SPEED BREAKERS ON THE ROAD TO SURROGACY

BURGEONING SURROGACY INDUSTRY IS PROPELLED BY ABSENCE OF A COHESIVE LEGISLATION AND MUSHROOMING IVF & ART CLINICS WANTONLY ADVERTISING SERVICES FOR PROVIDING WOMBS ON RENT.

The unregulated reproductive tourism industry procreating surrogacy is booming with India being the first country proposing to legalise commercial surrogacy. Whilst, the new Assisted Reproductive Technology (ART) (Regulation) Bill and Rules, 2010, are still in the womb, the non-statutory Indian Council of Medical Research (ICMR) Guidelines, 2005, rule the roost. The Indian entrepreneurial industry spirit has catapulted the business of providing “wombs on rent” to a whopping trade valued at Rupees Twenty Five thousand Crores. Despite legal, moral and social complexities that shroud surrogacy, economic necessity stimulates women to shake off their inhibition and fear of social ostracism to be lured by agents or corporate surrogacy consultants for international markets. Free availability of a large pool of women willing to be surrogates, a good medical infrastructure, fractional costs, less waiting time, close monitoring of surrogate mothers by over two lac In-Vitro Fertilization (IVF) Clinics and no check of any law restricting single, gay or unmarried couples becoming parents by surrogacy, has made this unethical trade in India skyrocket to spiralling heights.

NEW INDIAN MEDICAL VISA REGULATIONS WILL CAP SURROGACY

However, soon, the business of surrogacy will plummet and boomerang. As per latest and new Indian visa regulations, effective 15 November, 2012, onwards, all foreigners visiting India for commissioning surrogacy will be required to apply for “Medical Visas” and cannot avail of simple tourist visas for surrogacy purposes. The Ministry of Home Affairs by a letter of 9 July, 2012, has stipulated mandatory conditions for such medical visas, which if not fulfilled, will lead to visa rejection. These new medical visa Regulations stipulate that a letter from the Embassy of the foreign country in India or its Foreign Ministry should be enclosed with the visa application stating clearly that such country recognises surrogacy and that the child to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child of the couple commissioning surrogacy who will undertake to take care of their surrogate child. The treatment will be done only at  registered ART Clinics in India recognised by ICMR and the foreign commissioning couple must produce a duly notarised agreement between them and the prospective surrogate Indian mother. After the surrogate baby is born, an exit permission by a commissioning couple before leaving India will be required from the Indian Foreigners Regional Registration Office (FRRO) to verify issuance of a certificate from the ART Clinic confirming discharge of liabilities of the Indian Surrogate mother and ensuring custody of child with the commissioning parents. Clearly, the safeguards, checks, balances besides moral and ethical dimensions which till date remain unaddressed through any legislation, have been administratively put in place to aptly regulate the surrogacy industry. The dam built with the strong bricks of the conditions of medical visas will prevent the gushing flow of unrestricted, pouring and muddled surrogate waters which had polluted India by becoming a bane for women’s health, their basic dignity and human fundamental rights.

MEDICAL VISA REGULATIONS WILL HARMONISE WITH EXISTING INDIAN AND FOREIGN LAW OF COUNTRIES OF COMMISSIONING PARENTS

Commercial surrogacy is illegal in UK, though permissible under British Law, on payment of reasonable expenses to the surrogate mother. In most US States, compensated surrogacy agreements are either illegal or unenforceable. In some Australian States, arranging commercial surrogacy is a criminal offence and surrogacy agreements giving custody to others are void. In New Zealand and Canada, commercial surrogacy is illegal, although altruistic surrogacy is allowed. In Italy, Germany and France, commercial or other surrogacy is unlawful, in Israel, commercial surrogacy is illegal and law only accepts the surrogate mother as the real mother. India, in total contrast, accepts commercial surrogacy and no law declares it illegal. The Supreme Court on 29 September, 2008, in Baby Manji Yamada Vs. Union of India and Another, All India Reporter 2009 SC 84, 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.” However, the new Indian Medical Visa Regulations by disallowing Indian visas to foreigners whose countries prohibit surrogacy will ensure that we harmonise and fall in tandem internationally with those foreign nations whose overseas citizens wish to wrongfully patronise surrogacy in India Of our own, we have banned foreign single, unmarried or gay parents by restricting surrogacy to couples constituted by a foreign man and woman only who have been married for atleast two years. Operations of unethical, unregistered and unrecognised ART shops cannot be availed of anymore.

REACTIONS AND RESPONSES OF FOREIGN GOVERNMENTS

Most foreign embassies have indicated on their websites that Indian Government now requires medical visas for foreigners coming to India for surrogacy. Besides, stringent DNA tests are already in place to establish genetic connections for parentage and foreign nationality. Indian Consulates overseas and Visa Facilitation Services (VFS) have also notified that foreign nationals must ascertain beforehand whether their country permits surrogacy and that they cannot enter India for surrogacy purposes by tourist visas. The British High Commission, New Delhi, in advance preparation, by its letter of 30 October 2012 to the India High Commission, London, states that the British Government recognises surrogacy and makes provisions for commissioning couples for children born overseas through surrogacy. The UK Human Fertilization and Embryology Act, 1990 is cited in support. It allows surrogacy if one parent is genetically related to the surrogate child and no money other than reasonable expenses are paid in respect of the surrogacy arrangement. Alternatively, the said letter also take support of the UK Human Fertilization and Embryology Act, 1990, for providing parental orders to commissioning parents. This letter is stated to be a request for entertaining applications for medical visas for purposes of surrogacy in India as per requirements of the new Indian Medical Visa Regulations.

CONCLUSION

Rather than Parliament catching up to make a law to regulate the unscrupulous surrogacy trade, the new Medical Visa Regulations have stepped in to do what the law ought to have done. Rather than permitting surrogate children to be born in India with the risk of being stateless persons and being denied entry into foreign countries where their commissioning parents reside, it is apt and necessary that such unethical practices leading to such disastrous situations must be pre-empted and prevented. The Indian Government in its administrative wisdom has stepped in at a time when the regulatory law is nowhere near the horizon. Recent 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 ART Bill, 2010, itself has legal lacuna, lacks creation of a specialist legal authority for determination and adjudication of legal rights of 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. Till then, the much needed medical visa regulations will provide succour and relief. What cannot go on must not be allowed to be carried on if there is no law.