This Article is authored by Advocate Anil Malhotra.
Attractive characters adorn full front page advertisements in newspapers catching the eye. “X is expecting, TV channel Y is blockbustering”. Curiosity bells the cat. Watch the movie. The message is thrilling. An attractive lady agrees to be a surrogate to a foreigner couple. A middleman greedily extorts money. Conventional orthodox parents are kept in the dark. A misconceived medical report depicts abnormalities in the fetus. The US couple abandon the unborn child. The unwed surrogate bears the child at home. A white skinned blonde baby is born. Her parents are livid. Hell breaks loose. The married mediator who had negotiated the surrogacy reluctantly agrees to be the so called father. Surrogate mother-son bonding develops, till one fine morning when the US couple lands on the door step to claim the child. Legalities arise. A DNA test can prove parentage. Foreign mother is suicidal at loss of child. Efforts to reclaim fail. Surrogate refuses to part with child. The story ends happily when the US couple land up with a girl child , said to be adopted from an orphanage. Fairy tale ending. What is the misleading public message. Perception develops that foreigners can hire Indian women for surrogacy, failing which they can walk into a children’s home and leave with an adopted child. Too good to be true.
Entertaining as it may be, gullible and vulnerable citizens accept what they watch on the screen as gospels truth. Ideas, dreams and schemes settle down to exploit foreigners and denizens. Public perception is difficult to erase. In such scenario, depiction of surrogacy and adoption by foreigners in India is portrayed in totally incorrect and misleading fashion. Ought not the film have been screened for legal contradictions. Should dreams of parentage by foreigners be allowed to be sold in pictures and stories when law debars such practices. Is surrogacy allowed to foreigners in India.Can you walk out of an orphanage with a child holding hands. Does Indian law endorse such televised stories. Indian Censors ought to have checked it.
At present, surrogacy in India is allowed only to married Indian couples and banned for foreigners. A surrogate mother can only be a married and willing Indian woman. The Surrogacy Regulation Bill, 2021 is pending legislation. Strict rules have been enforced to check malpractices. Commercial Surrogacy is illegal. Surrogacy clinics are under a lens to enforce eligibility criteria for Indian couples only for altruistic purposes. Hence, the movie depiction is a complete misleading misnomer in terms.
The Delhi High Court recently reprimanded a US Christian couple adopting a minor Indian girl by an adoption deed under Hindu Adoptions and Maintenance Act (HAMA), under which only Hindus could adopt. The six years old adopted child was in custody of US couple since birth. A benevolent Judge held that “there is no cause to remove the child from their charge and custody.” Adoptions under HAMA are irreversible. A mistake of law cannot reverse status of a hapless child well looked after by foster parents, who could have otherwise adopted the child under the Juvenile Justice (Care and Protection of Child) Act ( JJ Act). Incorrect legal advice and portrayal of wrong procedures led to this dilemma. The Court came as a crutch to save the child.
The JJ Act, being a secular law, all persons are free to opt to adopt children under this law. Persons professing Hindu religion are free to adopt under HAMA. Rehabilitation of all orphaned, abandoned and surrendered children is regulated by the strict mandatory procedures of Adoption Regulations(AR). Children of relatives can also be adopted under the JJ Act, if desired. Only such children declared legally free for adoption under the JJ Act by prescribed procedures, can be adopted. Any person or organization offering, giving or receiving such children for adoption in violation of the JJ Act and AR, invites punishment upto three years and Rs. 1 lakh fine.
Eligibility of foreign prospective adoptive parents living abroad, duly registered on Child Adoption Resource Information and Guidance System (CARINGS), irrespective of marital status and religion, is adjudged by foreign specialized adoption agencies preparing home study reports in their home country. Upon approval as per seniority in adoption lists maintained in India, foreigners are offered profiles of children and child study reports are finalized. Prospective children are offered and pre-adoption foster care follows. Specialized adoption agencies then secure Court Orders approving the adoption. Central Adoption Resource Authority (CARA) then issues a pre-adoption NOC for foster care, followed by a Court adoption Order. A final NOC from CARA or a conformity certificate under the Adoption Convention is mandatory for a passport and visa to leave India.
In totality, law enumerates different rules and the film runs awry with a depiction which is neither reality nor fiction. This malpractice to describe human life relationships can be very damaging for children born in such relationships not endorsed by law. Likewise, innocent and unwary foreigners can be trapped for no fault of theirs. Law to rein in such films is needed to check views which may be perceived as truth.