THE PREDICAMENT
Phenomenal but true. Natural disasters wreak havoc and make strange bed fellows. Whilst a 7.8 magnitude quake on the Richter scale shook Nepal, it also frantically rocked the cradles of 26 babies born to Indian surrogate mothers in Nepal commissioned by different single or gay Israel men. This reportedly prompted the Israeli authorities to deploy military aircraft to rescue these stranded Israeli denizens to safety with their new born surrogate progeny. Reports also indicate that Israel is further contemplating to provide safe air passage to surrogate Indian mothers nursing babies in their wombs for Israel nationals. This piquant predicament also haunts estimated 60 perturbed Australian nationals as well, who had hired services of women for commissining birth of surrogate babies due to be born in coming months. Hell let loose, the salvage operations are working on a war footing.
SURROGACY IN INDIA
Under the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005, made by the Indian Council for Medical Research (ICMR), there is no bar to use of artifical reproductive technology (ART) by a single or an unmarried woman and the child so born would have legal rights with the man or woman concerned. With no codified law by Parliament, commercial surrogacy flourished and the Supreme Court in Baby Manji Yamada AIR 2009 SC 84 observed, “commercial surrogacy reaching industry propotions is some times referred to by the immotionally charged and potentionally offensive terms : wombs for rent, outsourced pregnancies or baby farms”. The draft Assisted Reproductive Technology (Regulation) Bills of 2008, 2010 and 2013 proposed that ART in India would be available to all persons including single parents and foreign couples. Meanwhile, in the absence of clear legal answers on issues of parentage, citizenship, nationality and rights of parties in surrogacy arrangements, problems proliferated and solutions dwindled. Exploitation became rampant and surrogacy flourished in India as a cheaper destination for foreigners. Law remained a silent spectator and extraordinary jurisdiction of writ courts was invoked for innovative solutions by foreigners so that new born surrogate babies were not rendered stateless with exit permits, summary adoption procedures and birth certificates being issued summarily.
THE CLAMPDOWN
The exodus of commercial surrogacy from India to Nepal was triggered of pursuant to Ministry of Home Affairs Guidelines of July 9, 2012, restricting surrogacy in India to duly married foreign men and women only with at least two years of a marital bond. Further deliberations of Departments and Ministries of the Indian Government on the draft Assisted Reproductive Technology (Regulation) Bill, 2013 also indicate that there is a proposal to restrict surrogacy in India to “infertile Indian married couples” only and it would not be allowed to foreigners unless married to an Indian citizen. Non resident Indians, persons of Indian origin and Overseas citizens of India, shall, however continue to be eligible for commissioning surrogacy in India provided that the nation of their permanent residence permits surrogacy and will grant citizenship rights to children born from surrogacy. This proposal still in the nascent stage, has yet to see the light of the day in the form of a codified law. Its purported objective is to prevent explotation of Indian women falling prey to unethical practices. However, time regales another song. After India and Thailand shut out foreigners for surrogacy, the turf shifted to poverty ridden Nepal where rules are dodgy and regulations are weak. Incidents reveals that the trade has shifted by relocating Indian women to Nepal and the business of surrogacy thrives as usual in full swing.
SHIFT TO NEPAL
As the noose tightened in India, easy travel to Nepal helped. The initial Nepali law not reconigsing surrogacy and not enforcing surrogacy contracts in Nepal was relaxed by Nepal’s Cabinet of Ministers to allow foreigners to have surrogate babies as long as the mother was also a foreigner. The logic in doing so was commercial as it was touted that surrogacy would promote medical tourism in Nepal regardless of the pitfalls of exploitation by unscrupulous agents to carry babies for foreigners. The Government of Nepal had also expressed intentions of introducing guidelines which would make surrogacy legal for foreigners. It was a win win situation in the making. All seemed to be well till nature played it role. With mass devestation by the catastrophic earthquake, safety and health issues crop up endangering the business of surrogacy. If the Indian surrogate mothers were now to be relocated to India, issues of nationality, parentage, exit visas and legal complications loom large. Lack of a codified law in India on surrogacy further muddles the murky waters. Fait accompli clinches the quandary to a point of no return while law looks the other way.
FOREIGN LAWS
Countries like the US through their Embassy at Nepal define their roles in issuing a counsular report of birth abroad and granting a US passport to the surrogate child. Documentation needed include a surrogacy contract, hospital discharge papers for the child as also for the gestational mother with her identity proof, birth certificate by the local hospital and the birth registration by the local municiplity. The US parent and the child born from surrogacy is also required to undergo a DNA test from a US DNA kit confirming the biological link. Further, the gestational mother has to sign a consent to the issuance of US passport by personal presence as the US Embassy. However, the whole project can turn turtle if unforutnately the DNA report rejects any parentage proof leaving both the surrogate child and the commissioning parent in the lurch. The Government of Nepal has not yet outlined any procedure for babies to exit the country. Regardless, US and Australian nationals commissioned surrogacy arrangements, putting themselves at risk with piquant over tones of the unforseen natural calamity in Nepal opening a pandora’s box of unforseen problems.
A PRAGMATIC SOLUTION
India having kindled the fire of surrogacy now cannot sit back and turn a blind eye. Considering that the commissioning mothers may be Indian nationals whose lives and safety may be at grave risk, there is a dire need for enactment of a wholesome law enveloping all current societal practices associated with surrogacy. Whilst the Parliament looks at debating The Juvenile Justice (Care and Protection of Children) Bill, 2014 to look at interalia, fast track inter country adoptions where in a court may allow a child to be given in adoption to an individual, irrespective of his or her marital status, an immediate debate on practices of surrogacy must also be initiatied simultaneously. If by an existing law made by Parliament, children from India are permitted to be adopted by foreigners irrespective of being a couple or being single, subject to checks, clearances, permissions and screening by a court, a similar logic must prevail for surrogacy as well. The proper approach would be to regulate the practice by a clear codified law in tandem with what has become a societal practice. The ICMR Guidelines, 2005, can no longer navigate practices with changes brought by advent of time and technological advancement whereby forzen fertilized embryos from foreign jurisdictions sent in cyrogenic jars await surrogate wombs and other scientific methods have offered hopes to childless people. Persons, citizens or foreigners will not matter. The appropriate and desirable method would be to create a mechanism to judge suitability of proposed surrogate parents rather than to debar all single or foreign persons. An existing strict and rigorous mechanism in existence for inter country adoptions administered by Central Adoption Resource Agency (CARA), which is now proposed to be a statutory body, is the ideal example to cite in support. Diverting persons to jurisdictions like Nepal is not a pragmatic solution. Unethical practices should not be allowed to be proliferated. We cannot shut our thinking simply because of the problems. Solutions must be found and a law governing surrogacy in the waiting for the past ten years must give birth to a statute.
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