, National Commission for Women (NCW), Ministry of Home Affairs, Ministry of External affairs, Federation of Obstetric and Gynaecological Societies of India (FOGSI), Indian Society of Third Party Assisted Reproduction (INSTAR) [24]etc were taken.

Reliance on Other Jurisdictions

While drafting the Bill the legislators had looked into the practices followed in other countries to get the best regulations in the country. There are several countries which have banned any types of surrogacy and have made its practice illegal. Countries like Saudi Arabia, France, Serbia, Hong Kong, Hungary, Iceland, Ireland, Italy, Pakistan, Nepal etc have made it illegal. Other countries like Australia, Canada, Georgia, Israel, New Zealand, Portugal, Thailand, United Kingdom, Vietnam etc have prohibited commercial surrogacy but have allowed altruistic surrogacy. India also has opted for this approach by banning commercial surrogacy in the Bill. Some countries like Russian federation, Ukraine, few states of United States of America like California, Maryland, New Hampshire etc have put no restriction at all while in USA, states like New Jersey prohibit surrogacy and holds it to be a practice against public policy.

Surrogacy practice was condemned by the European Parliament as it brought down the dignity of the woman and considered her reproductive functions as a commodity[25].

Matters concerning Private International Law

Since India is considered to be one of the most favourable nations for surrogacy, there are chances of foreigners coming to India to get the services availed at cheaper rates. As of presently there is no international law governing this issue which might affect the citizenship of the child since the basis of giving citizenship is different in different countries. There are many cases pertaining to this issue. In Indian scenario, Baby Manji case and Jan Balaz case are prime examples of this. In both the cases issue pertaining to the citizenship and legal parentage of the child were raised. In Baby Manji case, after the arrangement there were matrimonial discords between the partners and hence the legal parentage was brought into question. In this arrangement the sperm belonged to the partner while the egg belonged to some other woman. Later on the custody of the child was given to the father as his name was also mentioned as the genetic father in the birth certificate. While drafting the bill, the views of the Ministry of External Affairs who are well versed with the daily issues faced by foreigners who came to India for surrogacy and the Overseas Citizenship of India card holders, who are considered as foreigners and it was also observed that their needs are kept out of the domain of the Bill.

The most common issues which could be attracted in such International Surrogacy arrangements would be the nationality of the child and the financial duty to maintain the child. The Permanent Bureau of the Hague Convention on Private international Law took the responsibility to study the relation between the legal parentage of children, as well as in relation to international surrogacy arrangements more specifically[26]. The Report of the Experts’ Group on the Parentage/Surrogacy Project which highlights the key notes of the meeting from 29^th October to 1^st November 2019 gives in the possible solutions which could be included in the future conventions[27]. India, represented by the Legal Officer of Legal and Treaties Division, Ministry of External Affairs, was also participant in this meeting.  The outcome of this study will be pertinent since it will guide nations to decide on how to give nationality o child born out of such arrangements.

Another document which should be referred to should be the United Nations Convention on the Rights of the Child. Articles 7 of the Convention gives the child, the right to be registered and given nationality immediately after birth[28] and with no proper laws existing currently on how this will be governed, this right is being infringed. It is also the right of the child to be able to respect and preserve its identity, name and family relations[29] and in a confused state like this the basic human rights of the child are being violated, which is against the very objective of the Convention and hence it should be the responsibility of the States to ensure that no child is born from such arrangements, is left to a world wherein he is not accepted by any nations.

Conclusion

India being one of the most sought-after nation for surrogacy services still does not have any legal backing to regulate the sector. With higher demands to be met, strict guidelines need to be set up and the Surrogacy (Regulation) Bill of 2019 was drafted to govern the practices of this industry. The Bill tries to deal with the common ethical issues raised relating to this service. During the meeting of the stakeholders, the Secretary of the Department of Health Research contended that they have been working on this for the last ten years and had borrowed the best followed methods from other countries but taking into account our culture and tradition[30].

Surrogacy has turned from being a private arrangement done by couples to have a child of their own to a global issue with International Surrogacy arrangements coming into the picture. This brings into the idea to have a convention or law to govern such arrangements globally so that the basic human rights of the child are never violated, and he is not discriminated against and discussions to bring it into action is already in full swing.

[1] Section 2(zc), The Surrogacy Regulation Bill, 2019, Bill No.156-C of 2019.

[2]Suchitra Srivastava v Chandigarh Adminstration  (2009) 9 SCC 1.

[3] Devika Biswas v Union of India (2016) 10 SCC 726.

[4] B.K.Parthasarthi v Government of Andhra Pradesh 2000(1) ALD 199.

[5] Justice K.S. Puttaswamy(Retd.) and Anr v Union of India (2017) 10 SCC 1.

[6] Brief Background, 102^nd Standing Committee Report.

[7] Jan Balaz v Anand Municipality AIR 2010 Guj 21(India).

[8] Ritu Sharma & Deepali Garg & Huma Khan, Surrogacy in India: Current Scenario and Ethical Perspective, 2019; 3(1): 1041, J Clin Obstet Gynecol Infertil.

[9] Baby Manji v Union of India JT 2008 (11) SC 150(India).

[10] Supra,7.

[11]Department of Health Research Notification No. 250211/119/2015-HR.

[12]Supra, 6.

[13] Supra 1, Section 4(ii)(III).

[14] Supra 1, Section 2(a).

[15] Supra 1, Section 7.

[16] Supra 1, Section 3(ii).

[17] Supra 1, Section 4(ii)(b).

[18] Supra 1, Section 4(ii)(d).

[19] Article 2, Optional Protocol to the United National Convention on the Rights of the Child.

[20] Supra 1, Section 4(iii)(b)(IV).

[21] Supra 1, Section 5.

[22] Supra 19, Article 8.

[23] Report of the Select Committee on the Surrogacy (Regulation) Bill, 2019.

[24] Supra 6.

[25] Supra 6.

[26] HCCH, the Parentage/Surrogacy Project, available at https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy, last seen on 1/4/2021.

[27] Report of the Experts’ Group on the parentage/Surrogacy Project, available at https://assets.hcch.net/docs/d435cffc-65ce-4047-b603-ff63ed20591c.pdf, last seen on 4/4/2021.

[28] Supra 19, Article 7.

[29] Supra 22.

[30] Supra 6.