Glamour promotes surrogacy. British pop star Elton John and his Canadian film-maker partner David Furnish became parents of a baby boy born to a surrogate mother in California while our very own film Indian star Aamir Khan and Kiran Rao obtained a child through surrogacy aided by In-vitro Fertilization (IVF). Today, the reproductive tourism industry promoting surrogacy in India is estimated at Rs. 25,000 crores promoted by over 200,000 IVF clinics with websites offering wombs, sperms and eggs. Surrogacy packages which reportedly cost $100,000 in Europe or the US are easily available in India in the range of $10,000. Surprisingly, surrogate hiring of wombs exists in India even though The Transplantation of Human Organs Act, 1994, bans the sale of human organs, loaning of organs and any commercialization of the trade of human organs. Moreover, surrogates are nowhere as freely available as in India to single parents, gay or unmarried partners, despite the fact that same sex relationships are not permissible in India. The primordial urge to have a biological child of one’s own flesh, blood and DNA, aided with technology and purchasing power of money coupled with the Indian entrepreneurial spirit has generated this flourishing Indian reproductive tourism industry.
AN ANOMALOUS LAW
In a developed country like the UK no contract or surrogacy agreement is legally binding. In most states in the US, compensated surrogacy arrangements are either illegal or unenforceable. In some states in Australia, arranging commercial surrogacy is a criminal offence and any surrogacy agreement giving custody to others is void. In Canada and New Zealand, commercial surrogacy has been illegal since 2004, although altruistic surrogacy is allowed. In France, Germany and Italy, surrogacy, commercial or not, is unlawful.In contrast, in Israel, virtually all surrogacy permitted for married couple only, is commercial and surrogates are paid an amount as per a written agreement to be approved by a special committee. What then prompts India to enact a proposed law to make surrogacy agreements legally enforceable is to protect the genetic parents, surrogate mother and the child.
Economic necessity fuels the surrogate trade. Ironically, medical data indicates that in India, there is a need every year of about 1,75,000 kidneys, 50,000 hearts and 50,000 livers for transplantation and each year about 1,40,000 people die waiting for a kidney. Life saving organs are not available but wombs on hire are. Even though commercial surrogacy is an anti-thesis of transplantation laws, but it is a medically accepted practice reflected in the 2005 Indian Council of Medical Research (ICMR) Guidelines and the Assisted Reproductive Technology Regulation Bill, (ART), 2010, prepared by the Health Ministry. Clearly, surrogacy flourishes legally because it is medically not illegal. No doubt, the Supreme Court in Baby Manji Yamada’s case (2008) 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.” India therefore, is set to be the only country to legalise commercial surrogacy through the proposed law which is already a glaring reality.
Recently, in December 2011, the High Court at London granted parental orders to a British couple under the British Human Fertilisation and Embryology Act, 2008, for their two children born to Indian surrogate mothers after both children were given British passports and allowed to leave India. Sir Nicholas Wall, speaking for the Court, held that “it is plainly in the interests of these two children that they should be brought up by Mr. & Mrs. A as their parents.” The couple had paid £27,405 for a surrogacy package in India because of lack of surrogate mothers in UK as there was a three year waiting list in the UK. Earlier, even the Indian Supreme Court in September 2008 in Baby Manji Yamada’s case had directed the Central Government to dispose off expeditiously the request of the grandmother permitting her to transport her surrogate granddaughter born in India through surrogacy. Resultantly, the surrogate baby whose parents had divorced was issued an “identity certificate” enabling her journey to Japan.
COURTS TO THE RESCUE
After a frustrating two-year legal battle in India on behalf of their surrogate sons – Nikolas and Leonard – German couple Jan Balaz and Susan Anna Lohald were allowed to return to Germany after the Supreme Court of India intervened and, in a court hearing on 26 May 2010, the Indian Government agreed to provide them with exit permits. The twins were born in the State of Gujarat in January 2008 and registered as children born of a foreign couple through an Indian surrogate mother. Upon being declined birth certificates, Jan Balaz moved the Gujarat High Court, which ruled that since the surrogate mother is an Indian national, the children would also be treated as Indian nationals and would be entitled to Indian passports. However, the Government of India challenged this decision, stating that the toddlers, being surrogate children, could not be granted Indian citizenship, which rendered them stateless as they had neither German nor Indian citizenship. The German authorities had also refused visas to the twins on the ground that German law did not recognise surrogacy as a means to parent-hood. Ultimately, Jan Balaz and Susan Lohald went through an inter-country adoption process in India, upon which the Indian Government granted exit permits to the German surrogate twins to enable their journey back home to Germany. Clearly, Courts worldwide acting equitably, lean to favourably interpret existing laws aiding parenthood for surrogate children.
Surrogacy is also popularly resorted to by gay couples in India. Israeli gay couple Yonatan and Omer Gher became parents to a child born to them with the help of a Mumbai based surrogate mother in 2008. Subsequently, in 2010, Dan Goldberg and Arnon Angel from Israel, another gay couple to whom twin baby boys were born in Mumbai from an Indian surrogate mother, were stranded in India after the refusal of the Jerusalem Family Court to allow a paternity test to initiate the process for Israeli citizenship for the twins. The issue was debated in the Knesset (Israeli Parliament) where Prime Minister Benjamin Netanyahu had to intervene so that the infants could be brought to Israel following legal procedures. Ultimately, on appeal, the Jerusalem District Court accepted the claim that it was in the best interest to hold a DNA paternity test to establish that Dan Goldberg was the father of the boys, Itai and Liron. The DNA samples of Goldberg and the twins were brought to the Sheeba Medical Centre in Israel, which established Goldberg as the father of the infants. After being stranded in Mumbai for over three months, Goldberg and his twin baby boys returned to Israel in May 2010 after the children were granted Israeli passports. Thereafter, in 2011, a gay Spaniard couple Mauro and Juan became parents of female twins born to them through a surrogate mother in India. More such occurrences will follow in times to come.
A FLAWED LAW IN THE MAKING
The only face saving which can be pondered and deliberated is how to regulate surrogacy, prevent exploitation besides resolve issues of citizenship, nationality and parentage. In this context, the ART Bill, 2010 suffers from serious lacunas and shortcomings. Some questions left unanswered in the Bill are enumerated below:
Ø Remedies available to biological parents to obtain exclusive legal custody of surrogate children and waiver of rights of surrogate mother besides restricting rights of sperm or ovum donor.
Ø Mode of statutorily establishing genetic constitution of surrogate baby.
Ø Legal process of recording parentage of surrogate child.
Ø Process of determination of citizenship and nationality rights.
Ø Guardianship/adoption proceedings in respect of children born out of surrogacy agreements as Hindu laws do not allow non Hindu parents to adopt in India.
Ø Custodial rights of single/gay/unmarried/divorced parents.
Ø Legal validity of surrogacy agreements vis-à-vis existing Indian laws.
Ø Rights to prevent exploitation of surrogate mothers.
The ART Bill, 2010 is flawed. It has neither designated, nor authorized or created any Court or judicial forum to resolve issues which will require adjudication in problems arising out of surrogacy. The National and State Advisory Boards created by the Bill will not serve the purpose to determine issues of parentage, nationality, issuance of passports, grant of visas and problems of disputed parentage. It is extremely necessary to create a statutory procedure for mandatorily adjudicating these issues before the surrogate child leaves India. Even rampant exploitation of surrogate mothers has to be curbed, checked and punished upon detection. The Bill does not address these issues.
It seems that the question whether India should be the surrogate motherhood capital of the world or not is now a far cry. Social and economic necessities besides medical professional sponsorships have ensured that surrogacy is here to stay. Therefore, an active legislative intervention to facilitate the correct uses of this new technology of ART may be a more plausible approach in grappling with commercial surrogacy. The proposed law has to also take care that the use of ART and IVF does not graduate to unethical practices of making designer babies by choosing traits or embryo selection now made possible by stem cell research and cloning. Medical personnel must be guided by a strict law to prevent any malpractices. Above all, trading of any form in human merchandise by other unethical agents in the so called business of babies must be curbed with a heavy hand. A regulatory law supported by a legislative machinery and effective rules to look at all the problems associated with surrogacy must be put in place. Besides, Embassies and High Commissions of Foreign Missions of different countries in India are also looking for a law which will help them make their own policies for adapting to surrogacy besides resolving issues of surrogate children born to their countrymen to enable them to achieve dreams of parenthood. Thus, a proactive, well drafted surrogacy law requires to be urgently put in place forthwith without any delay. This it seems is, now the call of the born surrogate child.
Comments