This Article is authored by Advocate Anil Malhotra.
A thriving, flourishing and booming surrogacy industry produced babies in Ukraine with their online advertisements attracting a worldwide clientele. 14 companies including BioTexCom offered these facilities. 36,000 Euros package in surrogacy program “Care” offered surrogacy with frozen embryos. 39,000 Euros package in surrogacy program “Victory” offered IVF with own eggs to be implanted in a surrogate mother. 40,000 Euros package in surrogacy program “Success” offered IVF with donor eggs to be implanted in a surrogate mother. 50,000 Euros package offered unlimited IVF attempts using egg donation in a surrogate mother in surrogacy program “Guarantee”. The attractive commercial surrogacy services in Ukraine included guest & administrative services, legal & notarial services, surrogate mother selection, egg donor choice, surrogate mother pregnancy monitoring and ending with child birth with child’s document execution. You went, chose the egg donor, selected the surrogate mother “ordered” a baby of features of your choice and happily went to collect the child after nine months. Gender selection was not allowed. Same sex couples were banned. All was good till Russia invaded Ukraine and the boom is bust.
India at one time was a center of global fertility surrogacy industry. After India, Thailand, Nepal and other countries banned commercial surrogacy. Then, Ukraine emerged as the surrogacy capital, advertising surrogacy with “wombs on hire,” attracting foreign parents in Europe, Latin America and China. India after 17 years of adhoc surrogacy stands, has on December 25, 2021, enacted The Surrogacy (Regulation) Act, 2021 prohibiting commercial surrogacy but allowing altruistic surrogacy. Similarly, the Assisted Reproductive Technology (Regulation) Act, 2021, (ART Act) now aims to regulate and supervise assisted reproductive technology clinics and assisted reproductive technology banks, and prevent misuse. These hazy laws have pitfalls and provide no succor to reported 1.8 crore Indians who have infertility issues. Restrictive choices, no implementing infrastructure, inconsistent provisions compared to adoption laws and lack of cohesion with legalities, have provoked debates on legal, ethical, social and moral tussles on the Indian surrogacy radar. The fear. Surrogacy will shift to the underground grey market and still flourish in silence in India.
But, the burning issue. In makeshift basements at Ukraine, babies born out of surrogacy lie in rows of cribs awaiting their biological parents to identify their nationality under Ukrainian law. Harried parents abroad have no clue on how to reach them. Nurses and Nannies guard the babies till the nightmare hopefully ends. Estimated 500 surrogate mothers in Ukraine are said to be carrying babies for overseas parents, earning upto 15,000 USD. Nobody realized that the surrogacy industry quietly became the largest in Ukraine and perpetuated because of abject poverty. Children born and yet to be born will face a plethora of legal hurdles. The looming larger issue however is safety and survival. The dilemma. How will they be rescued. What will be their ultimate fate.
In this impasse and predicament, an international agency has to step in to the rescue of these hapless babies. Pursuant to a mandate from its Members, the Permanent Bureau of the Hague Conference on Private International Law (HCCH) is currently studying the private international law issues being encountered in relation to the legal parentage of children, as well as in relation to international surrogacy arrangements. A general private international law instrument on legal parentage and a separate protocol on legal parentage established as a result of international surrogacy arrangements is being examined by a group of about 25 countries in an ongoing exercise. This group has also continued its discussions on the feasibility of advancing work with respect to a possible Protocol on the recognition of legal parentage established as a result of surrogacy agreements. This exercise can come in as a very timely rescue exit in Ukraine. If a team of international family law experts were to garner international support and step in to rescue these surrogate babies born in Ukraine, they may find homes with anxious parents. This monumental work will require global EU intervention and Russian initiatives in a humanitarian gesture. The babies born or in conception are not at fault. War has played havoc. But their lives need not end in ruins. The International Committee of the Red Cross and the United Nations involvement in the implementation of international humanitarian law has to go in top gear to provide succor. An energized impetus ought to be built up in a public appeal to reach out to these unidentified babies. The United Nation Convention on the Rights of the Child enjoins that every child on birth has a right to acquire a nationality, an identity and to be cared for by his or her parents. This laudable law has a role with no barriers, no enemies and no politics. Let human hands join to weave a web of humanity and rescue these infants to live and to be loved.