SURROGACY, SINGLE PARENTS AND THE LAW

Glamour promotes surrogacy. Actor Tusshar Kapoor announced the birth of his week old son born by in vitro fertilisation (IVF) and surrogacy. British pop star Elton John and his Canadian film maker partner David Furnish became parents of a baby boy through a surrogate mother in California while our very own Indian film star Aamir Khan and Kiran Roy had a child through surrogacy aided by IVF. Despite legal, moral and social complexities that shroud surrogacy, there is no stopping people from exploring the possibility of being single or  couple parents. Women who chose to rent their womb for a surrogate pregnancy, are slowly shaking of their inhibition and fear of social ostracism to bring joy to childless parents irrespective of their marital status.   

India, till recently was the hub of surrogacy. In 2008, Japanese baby Manji Yamada was born to an Indian surrogate mother at Jaipur with IVF technology, upon fertilisation of her Japanese parents egg and sperm in Tokyo, which was implanted in an Indian surrogate mother at Ahmedabad. The Japanese couple divorced and the grandmother Emiko Yamada petitioned the Supreme Court to claim the baby and take her to Japan as the commissioning mother disowned the surrogate child. Single parent surrogacy was recognised with the Japanese father as a sole parent.

The Indian Council for Medical Research (ICMR), working under the Ministry of Health and Family Welfare, finalised the National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India, 2005, after extensive public debate all over the country from all stake holders. In chapter three, relating to Code of Practice, Ethical Considerations and Legal Issues, it has been stipulated that there shall be no bar to the use of ART by single women who will have all the legal rights and to whom no ART clinic may refuse to offer its services for ART. Likewise, there is no legal bar on an unmarried woman going in for Artificial Insemination with donor semen (AID) and a child born to a single woman through AID would be deemed to be legitimate. By anomaly, single men too can claim this right.

Successive draft ART (Regulation) Bills in 2008, 2010 and 2013, had reportedly proposed that ART in India would be available to all, including single persons and foreign couples. However, successive draft ART Bills of 2014 and 2016, are stated to restrict surrogacy to Indian married infertile couples only and even persons of Indian Origin, Non Resident Indians as also Overseas Citizen of India have been debarred from commissioning surrogacy in India. The final version of the Surrogacy Bill has not yet been debated in Parliament and administrative guidelines rule the roost. Legislation is yet to follow. However, reportedly there is no distinct ban on single parent surrogacy for single Indian parents nor any statutory codified law bars the same.   

Anomalous and inconsistent as it may seem, in the matter of Inter-Country adoptions, the Ministry of Women and Child Development has a diametrically opposite policy. It statutorily propagates inter-country adoptions from India for foreigners. The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) allows a Court to give a child in adoption to foreign parents irrespective of the marital status of such a person. It was notified and implemented from 15 January 2016, after being passed by Parliament and approved by the President. The JJ Act also authorises State Governments to recognise one or more of its institutions or voluntary organisations as specialised adoption agencies for the placement of orphan, abandoned or surrendered children for adoption in accordance with the guidelines notified by the Central Adoption Resource Agency (CARA). The latest guidelines governing Adoption of Children notified on 17 July 2015, have streamlined Inter-Country Adoption procedures, thereby permitting single parent adoptions with the exception of barring single male persons from adopting a girl child. Parenthood for single persons or foreigner couples by adoptions and surrogacy have thus different inconsistent barometers and a conflict of parental rights. This is even though Parliament approves of adoption of children by foreigners, but sadly, approval for surrogacy does not find favour in executive hands.

Surrogacy in vogue for the past over ten years has been shut down overnight. Tripartite constitutional fundamental rights of stakeholders stand violated in the process. Commissioning foreign and single parents as persons, enjoy the protection of the equality of law and the Right to life under Articles 14 and 21 of the Constitution which cannot be taken away, except according to the procedures established by law. A right to reproductive autonomy and parenthood, as a part of a right to life of a single or foreign person, cannot be circumvented by an executive order, especially when Parliament by law already permits parenthood by inter-country adoptions from India by single persons or foreigners as couples. Even medical professionals can no longer practice surrogacy for foreign parents, thereby imposing an unreasonable justification. Surrogate mothers too may claim deprivation of a right of livelihood. All these diverse rights have been curtailed in an undemocratic fashion as codified law is yet to follow.

The possible Government logic banning foreign surrogacy to prevent its misuse, seems counterproductive. Rich Indian commissioning parents can still dominate surrogate mothers through water tight contracts. Barometers of domestic altruistic surrogacy will be an opportunity for corruption and exploitation, sweeping the business of surrogacy into unethical hands in an underground abusive trade. The ends will defeat the means. Surrogacy may still flourish with abandon. Sweeping it under the carpet will not help. Ignoring its prevalence cannot extinguish it at a stroke.

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. 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. Persons, citizens or foreigners will not matter. The appropriate and desirable method would be to create a mechanism to judge the 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 a statutory body, is the ideal example to cite in support. We cannot shut our thinking simply because of the problems. Solutions must be found and a law governing surrogacy for which we have been waiting for the past ten years must give birth to a statute.  An unjust proposed law cannot arbitrarily stamp out a determination process of the rights of parties. It is undemocratic and intolerant. Law, thus, must make a call.