Laws and Policies on Surrogacy: Comparative Insights from India 9811643482, 9789811643484

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Harleen Kaur

Laws and Policies on Surrogacy Comparative Insights from India

Laws and Policies on Surrogacy

Harleen Kaur

Laws and Policies on Surrogacy Comparative Insights from India

123

Harleen Kaur Campus Law Centre, Faculty of law University of Delhi Delhi, India

ISBN 978-981-16-4348-4 ISBN 978-981-16-4349-1 https://doi.org/10.1007/978-981-16-4349-1

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

For Harpreet, Dev and Sargun

Acknowledgements

I take this opportunity to express my deep sense of gratefulness to all concerned who contributed in more than one way to the completion of this book. My inspiration in writing this book stemmed from my doctrinal thesis on “Rights of The Surrogate Child with Special Reference to The Commissions for Protection of Child Rights Act, 2005”, wherein I dealt with the rights of surrogate child under the ART Bill 2010 and the role played by child commissions in protecting the same. During the time I was pursuing my Ph.D., I realized the market does not offer many publications on the topic of surrogacy despite surrogacy being a hot topic for sometime now. This book is a major deviation from my Ph.D. thesis as it is based more on notifications/proposed surrogacy (regulation) bills which came in existence but unfortunately failed to take the shape of law owing to various reasons. I am sure this piece of work would be a valuable contribution in proposing a balanced and an unambiguous law in India from the perspective of not only the surrogate child but also that of the surrogate mother and intended parents while looking into the laws and policies on surrogacy globally. The book contains limited excerpts from my thesis and is a book with widened horizon on regulation of such practices in India. In this journey, I am extremely indebted to my mentor (Dr.) B. K. Raina, former Associate Professor, Law Centre-I, Faculty of Law, University of Delhi, who successfully harnessed my research potential and always encouraged me to excel in my career. My heartfelt and sincere thanks to my parents and in-laws for always providing me an academically vibrant atmosphere and always being a source of inspiration in my pursuit towards academic excellence. Interactions with my father-in-law S. Kuldeep Singh, retired Vice-Chairman, Central Administrative Tribunal, and former AD&SJ1 and father (Dr.) D. S. Bedi, former Associate Professor, Law Centre-I, Faculty of Law, University of Delhi, not only sharpened my spectrum but also enlightened my vision in this area. I would also like to thank the officials and staff of library of Faculty of Law, University of Delhi, Indian Law Institute, New Delhi, and National Law University, Dwarka, who helped me by providing valuable research material desired by me and 1

Additional district and sessions judge

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Acknowledgements

facilitating access to their respective libraries. I express my heartfelt gratitude toward various authors whose invaluable work is consulted, referred or quoted in this book. I am grateful to my seniors, friends and colleagues for their encouragement and reposing immense trust in me. I take this opportunity to thank my students also for their faith in me and waiting eagerly for the release of this venture. My heartfelt thanks to Mr. Aayush Tripathi for his insightful discussions and lending research assistance in completing this book. My heartfelt and sincere thanks to my husband S. Harpreet Singh for his ungrudging inspiration in my pursuit toward academic excellence. His unending moral support, late-night interactions and providing valuable information for this book has no doubt contributed to the quality of this study. I can never forget the encouragement and tolerance exhibited by my children in completion of this book. I am extremely thankful to Ms. Nupoor Singh and Mr. Daniel Joseph Glarance of Springer Nature for having belief in my work, for their guidance, for providing helpful feedbacks and advice in completing the journey. I also express my sincere appreciation for the comments and reviews given by the anonymous reviewers of Springer Nature which for sure added new dimensions and quality of the book. My sincere thanks to the entire team of Springer Nature for their cooperation in completion of this book. Finally, I express my gratitude to the Almighty for showering his blessing on me and guiding me on this path of academic pursuit. Dr. Harleen Kaur Assistant Professor Campus Law Centre, Faculty of Law University of Delhi Delhi India

Preface

For some, having a child, sharing their love and raising a family is a way of bringing completeness to their life in a true sense. Unfortunately, however, for some people, the inability to rear children becomes extremely heart breaking and no one can understand the agony of infertile couples/individuals and the pain they go through of remaining childless. In recent years, however, with the development of assisted reproductive technologies such as in vitro fertilization (IVF), cryopreservation, egg and sperm donation and Surrogacy, it has become increasingly possible to procreate without the necessity of heterosexual copulation. However, at the same time, the success of these technologies has brought about a plethora of vexing and controversial legal questions to which answers are not readily available as these technologies by their very nature challenge conventional notions. In fact, today cross-border surrogacy agreements form part of a rapidly growing medical tourism industry and despite the significant increase in the number of cross-border surrogacy arrangements, the reception and regulation of surrogacy is remarkably diverse between nations. The international perspective adopted by this book shall offer opportunities to the concerned, for analyzing the policies and practices being adopted and followed by various nations with respect to surrogacy regulations and associated parenthood rules, especially in countries such as England, Israel, USA, Australia, Canada and New Zealand, in addition to other countries such as Japan, Nepal, Thailand and Iran. For instance, England and Israel have well-established laws on the determination of parenthood arising from surrogacy arrangements (though both nations apply somewhat different solutions for establishing and/or transferring parenthood). Surrogacy arrangements in the UK are subject to a framework which is a combination of Surrogacy Arrangements Act 1985 and the Human Fertilization and Embryology Act 2008 (‘HFEA 2009’) and at the same time, Israel recognizes only gestational surrogacy vide the Embryo Carrying Agreements (Authorization Agreement and Statutes of the Newborn Child) 1996 which made Israel the first nation globally to start 'State Regulated Surrogacy' which required every surrogacy arrangement to be approved by the state. Surrogacy laws of the various federal states of the USA that exist vary from one state to another. While one state ix

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provides for a total prohibition with criminal sanctions, there are states where regulations are moderate, and then, there are states where there is a complete freedom of contract. This wide range of laws has already led to what one can call a, 'jurisdictional chaos.' In the USA, commercial surrogacy is prohibited in many states and in fact, the issue of surrogacy was largely publicized in the USA when the first dispute over custody between a surrogate and the intended parents was litigated and decided in New Jersey in the Matter of Baby M, a defining moment in modern surrogacy which brought surrogate motherhood to the forefront of American attention and spurred most US States to enact a legislation on surrogacy. In fact, an identical position was taken in the case of Surrogate Parenting Associates Inc. v. Commonwealth (704 S.W.2d 209, 214 (Ky. 1986). However, later the Supreme Court of New Jersey unanimously reversed this decision. In fact, as a reaction to the 'Baby M' case, several states, including New Jersey, New York, Michigan and Washington DC, banned paid surrogacy and declared surrogacy agreements to be invalid. However, in the year 2020, New York lifted its ban and legalized commercial surrogacy by passing the Child Parent Security Act along with Surrogates Bill of Rights which came into force with effective from February 15, 2021; additionally, Washington, DC, which also overturned its surrogacy ban, in effect since 1993. Similarly, most states in Australia and the Australian Capital Territory (ACT) recognize only altruistic surrogacy arrangements, subject to extensive and various requirements of their own legislations. For instance, in New South Wales, surrogacy arrangements are regulated by Surrogacy Act 2010, in South Australia, the Family Relationships Act 1975 governs surrogacy, and in the Australian Capital Territory (ACT), it is the Parentage Act 2004 which deals with surrogacy arrangements. In Canada and New Zealand, commercial surrogacy has been declared illegal since 2004, although altruistic surrogacy is permitted. In France, Germany, Hong Kong, Italy, Norway and Sweden, surrogacy, whether commercial or otherwise, is unlawful. In Iran, gestational surrogacy as a treatment for infertility is being practiced in some well-known medical institutions in Tehran and some other cities, etc. This book will provide a comprehensive coverage to various existing laws, policies and regulations which deal with surrogacy and also unravel the latest trends and developments from around the world as in recent years surrogacy has become common. It has been witnessed that each country’s different approach to surrogacy has subjected children so born, to the risk of statelessness, ambiguous legal parentage and identity crises in addition to denial of their basic rights; it also exposes the vulnerability of surrogates and the legal hurdles faced by intended parents in establishing their parenthood over the surrogate child. There being a wide range of judicial pronouncements, this book also attempts to analyze some of the significant cross-border disputes revolving around surrogacy and also explores briefly the jurisprudence of the European Court of Human Rights on matters of parentage and

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citizenship for children born of transnational surrogacy while highlighting the approach adopted to tackle those cases and lessons to be learnt by law makers. Speaking of India, due to cost-effectiveness and a variety of options available, India has gradually become a hub for people looking to choose surrogacy as an option since in India surrogacy is neither banned nor completely regulated. The highly publicized case of Baby Manji sparked an intense public debate on commercial surrogacy in India raising several questions with no clear answers. More importantly, it highlighted the need for an adequate legal framework for the ever-growing market of commercial surrogacy in India due to the fact that a large number of foreign nationals started eyeing India to fulfill their dream of becoming parents through surrogacy. The Law Commission of India also, in its 228th Report (2009) highlighted ART industry as 'Rs. 25,000 crore pot of gold' and focused on the need to make a legislation to regulate Assisted Reproductive Technology but recommended only altruistic surrogacy and not commercial. Indian government taking note of the same proposed various legislations from time to time, in addition to certain notifications/guidelines which were issued for the purposes of regulating the practice of surrogacy wherein the endeavor was always to protect the legal and human rights of various stakeholders involved in a surrogacy. Therefore, this book examines various measures taken by the Indian government for regulating surrogacy via a display of journey of various legislative measures proposed as well as in existence and will provide a review of the gaps from the perspective of various stake holders, viz. the surrogate mother, the surrogate child or the intended parents, in view of various significant cross-border cases. Since becoming a parent and rearing a family is a basic right of every human being, therefore, it is the prerogative choice of a couple or an individual to become or not to become a parent. Surrogacy being a sensitive industry should be well regulated so that a boon does not become a bane for mankind. A contextualized approach to reproductive autonomy instructs that if women wish to act as surrogates and if commissioning parents wish to form their families through the use of surrogacy, then these parties should be permitted to engage themselves in such arrangements. Speculative arguments and concerns including those based in morality or fears for the future of the family must not be permitted to take priority over autonomy based interests of those who seek to procreate through surrogacy arrangements. This book also analyzes the rights of homosexuals, transgenders, singles and live-in couples with respect to procreation and options for surrogacy in context of countries such as India, USA, UK, Australia, Israel, New Zealand, France and Canada. This book is an important contribution dealing with various legal and human rights issues raised by surrogacy while also looking at its proper regulation at a national and international level. Despite varied models being adopted globally, the concern which remains common to all is to prevent exploitation of the surrogate mother and to also ensure well-being of surrogate child along with putting into place, unambiguous parenthood rules. In this context, in India, which is also in process of legally regulating the practice with various bills on surrogacy been

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proposed from time to time, this book will suggest a robust regulatory framework laced with balanced approach drawing inspirations from the laws prevalent globally and at the same time laws emphasizing the need for a uniform international regulation with special reference to the study carried out by the Hague Conference on Private International Law. Delhi, India

Harleen Kaur

Contents

1 Introduction to Surrogacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Infertility and Role of Assisted Reproductive Technology (ART) Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1.1 Artificial Insemination (AI) . . . . . . . . . . . . . . . . . 1.1.2 In Vitro Fertilization-Embryo Transfer (IVF-ET) . 1.1.3 Gamete Intrafallopian Transfer (GIFT) . . . . . . . . 1.1.4 Zygote Intrafallopian Transfer (ZIFT) . . . . . . . . . 1.1.5 Intracytoplasmic Sperm Injection (ICSI) . . . . . . . 1.2 Surrogacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.1 Kinds of Surrogacy . . . . . . . . . . . . . . . . . . . . . . 1.3 Evolution of Surrogacy . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 Surrogacy: Issues and Complexities Involved . . . . . . . . . . 1.4.1 Legal Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.2 Moral and Ethical Issues . . . . . . . . . . . . . . . . . . . 1.5 Advantages of Surrogacy Over Other Forms of ART . . . . 1.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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2 Surrogacy: Laws and Policies Across the Globe . . . . . . . . . . . . . 2.1 Israel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.1 The Evolution of the Law . . . . . . . . . . . . . . . . . . . . 2.1.2 Embryo Carrying Agreements (Authorization Agreement & Statutes of the Newborn Child) 1996 . 2.2 Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 The Evolution of the Assisted Human Reproduction Act 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 Contract Law and Surrogacy . . . . . . . . . . . . . . . . . . 2.2.3 Family Law and Surrogacy . . . . . . . . . . . . . . . . . . . 2.3 Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Queensland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 South Australia . . . . . . . . . . . . . . . . . . . . . . . . . . .

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2.3.3 Tasmania . . . . . . . . . . . . . . 2.3.4 Victoria . . . . . . . . . . . . . . . 2.3.5 Western Australia . . . . . . . . 2.3.6 New South Wales . . . . . . . 2.3.7 Australian Capital Territory 2.4 United Kingdom . . . . . . . . . . . . . . . 2.5 Singapore . . . . . . . . . . . . . . . . . . . . 2.6 Ukraine . . . . . . . . . . . . . . . . . . . . . 2.7 Japan . . . . . . . . . . . . . . . . . . . . . . . 2.8 United States of America . . . . . . . . 2.9 New Zealand . . . . . . . . . . . . . . . . . 2.10 Russia . . . . . . . . . . . . . . . . . . . . . . 2.11 Thailand . . . . . . . . . . . . . . . . . . . . . 2.12 Nepal . . . . . . . . . . . . . . . . . . . . . . . 2.13 Other Countries . . . . . . . . . . . . . . . 2.14 Conclusion . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . .

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3 Surrogacy in India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Reproductive Tourism in India . . . . . . . . . . . . . . . . . . . . . . . 3.2 Regulation and Enforceability . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Constitutional Protection . . . . . . . . . . . . . . . . . . . . . . 3.2.2 The Indian Contract Act, 1872 . . . . . . . . . . . . . . . . . 3.3 The Indian Council of Medical Research, National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 The Law Commission of India 228th Report on ‘Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy.’ (August 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 The Assisted Reproductive Technology (Regulation) Bill, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.1 Features of the Draft ART Bill, 2010 . . . . . . . . . . . . 3.5.2 Critical Analysis of the Draft ART Bill, 2010 . . . . . . 3.6 Ministry of Home Affairs New Visa Regulations for People Seeking Surrogacy Issued on July 9, 2012 . . . . . . . . . . . . . . . 3.7 The Ministry of Health and Family Welfare Instructions to Prohibit Commercial Surrogacy in India Vide Letter Dated 4.11.2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8 The Assisted Reproductive Technology (Regulation) Bill, 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9 The Surrogacy (Regulation) Bill, 2016 . . . . . . . . . . . . . . . . . . 3.9.1 Features of the Surrogacy (Regulation) Bill, 2016 . . . 3.9.2 General Weakness, Ambiguities and Contradictions of the Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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3.10 102nd Report of the Parliamentary Standing Committee on the Surrogacy (Regulation) Bill, 2016 . . . . . . . . . . . . . . . . . . . . . . . 3.11 The Surrogacy (Regulation) Bill, 2019 . . . . . . . . . . . . . . . . . . . . 3.12 Recommendations of the Select Committee on the Surrogacy (Regulation) Bill, 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.13 The Surrogacy (Regulation) Bill, 2020 . . . . . . . . . . . . . . . . . . . . 3.13.1 Features of the Surrogacy (Regulation) Bill, 2020 . . . . . 3.13.2 Drawbacks of the Surrogacy (Regulation) Bill, 2020 . . . . 3.14 Judicial Approach in India Toward Cross-Border Surrogacy Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.15 Recent Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.16 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Surrogacy Arrangements: The Stakeholders Perspectives . . . . . . . 4.1 From the Perspective of Surrogate Mother Concerns . . . . . . . . 4.2 Proposed Surrogacy Bills in India Vis-a-Vis Rights of the Surrogate Mother . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 The Surrogacy (Regulation) Bill 2016 . . . . . . . . . . . . 4.2.2 102nd Report of the Parliamentary Standing Committee on the Surrogacy (Regulation) Bill 2016 . 4.2.3 The Surrogacy (Regulation) Bill 2019 . . . . . . . . . . . . 4.2.4 The Surrogacy (Regulation) Bill 2020 . . . . . . . . . . . . 4.3 From the Perspective of Surrogate Child Concerns . . . . . . . . . 4.3.1 Cross-Borders Surrogacy Cases . . . . . . . . . . . . . . . . . 4.3.2 Trafficking, Physical Abuse and Abandonment of the Surrogate Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Proposed Surrogacy Bills in India Vis-a-Vis Rights of the Surrogate Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.1 Indian Council for Medical Research Guidelines (ICMR), 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.2 The Assisted Reproductive Technology (Regulation) Bill, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.3 228th Law Commission Report on Surrogacy . . . . . . 4.4.4 The Assisted Reproductive Technology (Regulation) Bill, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.5 The Assisted Reproductive Technology (Regulation) Bill, 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.6 The Surrogacy (Regulation) Bill 2016 . . . . . . . . . . . . 4.4.7 102nd Parliamentary Standing Committee Report on Surrogacy (Regulation) Bill, 2016 . . . . . . . . . . . . . . . 4.4.8 The Surrogacy (Regulation) Bill 2019 . . . . . . . . . . . . 4.4.9 The Surrogacy (Regulation) Bill 2020 . . . . . . . . . . . . 4.4.10 Recent Judicial and Legislative Developments in India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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4.5

From the Perspective of Intended Parents . . . . . . . . . . . . . . . . . . 4.5.1 Intended Parents and Their Right to Procreation in India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6 Proposed Surrogacy Bills in India Vis-a-Vis Intended Parents . . . . 4.6.1 The Surrogacy (Regulation) Bill, 2016 . . . . . . . . . . . . . 4.6.2 102nd Report of the Parliamentary Standing Committee on the Surrogacy (Regulation) Bill 2016 . . . . . . . . . . . . . 4.6.3 Recommendations of the Select Committee on the Surrogacy (Regulation) Bill, 2019 . . . . . . . . . . . . . . . . . 4.6.4 The Surrogacy (Regulation) Bill, 2020 . . . . . . . . . . . . . 4.7 Model Surrogacy Agreement Expected in India . . . . . . . . . . . . . 4.8 Need of an International Regulation for Surrogacy . . . . . . . . . . . 4.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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5 Homosexuals, Third Genders, Live in Couples, Singles and Their Right to Surrogacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Right to Procreation as a Human Right . . . . . . . . . . . . . . . . . 5.2 Homosexuals, Third Genders, Live-In Couples, Singles and Their Right to Surrogacy: (I) International Scenario . . . . . 5.2.1 Israel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.4 Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.5 Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.6 Thailand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.7 Nepal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.8 Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.9 Russia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.10 New Zealand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 National Scenario: India . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 Homosexuals/Transgender Persons and Their Right to Surrogacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 Live-In Couples and Their Right to Surrogacy . . . . . . 5.3.3 Singles and Their Right to Surrogacy . . . . . . . . . . . . 5.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Reports/Guidelines/Statutes/Conventions/Treaties and Agreements . . . . . 231

About the Author

Dr. Harleen Kaur is an Assistant Professor of Law at Campus Law Centre, Faculty of Law, Delhi University. She holds an LL.B. (Gold Medalist) and LL.M Degree from the Faculty of Law, University of Delhi. She obtained her Ph.D. from the Faculty of Law, University of Delhi. She is a recipient of various awards such as Gold Medal Hiralal Daga Memorial Medal, P. G. Krishnan Memorial Prize, Law Union Prize for securing first position in order of merit in three consecutive years of LL.B. and G. Pershad Memorial Prize for B.A. (Pass) in Miranda House, University of Delhi in addition to the Academic Excellence Award for the year 2019 by Iswar Saran Post Graduate College (University of Allahabad) and Droit Penale: Indian Law Journal On Crime And Criminology, Legal Path Foundation. She has to her credit many papers, on diverse legal issues, published in reputed journals. She has also authored chapters in various books. Her areas of interest are criminal law (IPC and CrPC), property law and human rights and surrogacy. Dr. Harleen has delivered numerous lectures at various prestigious institutions and universities. She has also chaired sessions in national and international workshops, conferences, seminars and is on the editorial boards of law journals.

xvii

Abbreviations

A.2d ACHPR ACHR ACRWC ACT AI AID AIDS AIH AIHC AIR All E.R ALT AP ART art. ASRM BBA CAI Cal App. Rept Cal. Rptr 2d CanLII CARA CEDAW COCA CPC CPCR CPSA CRC

Atlantic Reporter, Second Series African Charter on Human and People’s Right American Convention on Human Rights African Charter on the Rights and Welfare of the Child Australian Capital Territory Artificial Insemination Artificial Insemination Donor Acquired Immune Deficiency Syndrome Artificial Insemination Homologous or Husband All India High Court Cases All India Reporter All England Law Reports Andhra Law Times Andhra Pradesh Assisted Reproductive Technology Article The American Society for Reproductive Medicine Bachpan Bachao Andolan Confused or Combination Artificial Insemination California Appellate Report California Reporter, Second Series Canadian Legal Information Institute Central Adoption Resource Agency Convention on the Elimination of All Forms of Discrimination Against Women Care of Children Act Civil Procedure Code Commissions for Protection of Child Rights The Child Parent Security Act Convention on the Rights of Child

xix

xx

Cri. LJ DLR DRC e.g. ECAC ECECR ECHR ed. edn. EPW ESCR ET etc Eur. Ct. H.R EWHC F.2d FCU FIR FPRO FRO GIFT GNP Harv. L. Rev HCCH HCJ HFEA HIV HMGA HRTC Ibid ICCPR ICCW ICI ICMR ICS ICSI ie. Ind L.J. IPC IUI IVF IVF-ET JILI JSOG

Abbreviations

Criminal Law Journal Dominium Law Reports Declaration on the Rights of the Child Exempli Gratia (for the sake of example) European Convention on the Adoption of Children European Convention on the Exercise of Children’s Rights European Court of Human Rights Edited Edition Economic and Political Weekly Economic Social and Cultural Rights Embryo Transfer et. cetera European Court of Human Rights High Court of Justice England and Wales Federal Reporter, Second Series Family Code of Ukraine First Information Report Federal Provincial Relations Office Family Responsibility Office Gamete Intra Fallopian Transfer North Gauten High Court Harvard Law Review Hague Conference/Conference de la Haye (Hague Conference) High Court of Justice Human Fertilization and Embryology Act Human Immuno Deficiency Virus Hindu Minority and Guardianship Act Human Reproductive Technology Council Ibidem (in the same place) International Covenant on Civil and Political Rights Indian Council for Child Welfare Intra Cervical Insemination Indian Council for Medical Research International Commercial Surrogacy Intra Cytoplasmic Sperm Injection id est (that is ) Indiana Law Journal Indian Penal Code Intrauterine Insemination In Vitro Fertilization In Vitro Fertilization and Embryo Transfer Journal of Indian Law Institute Japan Society of Obstetrics and Gynecology

Abbreviations

Kar LJ KLT KY LGBTQI+ Mad LJ MHA MLJ MTP N.E.2d N.J N.W.2d N.Y N.Y.S NAMS NCC NCPCR NGO NHMRC NRIs NSB NSW OCIs P Pa. Super. Ct Para PIL PIOs PNDT POCSO QLD RTAC RTE RWA s. S.A. S.W.2d SA SAARC SC SCC SCJ SCPCR Sess.Cas. SGHCF

xxi

Karnatka Law Journal Kerala law Times Kentucky Lesbian, Gay, Bisexual, and Transgender, Queer, Intersex etc. Madras Law Journal Ministry of Home Affairs Malayan Law Journal Reports Medical Termination of Pregnancy North Eastern Reporter, Second Series New Jersey Reports North Western Reporter, Second Series New York Reports New York Supplement National Academy of Medical Research National Council for the Child. National Commission for the Protection of Child Rights. Non-Governmental Organization National Health and Medical Research Council Non-Resident Indians National Surrogacy Board New South Wales Overseas Citizens of India Page Superior court of Pennsylvania Paragraph Public Interest Litigation Persons of Indian Origin Pre Natal Diagnostic Techniques Protection of Children from Sexual Offences Queensland Reproductive Technology Accreditation Committee Right To Education Residents Welfare Association Section San Antonio South Western Reporter, Second Series South Africa South Asian Association for Regional Cooperation Supreme Court Supreme Court Cases Science Council of Japan State Commissions for Protection of Child Rights Session Case Singapore High Court (Family Division)

xxii

SLP SOCA SPA ss. SSB Supra Tenn Tex. Int’l L.J U. Cin. L. Rev. U. Pa. J. Int’l L. U.S.L.W UDHR UK UNCRC UNDRC v. WA Wash & Lee L. Rev WFCLO Wis. L. Rev ZIFT

Abbreviations

Special Leave Petition Status of Children Act Surrogate Parenting Associate Sections State Surrogacy Boards Above Tennessee Report Texas International Law Journal University of Cincinnati Law Review The University of Pennsylvania Journal of International Law United States Law Week (publication) Universal Declaration of Human Rights United Kingdom United Nation Convention on the Rights of the Child United Declaration on the Rights of the Child Versus Western Australia Washington and Lee Law Review Worst Forms of Child Labour Convention Wisconsin Law Review Zygote Intra Fallopian Transfer

List of Cases

A v P [2011] EWHC 1738 (Fam) A.D.T v. The United Kingdom, 35765/97 [2000] ECHR 402 Abhijit Iyer Mitra v. Union of India W.P. (C) 6371/2020 Anonymous v. Anonymous N.Y.S. 246 2d 835 (Sup.Ct.1964) B. K. Parthasarathi v. State of Andhra Pradesh, AIR 2000 A.P. 156 Baby M 537A. 2d 1227 (N.J.1988) Baby Manji Yamada v. Union of India AIR (2008) 13 SCC 518 Balaz v. Anand Municipality, no. 3020, Special Civil Application, Oral Order ( GUJ HC II November 2009) Belsito v. Clerk 644 NE 2d 760 (1994) Bowers v. Hardwick 478 U.S. 186 (1986) Buzzanca v. Buzzanca, 61 Cal App 4th 1410, 72 Cal Rptr 2d 280 (Cal Ct App) Culliton v. Beth Israel Deaconess Medical Center, 435 Mass 285 (2001) D. Veluswami v. D. Patchaiammal, AIR 2011 SC 479 Davis v. Davis 842 S.W.2d 588, 591 (Tenn. 1992) Doornbos v. Doornbos139 N.E. 2d 844 (1956) Dr. Hema Vijay Menon v. State of Maharashtra WP No.3288, decided on 22 July, 2015 Dudgeon v. United Kingdom 45 Eur. Ct. H.R. (ser. A) (1981) Elkapalli Latchaiah v. Government of Andhra Pradesh, 2001 (5) ALT 410 Ex Parte WH (2011) 6 SA 514 (GNP) para 67 Francis Coralie Mullin v. the Administration, Union Territory of Delhi (1981) 1SCC 608 Gursky v. Gursky 242 NY.S.2d 406 (Sup. Ct. 1963) Hodas v. Morin, 442 Mass 544 (2004) Huddlestone v. Infertility Centre of America Inc. 700 A.2d 453 (Pa. Super. Ct. 1997) Itai Arad-Pinkas et. al. v. The Authorization Committee for Agreements for Carrying Fetuses et. al. (27.2.20).HCJ 781/15 Supreme Court of Israel Jan Balaz v. Anand Municipality and Ors, AIR 2010 Guj. 21 Jayashree Wad v. Union of India, Writ Petition 95 of 2015 xxiii

xxiv

List of Cases

Jaycee B v. Superior Court 42 Cal. App. 4th 718 (1996) JF v. DB, 879 NE 2d 740 (2007) Johnson v. Calvert5 Cal. 4th 84, 851 P.2d 776 (1993) Joseph Shine v. Union of India (2018) 2 SCC 189 K. Kalaiselvie v. Chennai Port Trust 2013 (2) KLT 567 K. S. Puttaswamy v. Union of India 2017 10 SCC 1 Kharak Singh v. State of U.P AIR 1963 SC 1295 Lawrence v. Texas 539 U.S. 558 (2003) Maclennan v. Maclennan Sess. Cas. 105 (1958) Matter of Baby M, case 537 A2d 1227 (NJ 1988) Modinos v. Cyprus 259 Eur. Ct. H.R. (ser. A) (1993) Nachmani v. Nachmani 50(4) P.D. 661 (Isr.) 1996 National legal Services Authority v. Union of India (2014) 5 SCC 438 Navtej Singh Johar v. Union of India AIR 2018 SC 4321 Naz Foundation v. Government of NCT of Delhi, (2010) Cri. L.J. 94 Norris v. Ireland, 142 Eur. Ct. H.R. (ser. A) (1988) Obergefell v. Hodges 83 U.S.L.W. 4592 (June 26, 2015) Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 Orford v. Orford 58 D.L.R.251 (1921) P Geetha v. The Kerala Livestock Development Board Ltd 2015 (1) KLJ 494 People v. Sorensen 68 Cal, 2d 280 (1968) Pooja Jignesh Doshi v. State of Maharashtra, 2019 SCC online Bom 1433 Public Prosecutor v. Dato’ Seri Anwar Bin Ibrahim (2001) 3 M.L.J. 193 Quebec (Attorney General) v. A. 2013 SCC R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264 R.: IJ (A Child) [2011] EWHC 291 (Fam) R.E.L. v. E.L 1All E.R.141 (1949) Rama Pandey v. Union of India, 2015 SCC online Del 10484 Rasiklal Chhagalal Mehta v. Unknown AIR 1982, Guj. 193 Re S (Parental order) [2009] EWHC 3146 (Fam), [2010] 1 FLR 1156 Re X (A Child) (Surrogacy: Time Limit) [2014] E.W.H.C. 3135 (Fam) Re X and Y (foreign surrogacy) [2008] EWHC 3030 (Fam) Re X [2020] EWHC 39 Re Z (No. 2) (2016) EWHC 1191 (Fam) Re: A (Surrogacy s. 54 Criteria) [2020] EWHC 1426 (Fam.) Re: L (A Minor) [2010] EWHC 3146 (Fam) Roe v. Wade 410 U.S. 113 Skinner v. Oklahoma 316 U.S. 535 (1941) Slater v. Slater 1 All ER 246 (1953) Stephanie Joan Becker v. State (2013) 12 SCC 786 Strand v. Strand 78 N. Y.S. 2d 390 (1948) Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1 Sunil Babu Pant v. Nepal Government Writ No. 917 of the year 2064 BS (2007 AD) Supreme Court of Nepal, Case 072-WO-0119 (July 14, 2016) (Nepal)

List of Cases

xxv

Suresh Kumar Koushal v. NAZ Foundation, (2014) 1 SCC 1 Surrogate Parenting Associates, Inc. v. Armstrong 704 S.W.2d 209 (KY1986) Sushma Devi v. State of Himachal Pradesh and others CWP No. 4509 of 2020 UKM v. Attorney-General [2018] SGHCF 18 Union of India & Another v. Jan Balaz and others. Special Leave to Appeal (civil) No. 31639, Supreme court of India, 2009) Union of India & Anr v. Jan Balaz and Others, Civil Appeal No. 8714/2010 Order dated 25 Nov 2009) Veluswami v. D. Patchaiammal AIR 2011 SC 479 Woodward v. Commissioner Woodward, 760 N.E. 2d at 259

Chapter 1

Introduction to Surrogacy

1.1

Infertility and Role of Assisted Reproductive Technology (ART) Procedures

A very delicate issue which constantly revolves around human life is ‘fertility’. While sterile men are often ridiculed as not being ‘manly’ enough, women who are unable to conceive face social wrath and apathy. Many mock them by saying that they are unable to perform the role given to them by nature.1 Reproduction is a natural instinct of living beings, and humans are no exceptions to this.2 It is the urge of every married couple to procreate and extend their family lineage. Social security in old age is also another factor which gives a boost to this urge. Apart from these chief reasons, there are religious reasons as well. For example, a Hindu strives for a male child for funeral rites, and salvation for Muslim children is Sadqa-e-Jariah (Sawab goes to the lineal ascendants).3 During the last two decades, the advancement in science and technology has not only enabled mankind to restrict and control birth rate by the use of contraceptives but has also enabled childless couples to become parents through the device of artificial insemination, i.e., transmission of male seeds into the female body artificially through a syringe.4 The science revolving around reproduction has undergone a sea change and has, in fact, witnessed an exceptional revolution which began in the 1960s with the development of contraceptives that separated reproduction from sexual intercourse. Of late, this revolution has witnessed the development of reproductive technologies which now allows reproduction without the usual traditional intercourse between partners. Simply put, these technologies have made it increasingly possible to procreate without the necessity of heterosexual copulation. Modern-day science has thus 1

Montgomery (2003). Diwan (1980). 3 Ansari (1995). 4 Rose (1999). 2

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 H. Kaur, Laws and Policies on Surrogacy, https://doi.org/10.1007/978-981-16-4349-1_1

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1 Introduction to Surrogacy

added to the natural means of producing children, the skill of artificial insemination (AI), the technique normally grouped under the caption ‘Assisted Reproductive Technologies’.5 Any procedure or method designed to enhance fertility or to compensate for infertility outside the traditional means of procreation can be labeled as Assisted Reproductive Technology. The term Assisted Reproductive Technology has been defined under Section 2(c) of the Draft Assisted Reproductive Technologies Bill, 2014 as ‘all techniques that attempt to obtain a pregnancy by handling or manipulating the sperm or the oocyte outside the human body, and transferring the gamete or the embryo into the reproductive tract of a woman’.6 These technologies which began (in the Western countries, notably the USA, UK and Australia) as far back as the 1960s have developed rapidly from the easiest, less intricate and primitive of all, i.e., artificial insemination (Al) to more sensitive and controversial techniques like in vitro fertilization (IVF) and cryopreservation, egg and sperm donation, surrogacy and more recently cloning.7 The development of these technologies, it must be noted, was a direct medical response to the problems of infertility. This development is indeed a great victory for modern medicine and a huge relief for couples, who are not only childless, but face the increasing difficulties and societal hostilities toward adoption. While ART represents one possible option for the infertile heterosexual couples, it is generally the only option for gay couples and single parents seeking to reproduce.8 The advent of ART has contributed to a significant increase in number of lesbian and gay individuals choosing to raise genetically related children.9 Because of these technologies, couples or single persons now will not only have an opportunity to have a child that is genetically connected to them, but such a feat can now be achieved without the necessities of marriage, intercourse or even the carrying of pregnancy. The media continually report stories of biological miracles women past menopause having children, infertile men becoming fathers and homosexuals having babies.10 However, these advances in medicine, as it may be imagined, have not been free from moral and indeed legal difficulties. The Assisted Reproductive Technology by its very nature challenges conventional notions. The success of these technologies has today brought about a plethora of vexing and controversial, legal questions to which answers are not readily available. At every turn, they generate questions and serious debates about the nature and meaning of the family, the welfare of the children, the treatment of women, the moral status of embryos, the value of human life, the sanctity of natural procreation and the

5

Koyonda (2001). Draft Assisted Reproductive Technologies Bill, 2014. Available at https://www.prsindia.org/ uploads/media/draft/Draft%20Assisted%20Reproductive%20Technology%20(Regulation)%20Bill, %202014.pdf. Accessed April 8, 2018. 7 Koyonda, Supra note 5. 8 Goldstein and Okinaga (2001–2002). 9 De Lair (2000). 10 Deech (1996–1998). 6

1.1 Infertility and Role of Assisted Reproductive Technology (ART) …

3

legitimacy of reproductive rights. With the aid of such technology, persons outside the family are introduced to the breeding process giving rise to a question regarding rights of all the parties involved in such procreation process. Therefore, there is an urgent requirement to change the traditional and societal understanding of the term ‘mother’, ‘father’ and ‘child’ which has otherwise been, since times immemorial, always plain and simple. In surrogacy arrangements, there is one a ‘genetic’ mother —the woman responsible for providing the egg that is ultimately fertilized; the ‘carrying’ or ‘gestational’ mother—the woman whose womb is used to carry the fetus until it develops to term; and finally the ‘nurturing’ ‘social’ mother—the woman who perhaps commissioned the entire procreation contract and raises the child after it is born. With the advancement in science, today even fathers have been duplicated. A sperm donor whose sperm is used to fertilize the egg of the woman who may be wife of another man may legally claim to be the genetic father of the child so born using his sperm. This situation raises unsettled questions of parental rights, obligations of parents, rights of the children and most important for the well-being of the child apart from question relating to his/her legitimacy. Beside this flip side of ART is the issue of multiple births associated with an increased health risk for both the mother and the infant. Women with multiple gestation pregnancies face an increased risk of having maternal complications such as hemorrhage and hypertension. Infants born in multiple birth delivery are at an increased risk of prematurity, low birth weight, infant mortality and long-term disability.11 In addition to this, another troublesome question which arises is the constitutionality or perhaps the legality of ART process. The availability of the current technologies makes it possible for people without fertility problems who ordinarily can conceive in a normal heterosexual copulation to opt any of the techniques and thereby make use of it in order to avoid undergoing through the natural biological process. The advancement in ARTs makes it increasingly possible that in distant future, children will be raised with the help of these technologies by parents with little or no genetic nexus to such children. The resultant sequences of this development may lead to a ban or regulation of these scientific advances. The crux of the matter is the dilemma of people who may never conceive or bear children without aid of any of these techniques; will a ban on these techniques affect or a bridge their procreation liberty by the only means possible? Close to this another question is whether the techniques can be made available to gay and lesbian couples and, or any person desirous of having a child. Other vexing questions that come to mind are whether a nexus exists between marriage and parenthood? Should people be compelled to marry before allowing them, to avail the option of these technologies? The answers to these questions raise the fundamental nature of’ the issue of procreative liberty. An abridgement of one’s procreative choice on grounds of marriage or sexual preference or for refusal to get married may seem discriminatory and

11

Assisted Reproductive Technology Surveillance-United States 2005 (2012). Available at https:// www.cdc.gov/mmwr/preview/mmwrhtml/ss5705a1.htm. Accessed 17 May 2019.

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1 Introduction to Surrogacy

controversial. As strong doubts can be expressed regarding the legality of these technologies, it is but natural that the legal status of children born via these practices will also be uncertain. It is not exactly clear whether such children can lay claim to be the legitimate children of their social/ nurturing parents and where they are declared to be illegitimate, their succession rights may be severely hampered especially in case where such social/nurturing parents die intestate. Since there are various Assisted Reproductive Technology procedures in use today owing to different biomedical difficulties faced by couples, some of them have been discussed in detail below.

1.1.1

Artificial Insemination (AI)

Artificial insemination is the introduction of semen in a woman vagina or uterus other than by sexual intercourse.12 The semen can be obtained via a known donor or it can be purchased from a sperm bank and the procedure can be performed at the sperm bank, at doctor’s office or at individual own home.13 Artificial insemination can be practiced in three ways. First technique comprises artificial insemination with husband sperm and is known as artificial insemination homologous or husband (AIH) in which case the semen is injected into the female’s uterus (intrauterine insemination) or cervix (intracervical insemination) or fallopian tube (intratubal insemination) using artificial means rather than by copulation of her husband. Artificial insemination using the sperm from woman’s husband is commonly used to assist in overcoming the cervical barrier.14 In the second type, semen is that of a third-party donor and is known as artificial insemination donor (AID). This is resorted to normally, when the husband is sterile or suffering from some hereditary disease, etc.15 The third kind of artificial insemination, which is not very popular, is one in which the seed of the husband and that of a third party is co-mingled. This is known as combination artificial insemination (CAI) and is not popular in India as yet. One of the oldest ‘new’ assisted technologies is ‘artificial insemination’, the history of which can be traced as early as 1322 when Arabs used to successfully bred mares. The Arabs used to artificially impregnate the superior mares of their enemies with the sperms of inferior horses, and it was from this time onwards that successful experiments were also made on fish and other animals and which trend continued till the middle of sixteenth century. In so far as human beings are concerned, it was Dr. John Hunter, an English Physician, who is credited with carrying

12

Goldstein & Okinaga, Supra note 8 at 410. Also see s.2(b) Draft Assisted Reproduction Bill, 2014. 13 De Lair, Supra note 9 at 149. 14 Garrison (2000). 15 Id., 845.

1.1 Infertility and Role of Assisted Reproductive Technology (ART) …

5

out the first successful artificial insemination in a human in the late eighteenth century. Dr. John Hunter successfully inseminated a married woman with the sperm of her husband. Later in the year 1890, Dr. Robert L. Dickinson carried out this procedure with the help of donor semen and it was finally in the twentieth century that recourse to artificial insemination was taken for procreation requirements.16 Artificial insemination can overcome female infertility problems as well as male infertility issues. However, when the woman receives semen not from her husband but from a donor (known or unknown), then it may have wide ramifications by giving rise to various legal problems such as whether artificial insemination leads to adultery on the part of the wife? Whether it amounts to consummation of marriage? Whether a child born through this is legitimate? What are the custodial and visitation rights of the father? Is the father bound to maintain such a child?

1.1.1.1

Legal Issues Involved

(I) Amounting to Adultery? Introduction of something spurious is adulteration. Since AID has the potentiality of introducing into the husband’s family, a ‘spurious’ child, it has been argued by some that AID amounts adultery. The question here that arises is as to what constitutes adultery? Is sexual intercourse a necessary ingredient of adultery? What constitutes sexual intercourse? Is penetration a necessary ingredient? And so on. (a) Judicial Responses The issue whether artificial insemination amounts to adultery was raised for the first time in a Canadian Court in Orford v. Orford17 In this case the marriage was not consummated because of some physical affliction of the wife. The wife, however, gave birth to a child. The husband accused the wife of adultery, while he stayed in Canada and she was in England. According to the wife, she had resorted to artificial insemination as the doctors had advised her that the only way she could be cured of the affliction was bearing a child and that it might be done artificially. The Court disbelieved the story and came to the finding that the wife had sexual intercourse in the ordinary way. It, however, dealt with the aspect of artificial insemination also and observed sexual intercourse is important in adultery because it brings into the family of husband a false strain of blood. Any act on the part of wife which does that, i.e., bringing a false strain of blood into the family of husband would, therefore be adulterous whether this was done by natural means or accomplished in any other manner (AID). Therefore, artificial insemination without the consent was declared adultery.

16

Saini (2015). 58 D.L.R.251 (1921).

17

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1 Introduction to Surrogacy

The question came up for the consideration again in the Scottish Court of Session at Edinburgh in Maclennan v. Maclennan.18 The husband filed a petition for divorce on the ground of his wife’s adultery. The wife alleged that the child she gave birth to was conceived by artificial insemination. The husband contended that AID was adultery in the eye of law and also that he did not consent to his wife’s impregnation. The Court, however, conceded that a married woman committed a grave and heinous offense against the marriage contract by submitting to artificial insemination without her husband’s consent, nevertheless, this according to the Court, was a matter in respect of which the legislature should determine an appropriate remedy. In a preliminary judgment, the Court held that AID would not constitute adultery in law but adjourned the case for verification of AID by the wife. The wife declined to provide the necessary information and the Court held that she had committed adultery. After considering a few English cases, the Court derived the following propositions, viz: (1) For adultery to be committed there must be two parties physically present and engaging in the sexual act at the same time. (2) To constitute sexual intercourse there must be union involving some degree of penetration by the male organ into the female organ. (3) It is not necessary that male seed should be deposited in the female’s ovum and only then it will constitute adultery. (4) The placing of the male seed in the female ovum need not necessarily result from the sexual act, and if it does not, but is placed there by another means, there is no sexual intercourse. Thus, point (4) made it clear that AID with artificial means is not adultery. The Court also considered that if AID were deemed to be adultery, the question would arise whether the donor whose seed has been used is also guilty of adultery. If that be so, at what point of time, adultery is committed? If adultery is deemed to take place at the time of the parting of the seed or the crucial time is the time when the seed is injected into the woman’s body, then in case this is done after the donor’s death? (as the seed can be preserved for some time), the woman’s conduct would constitute not only adultery-but necrophilism. Such a proposition, according to the Court, would be absurd. In view of all this, it found that artificial insemination by donor does not constitute adultery. The decision of Lord Wheatly in the above case became the subject of debate in the House of Lords in February 1958.19 As a result of which a departmental committee was appointed in September to enquire whether, and if so, what changes in the law were necessary, in view of this practice. The committee expressed the view that a clear distinction be drawn between artificial insemination and adultery. It endorsed the view of the Royal Commission

18

Sess. Cas. 105 (1958), Klayman (1970). 207 Parliamentary Debates (Lords) 926–1016 (1957–58).

19

1.1 Infertility and Role of Assisted Reproductive Technology (ART) …

7

on Marriage and Divorce (1951–1955) that artificial insemination of the wife without the consent of her husband be made a new and separate ground of divorce or judicial separation. Talking about India, the question of adultery, as a result of AID, does not arise because as per section 497 of the Indian Penal the following essential ingredients must exist to make out a case of adultery: • The accused must have had sexual intercourse with a woman. • That woman referred to above must be the wife of another person. • The accused must have known or should have reason to believe that the other party was the wife of another person. • The sexual intercourse should not amount to rape. • The act must have been performed without the consent or connivance of the husband. Even under the Hindu Marriage Act, 1955, in the absence of any special definition, ‘Adultery means consensual sexual intercourse between married person and another person of the opposite sex during the subsistence of the marriage.’ It may be pointed out that from a physician’s point of view also the two, i.e., adultery and artificial insemination, are different. The object of an adulterous act is carnal pleasure and emotional and physical satisfaction. These are missing in artificial insemination which is resorted to for the purpose of getting an offspring. In fact, they are antithesis of each other. While in artificial insemination, the only purpose is procreation, i.e., it is not a sexual but a professional and therapeutic act, in the case of adultery, it is only sensual pleasure alone and if pregnancy results, it is normally unsolicited. The reason why adultery has been made an offense or a ground for divorce appears to be the risk of pregnancy involved in the act. Besides, it disturbs marital peace and is an invasion of the right of a spouse to have exclusive sexual pleasure from the other. However, in the year 2018, in the case of Joseph Shine v. Union of India,20 wherein Joseph Shine, a non-resident Keralite, had filed a public interest litigation under Article 32 of the Constitution of India challenging the constitutionality of the offense of adultery under Section 497 of the IPC, the Apex Court of India, i.e., the Supreme Court with its five-judge Bench judgment unanimously struck down this 158-year-old law and thereby decriminalized adultery on the ground of its being violative of Articles 14 (equal protection of laws), Article 15(1) (non-discrimination on grounds of sex) and also Article 21 (The right to privacy and personal liberty) of the Constitution of India, 1950. While upholding women’s rights to bodily integrity, individual choice and personal autonomy not just against the State, but also within the context of home and family, the Section was declared as archaic and unconstitutional. However, it is pertinent to mention here that the Supreme Court in this case has very clearly held that adultery remains a ground for civil wrong including dissolution of marriage, but not a criminal offense.

20

(2018) 2 SCC 189.

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1 Introduction to Surrogacy

This issue has also been settled by the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (2005) promulgated by Indian Council of Medical Research21 which provide that ART opted by a married woman with the consent of her husband would not amount to adultery on the part of the wife or the donor. However, AID without the husband consent can be a ground for divorce or judicial separation.22 (II) Tantamount to Consummation of Marriage? Another legal issue that stems from the practice of AID is whether AID is tantamount to consummation of marriage, in a case when a wife resorts to AID (whether it is successful or not is a separate issue) and later seeks to avoid marriage on the ground of non-consummation or impotency of the husband? (a) Judicial Responses The issue whether artificial insemination amounted to consummation of Marriage or not was raised before the Courts on various occasions and can be discussed as underIn R.E.L. v. E.L.23 a wife whose husband was unable to consummate the marriage because of psychological infirmity was artificially inseminated with her husband’s seed. This process spread over a period of twelve months. A few weeks after an insemination, the wife, unaware that she was pregnant, left the husband. The child was subsequently born. The wife filed a suit for nullity of the marriage. The Court held that the conduct of the wife in allowing herself to be artificially inseminated with her husband’s seed and the conception of the child did not necessarily lead to approbation of marriage and as such, went on to declare that the marriage had not been consummated thereby rendering the status of the child so born as illegitimate. The issue whether artificial insemination amounted to consummation or not was raised again in Slater v. Slater.24 In this case AID was resorted to but was unsuccessful and ultimately, a child was adopted. It was held that the attempted insemination could not constitute consummation and that the doctrine of approbation could not be applied to defeat the wife’s claim despite the insemination and adoption. In India, law is silent on this issue, i.e., whether AIH and AID lead to consummation of marriage or not? If AIH leads to consummation, then impotency of husband should not be made ground for divorce in a case where the husband consents and child is born by AID. Marriage should then be treated to be consummated and neither husband nor wife should be allowed to plea

21

ICMR (2005). Available at https://main.icmr.nic.in/sites/default/files/art/ART_Pdf.pdf. Accessed June 8, 2018. 22 Id., para 3.16.2. 23 1All E.R.141 (1949). 24 1All.E.R.246 (1953).

1.1 Infertility and Role of Assisted Reproductive Technology (ART) …

9

non-consummation. But if she has not taken consent and resorted to AID, then husband should not be deprived of the plea of non-consummation of marriage. The National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (2005) promulgated by Indian Council of Medical Research further provides that mere conception via the method of AIH doesn’t mean the marriage has been consummated. On the contrary, the marriage can still be nullified on the ground of impotency of the husband.25 In India, the question whether artificial insemination amounts to consummation of marriage has to be answered in the context of the personal laws prevalent. For instance, under the Parsi Marriage and Divorce act, 1936, denial by the respondent to consummate the marriage for a period of 1 year from the date of marriage, becomes a ground for divorce.26 Also, on the same ground, with no specific time limit either party can sue for a decree of annulment of marriage under the Special Marriage Act, 1954.27 On the other hand, under the Hindu law, it is only the wife who can seek annulment on the ground of her husband’s impotency.28 In sharp contrast, under Muslim Law, consent for consummation is automatically presumed when a couple retires into privacy.29

1.1.2

In Vitro Fertilization-Embryo Transfer (IVF-ET)

While artificial insemination is a low-tech procedure, which have been available in some form for years, in vitro fertilization-embryo transfer is a recent development in the treatment of infertility, dating from the birth of the first ‘Test Tube Baby’— Louise Brown in July 25, 1978 and whereafter India’s first and second in the world, baby Kanupriya alias Durga was born using the IVF technique on 3–10-1978 with the efforts of Dr. Subash Mukherjee and his colleagues in Kolkata. It is a unique form of reproductive technique in that fertilization occurs outside the body. It thus brings the formerly invisible processes of fertilization and early embryonic development into view, greatly extending the potential for medico-legal control of the reproductive process. In vitro fertilization is the basic assisted reproduction technique, in which fertilization occurs in vitro (literally, in glass). The man's sperm and the woman's egg are combined in a laboratory, and after fertilization, the resulting embryo is transferred to the woman's uterus. The five steps involved in an IVF treatment are super ovulation (stimulating the development of more than one egg in a cycle), egg retrieval, fertilization, embryo culture and embryo transfer.30

25

ICMR, supra note 21, para 3.16.3. The Parsi Marriage and Divorce Act, 1936s. 32(a). 27 The Special Marriage Act, 1954s.25(1). 28 The Hindu Marriage Act, 1955s.12(1). 29 Fyzee (1974). 30 Rachel Gurevich (2020). 26

10

1.1.3

1 Introduction to Surrogacy

Gamete Intrafallopian Transfer (GIFT)

GIFT is similar to IVF. The ovaries of a woman are stimulated to create more eggs than would have been produced in a normal course. Such eggs are collected and then mixed with male sperm. Donor sperm may also be used if there is need. The mixed eggs are preserved and are immediately transferred to the woman's fallopian tubes, and fertilization occurs inside the female body, unlike in IVF technique.

1.1.4

Zygote Intrafallopian Transfer (ZIFT)

A procedure similar to GIFT, viz. zygote intrafallopian transfer (ZIFT), involves only fertilized eggs being inseminated into the fallopian tube rather than a mixture of sperm and eggs. Any embryo that develops in this process shall be able to grow in its natural surroundings of the body, an advantage it shares with GIFT. However, since it involves two procedures, i.e., egg retrieval and laparoscopy in order to insert the embryo, it is much more invasive than GIFT. However, an IVF is always preferred over GIFT or ZIFT by the fertility experts because it is less invasive along with there being more control over the quality of the embryos. Nevertheless, GIFT is more likely to use than the ZIFT.31

1.1.5

Intracytoplasmic Sperm Injection (ICSI)

A new laboratory procedure known as ICSI has now been developed which helps infertile couples suffering from male factor infertility and undergoing in vitro fertilization (IVF), wherein a single sperm is inserted directly into the cytoplasm of a mature egg (oocyte) through a specially designed microinjection pipette (glass needle), whereafter further culture and embryo transfer take place normally as in other IVF cases. This procedure is preferred over IVF in cases of patients having sub fertile semen. This breakthrough procedure was introduced for the first time in the year 1992 in fertility treatment in cases where the problem was detected in the male partner. ICSI has gained much success since then especially in male infertility treatment. ICSI is widely practices now and accounts for nearly half of IVF procedures. While ICSI is quite similar to IVF, however, the difference lies in the fertilization process. While IVF involves mixing of an egg with 1 lakh sperms and fertilization taking place on its own, ICSI involves injection of a single sperm directly into the egg and which process is carried out through a machines known as a ‘Micromanipulator’. 31

Fertility, Pregnancy, and Reproductive Health Glossary. Available at https://www.babymed. com/fertility-pregnancy-reproductive-health-glossary. Accessed 13 Sept 2017.

1.1 Infertility and Role of Assisted Reproductive Technology (ART) …

11

ICSI procedure is normally being followed for treating the following kinds of male infertility: 1. Males having low sperm count (less than 5 million), high abnormal sperms or sperms with poor motility; 2. Males suffering from with azoospermia, i.e., a condition no sperms can be found in the semen. Azoospermia can be obstructive type, i.e., though sperms are produced in the testis, but due to some blockage in the conduction system, the sperm does not pass out in the semen. Alternately, azoospermia can be non-obstructive also, i.e., where the testis does not produce sperms at all.32

1.2

Surrogacy

In case of failure to conceive through any of ARTs discussed above, childless couples may prefer surrogacy which may be described as the most complicated and socially controversial ART. Strictly speaking surrogacy is not a technique but an arrangement and is loosely included under the umbrella of ART’s. Surrogacy as defined by The Report of the Committee of Inquiry into Human Fertilization and Embryology33 is the practice where a child is carried by a woman on behalf of another woman with the intention to hand over the child post birth to the other woman. It refers to the procedures by which a woman carries a child for someone else.34 According to American Law Reports, surrogacy can be referred to as ‘a contractual undertaking whereby the surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural or biological father, to bear and deliver it to the natural or biological father, and to terminate all of her parental rights subsequent to the child’s birth.’35 Further, the New South Wales Reform Commission defined it as ‘an arrangement whereby a woman agrees to become pregnant and to bear a child for another person or persons to whom she will transfer custody of the child at or shortly after birth.’36 Therefore, to summarize it briefly, surrogacy is the practice under which one woman carries the child for another woman in lieu of a monetary fee with the intention of handing over the newborn child immediately after its birth. The former is called ‘Carrying Mother’, whereas the latter is referred to as ‘Commissioning Mother.’ When the commissioning mother also provides the egg, she is referred to

32

Available at https://ivftreatmentindia.wordpress.com/about/pregnancy-through-icsi-ivf. Accessed 13 Sept 2017. 33 Also known as Warnock Report (1984). 34 Goldstein & Okinaga, Supra note 8. 35 American Law Report (1989) 36 NSW Law Reform Commission (1988). Available at https://www.lawreform.justice.nsw.gov.au/ Documents/Publications/Reports/Report-60.pdf.

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1 Introduction to Surrogacy

as the ‘Genetic Mother’ but the father may either be the husband of the genetic mother or he can also be an anonymous donor.37 Surrogacy has incited the most extreme resistance and the incredible public aggression, because it has clearly split motherhood into gestational, genetic and social segments. The term ‘Surrogate’ has been taken from the Latin word ‘Surrogatus’ which signifies a person acting in someone else’s place or to simply put it, ‘a substitute’.38 Where because of infertility problems couples are not able to conceive a child of their own and other reproductive technologies like (AI) and IVF fails, the couple or single women may take the help of a surrogate mother who can carry the baby for them.39 Generally, the following abnormalities in a couple prompt them to go for a surrogate arrangement: (1) Where a woman is without uterus with one or both ovaries functioning or women who have had hysterectomy for cancer or uterine fibroids or women who have had hysterectomy for severe hemorrhage or ruptured uterus; (2) Women who suffer repeated miscarriage and for whom the prospect of carrying a baby to term is remote or women who have repeatedly failed to achieve a pregnancy following several IVF treatments cycles, and who appear to be unable to implant normal embryos: and (3) Women with certain medical conditions which may make pregnancy life threatening, like heart disease, kidney disease, etc.40

1.2.1

Kinds of Surrogacy

Options in surrogacy are twofold: traditional and gestational.

1.2.1.1

Traditional Surrogacy or Partial Surrogacy

A woman who donates her egg and carries the pregnancy is known as a ‘traditional surrogate’. Here, the surrogate's egg is fertilized through artificial insemination with the sperm of the father or a sperm donor and she therefore becomes genetically related with the babies. Generally, traditional surrogacy has been the most desirable and pervasive choice to accomplish pregnancy. In fact, traditional surrogacy was the only form of surrogacy since the ancient and medieval times prior to the development of new

37

Sidharacharyulu (1998) Garner (2004) defines surrogacy as the process of carrying and delivering a child for another person. 39 Srinivas (2010). 40 Malhotra et al. (2001). 38

1.2 Surrogacy

13

techniques such as IVF and Assisted Reproductive Technology. In case of infertility of the wife, the husband could approach to beget him a child, who would hand over the new born child to the intended parents after it was born. Due to advancement of science and technology, the whole process can now be carried out without the process of sexual intercourse. It can be achieved by artificially inseminating the semen into fertile woman whereby the semen is taken from the male in the ‘genetic couple’. Also, there is a connection between the surrogate mother and the fetus since it is her own egg which is fertilized. The child born as a result has a genetic relation to the father but not to her intended mother. The surrogate mother conceives the child as her own. Therefore, this process is referred to as partial surrogacy since the female genetic material contributed to the child is from the surrogate mother and not the intended mother. The abovementioned process gives the intended couples a unique opportunity to determine the heritage of their child. The advantage with such a process is that the intended couple can choose the surrogate mother based on the wanted and unwanted characteristics such physical appearance, mental ability, racial background, hereditary traits, history of illness or diseases, etc. The surrogate mother, thus chosen, can then be medically evaluated. Along with her, her husband (if married) is also evaluated. After fulfilling all the contractual requirements, the surrogate mother is inseminated when she is fertile. Traditional or partial surrogacy remains the most popular form of surrogacy around the globe due to it being economical and its high success ratio, even when the sword of ethical and legal issues surrounding it, hangs on its head.

1.2.1.2

Gestational Surrogacy or Full Surrogacy or In Vitro Fertilization Surrogacy

In gestational surrogacy, the surrogate becomes pregnant through the process of IVF, where an embryo or embryos created from the eggs and sperm of the intended parents (or donor egg and donor sperm selected by the intended parents) are implanted in her who then carries the baby until birth. Such gestational carrier is not genetically related to the child she carries. Here the female partner of a couple may not be infertile, but there is a risk to carry on the pregnancy. Gestational surrogacy, also called in vitro fertilization or full surrogacy, is a more expensive and rather complicated process. It involves the surrogate mother receiving an embryo which has a completely different set of chromosomes than hers. This leads to various complications during pregnancy that are sometimes amplified into illnesses. It puts fetus under high risk due to multiple treatments. The pregnant woman requires constant monitoring and thus under greater risk. Hence, there are various forms of gestational surrogacy like: a. Insemination of embryo into surrogate from both the intended parents whereby the embryo is produced by using the sperm and the egg of the latter with the process of IVF.

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1 Introduction to Surrogacy

b. Process of Egg Donation-Where the embryo is produced by fusing a donor egg unrelated to the surrogate with the sperm of the intended father. It is then implanted in the surrogate mother. This is an IVF process where the resultant child is only related to the intended father and not to the surrogate mother. c. Process of Sperm Donation-Where the embryo is produced by fusing a donor sperm unrelated to the surrogate with the egg of the intended mother. It is then implanted in the surrogate mother. This is an IVF process where the resultant child is only related to the intended mother and not to the surrogate mother. d. Donor Embryos-When a surrogate mother is implanted with a donor embryo which are available due someone else undergoing IVF has left over embryos and they exercise their option to donate to others. The resultant child is unrelated to both, the intended parents as well as the surrogate. The level of acceptance for both the aforementioned types of surrogacy is varied across the globe. Traditional surrogacy, while considered a taboo in India, is the only form of legal surrogacy in China. On the other hand, countries like Ukraine and Israel permit both forms of surrogacy.

1.2.1.3

Altruistic and Commercial and Surrogacy Arrangements.

An altruistic surrogacy arrangement is one where the surrogate does not receive any financial reward unlike a commercial surrogacy arrangement where, the surrogate is compensated for her time and effort. However, in both cases, all expenses related to the pregnancy and births are paid by the intended parents. Surrogates can be friends or relatives or acquaintances of the commissioning parents. A potential surrogate must possess good health and fit to undergo pregnancy with minimal risk to her own life and health since surrogate needs to be emotionally balanced and is also required to maintain physically well-being. It is, therefore, important that the woman opting for surrogacy has the backing of her partner, family or friends, to provide her physical and emotional support throughout and after pregnancy. Some jurisdictions around the world do permit altruistic surrogacy with Canada being the most prominent example. In fact, The Assisted Human Reproduction Act 2004 only permits altruistic surrogacy and which is also permitted by Countries such as Netherlands, Belgium and New Zealand. UK has a fairly complex law on surrogacy. While there is no prohibition on paid surrogacy, however, surrogacy contracts cannot be enforced over the objection of the birth mother. Surrogacy arrangements in UK are subject to a framework which is a combination of Surrogacy Arrangements Act 1985 and the Human Fertilization and Embryology Act 2008 (‘HFEA 2009’). In France, while there is no law governing surrogacy, there are certain general legal provisions which somewhat deal with surrogacy. To sum it up, any nature of surrogacy arrangement, be it commercial or otherwise, is illegal in criminal law and unenforceable under civil law. In the USA, there is no federal law on surrogacy as of now. Different states have taken different approaches toward

1.2 Surrogacy

15

surrogacy. In some states, surrogacy arrangements are completely illegal and hence unenforceable, while in other states, it is expressly regulated. The position of various countries on commercial and altruistic surrogacy and the laws regarding it are expressly and elaborately dealt with in the next chapter.

1.3

Evolution of Surrogacy

The origin of surrogacy can be traced in Babylonian Legal Code of Hammurabi from eighteenth century BC which provided for extensive guidelines regarding permission for allowing surrogacy.41 Traces of surrogacy can also be found in the Old Testament where the maid, Hagar is commissioned by Sarah, the infertile wife of Abraham, to bear her child upon convincing Abraham to have intercourse with Hagar.42 Speaking of India, one of the most famous example which takes us back to ancient times is that of Gandhari, wife of Dhritrashtra and mother of Duryodhan. It is told that Sage Vyas had given a boon to Gandhari as per which she would be the mother of hundred sons. Going by the tales, after having remained pregnant for almost two years, Gandhari delivered a giant mole which consisted of 100 cells and which was later cut into one more cell as Gandhari wished for a daughter also from the Sage Vyas. They grew in vitro out of which 100 cells developed into hundred male children while one developed into a female child. In fact, from the same text, one can trace various other instances of surrogacy such as that of Sage Gautam who fathered Kripa and Kripi only through his semen. Sage Bharadwaj produced Dronacharya Another instance is the birth of Draupadi and Dhristyduma, twin children of King Dhrupad, who was an enemy of Dronacharya and wanted a son strong enough to kill him. For that purpose, Dhrupad was administered a medicine and after collecting his semen, it was suggested that AIH should be done for his wife which was refused by his wife. However, it was only after the Rishi put the semen inside the Yagnakunda from which Dhrupad and Drishtydum came to be born. In fact, some Hindu texts even provide some vague concept of embryo transfer during the birth of Krishna when Devaki’s womb was transferred into Rohini’s so as to save him from being killed by Kansa, his uncle.43 As such, the concept and practice of surrogacy can be seen to be a part of our own mythology and therefore, surrogacy cannot be termed as a concept which has just evolved from thin air. Present-day surrogacy can be seen to have begun in 1899 and which has been greatly affected by diverse practices and customs prevalent in different societies globally. One must give credit to the American Indians for the origin of surrogacy

41

Pillai (2020). Wilder (2002); Also see Genesis 16. Available at https://www.biblegateway.com/passage/? search=Genesis%2016&version=NIV. 43 Chawan (2008). 42

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practice. In their culture, if a woman was infertile, the husband was given permission by the chief of the Tribe to father a child with another woman.44 Even in medieval Europe, Kings would sleep with several women till they got a male child. Since there was no technology like IVF available in the ancient and medieval times, this was the only way one could beget a child when he/she had an infertile partner.45 It was, however, for the first time in the year 1978, through IVF that the first child was conceived and born in the UK and was named as Louis Brown. Thereafter, in the 1979, a couple underwent the IVF procedure under the guidance one of Dr. Richard Levin and a surrogate mother namely Elizabeth who was artificially inseminated who gave birth to a child which was then handed over to the couple. The surrogate was paid a compensation of $10,000 for carrying out this job and which surrogacy arrangement is often termed as, ‘commercial surrogacy.’ Another landmark event which can said to have taken place concerning surrogacy was in the year 1983 when an Australian woman, after attaining menopause, conceived through a donated egg. The year 1986 can again be said to be a landmark year as the first case of Gestational surrogacy took place in the USA. It was a case where the surrogate carried a child for a woman who had got her uterus removed. The surrogate was paid a compensation of $10,000 for her services rendered and the identities of the commissioning couple were kept confidential. This led to surrogacy being slowly accepted by the society, a procedure which was shrouded with secrecy earlier.46 Later, however, surrogacy was brought to the world forefront by the Baby M case owing to its peculiar facts. In this case, a baby named Melissa Stern was given birth by a surrogate known as Mary Beth Whitehead. Trouble began when the surrogate changed her mind post birth and instead of handing over the child to the intended parents, decided to keep the child herself. A legal battle ensued which lasted for 2 years and which ultimately resulted in the intended parents getting the guardianship of the child and the surrogate getting visitation rights.47 Surrogacy has recently become an immensely popular procedure for begetting children for infertile couples across the globe. Many cases have come to the forefront such as that of Teresa Anderson who, as a surrogate, gave birth to five boys in the year 2005 via gestational surrogacy for a couple she had met online. Another case was of Jaci Dalenberg who acted as a surrogate mother to her own daughter and gave birth to triplets and as such, gave birth to her own grandchildren.48 The first case of commercial surrogacy in India was recorded in the year 1997 when a woman hailing from Chandigarh, for a consideration of Rs. 50,000/–, agreed to be a surrogate for an infertile couple as she was in dire need of this money

44

Ashley Kate. History of Surrogate Motherhood. Available at https://ezinearticles.com/?Historyof-Surrogate-Motherhood&id=2458369. 45 Ibid. 46 Pillai, Supra note 41. 47 Baby M, 537 A. 2d 1227, 109 N.J. 396 (N.J. 02/03/1988). 48 Pillai, Supra note 41.

1.3 Evolution of Surrogacy

17

which she required for treating her husband who was suffering from paralysis.49 Speaking of India, it was in the year 1999 that an Indian newspaper reported the case of a woman hailing from Gujarat who had acted as a surrogate for a German couple. This case marked to be the first transnational surrogacy case in India.50 Despite the lifeline that it has provided to infertile couples globally, the procedure is not without its limitations, the most prominent one being that of cost. The entire cost of surrogacy not excluding the compensation which is required to be paid to the surrogate mother ranges anywhere between $50,000 and $100,000. In developing countries like India, the price ranges between $25,000 and $30,000 which had made India a very popular hub for surrogacy for foreign couples in the early part of the twenty-first century. Transnational surrogacy whereby infertile couples from affluent countries in Europe and North America hire wombs of poor women as surrogates from developing South Asian countries like India has been a booming business since a decade. These South Asian countries have stark socioeconomic inequality which provides the perfect breeding ground for the business of surrogacy to flourish.51 It is universally agreed by the surrogates that the monetary sum offered can transform their lives for the better. Commercial surrogacy, a flourishing business in the early part of the twenty-first century, is now on the verge of prohibition. According to a 2016 report by The Guardian, surrogacy clinics were a thriving business in India with up to 3000 such clinics with an annual turnover of up to 65 million pounds per annum. The report studied Akansha Clinic in Gujarat, also shed light on the payments provided to surrogates thereby revealing that a surrogate attached to a clinic is paid 40 pound a month, 4000 pound on delivery and another 1000 pound if she delivers twins.52 The report highlighted that there was a total of 75 women working as surrogates for the clinic. Commercial surrogacy having been completely outlawed by most North American and European countries, foreign couples therefore, turned to countries such as India for having a biological child at cheap and affordable rates. Apart from lower cost, other factors such as less restrictive laws, lack of regulation of ART clinics, abundant choice of donors and easy availability of surrogate mothers have also contributed in the growth of the Indian Reproductive Tourism Industry which is presently estimated to be at Rs. 25,000 crores with the Law Commission of India describing it as ‘a gold pot’ promoted by over 200,000 IVF clinics with websites offering wombs, sperms and eggs. To be specific, there is a small town in Gujrat known as ‘Anand’ which has acquired a peculiar reputation for outsourcing commercial surrogacy which is still unregulated in India. In fact, it is being treated as legitimate in the absence of any Indian Laws expressly prohibiting it. Currently, the non-binding National Guidelines for Accreditation, Supervision

49

Srinivasan (1997). Jyotsana Agnihotri Gupta (2006). 51 Elo (2017). 52 Doshi (2016). 50

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1 Introduction to Surrogacy

and Regulation of ART Clinics in India, 2005 promulgated by the Ministry of Health and Family Welfare, Government of India and the Indian Council of Medical Research and the National Academy of Medical Sciences govern surrogacy in India. However, due to the unenforceable nature of these guidelines, there is a lack of adequate legal framework for the ever-growing market of commercial surrogacy in India and in the absence of any statutory regulation, the issues related to parenthood and nationality in cross-border surrogacy cases saw a steep rise before the Indian Courts.53 In fact, the Baby Manji case in 2008 sparked an intense public debate on commercial surrogacy in India and recognized the need for a comprehensive and effective legislation on commercial surrogacy, and it was only after the Baby Manji case came to light the Law Commission of India, in its 228th Report, titled ‘Need for Legislation to Regulate Assisted Reproductive Technology Clinics As Well As Rights and Obligations of Parties to a Surrogacy’, strongly supported altruistic surrogacy making it subject to proper regulations in order to ensure safeguard of women from exploitation. The Report also submitted a Draft Assisted Reproductive Technology (Regulation) Bill, 2008 which subsequently came to be replaced by the Draft Assisted Reproductive Technology (Regulation) Bill, 2010, 2014 and then came Surrogacy Regulation Bill 2016, 2019 and at present, The Surrogacy (Regulation) Bill, 2020 which is a result of much judicial pressure from Supreme Court (SC) while adjudicating the public interest litigation, Jayashree Wad v. Union of India54 along with Union Of India v. Jan Balaz, Civil Appeal,55 and which is currently pending nod by the Indian Parliament.

1.4

Surrogacy: Issues and Complexities Involved

‘Surrogacy’ has been a hot topic for a long time now as various moral, legal and ethical issues are involved in the process. There is a growing trend among infertile couples to seek fertility services enabling them to have their own biological offspring. In fact, today cross-border surrogacy agreements form part of a rapidly growing medical tourism Industry. However, despite the significant increase in the number of cross-border surrogacy arrangements, the reception and regulation of surrogacy vary between countries. As to the legality of surrogacy, it is legally accepted in some countries while it is still not allowed in many and due to each Nation’s different approach to surrogacy combined with a lack of international regulations, a surrogate child gets entangled in a legal battle when it comes to the ascertainment of his rights relating to parentage, nationality, citizenship, right to

53

Baby Manji Yamada v. Union of India, (2008) 13 SCC 518., and Jan Balaz v. Anand Municipality and Ors, AIR 2010 Guj 21; Union of India & ANR v. Jan Balaz and others, Special Leave to Appeal (Civil) No. 31639, Supreme Court of India, 2009. 54 Writ Petition (Civil) 95/2015. 55 AIR 2010 Guj 21.

1.4 Surrogacy: Issues and Complexities Involved

19

travel documents, right to be cared by his or her parents, right not to be separated from his or her parents, in addition to denial of the right of children to have their best interests as a primary consideration in all decisions concerning them. Thus, international commercial surrogacy raise many complicated legal questions, and the major challenge for authorities and Courts faced with such cases is to ensure the welfare and best interests of the surrogate child. Although many countries have taken temporary and ad hoc measures when faced with such issues, however, in the absence of any international regulation to protect the rights of surrogate child, the difficulty with these partial solutions is that the child, at times, is left with what has been referred to as ‘limping parentage’. Further, since infertility among modern couples is one primary reason which has brought surrogacy to the forefront. A question which naturally comes to mind is after all, why would a woman want to become a surrogate mother? What motivates a woman to do such are unusual thing? The answers are manifold and sometimes very fascinating and unique. They vary from economic to sincere friendship to guilt over a past abortion. Money, no doubt is one of the most common and important considerations, but there are other reasons too. Some women choose to do it simply out of sympathy and compassion for women who are unable to bear. Irrespective of the motive, surrogate mothers are viewed as angels by parents who are deeply gratuitous toward them for helping them realize their dream. At the same time, surrogacy has stirred a storm of controversies in legal, medical, moral, religious and psychological quarters and has been strongly criticized for encouraging mass commercialization of reproductive capacities of women. It has also been charged with destroying the sacredness of one of the finest human relationships, viz. the child–parent relation by supporting and involving in ‘baby selling.’ Morally too, surrogacy gives rise to various issues such as undermining the institution of marriage and family life as it interferes with the normal process of procreation and treat children as a sale commodity.56 The first step to settle the entire controversy revolving around surrogacy would be to test the concept on ethics and morals of the society. Its acceptance would depend on whether surrogacy would appeal to accepted notions and society norms. Some of the issues which revolve around surrogacy arrangements and which require a careful consideration can be understand as under.

1.4.1

Legal Issues

(I) Perplexed Motherhood Prior to the advancement of medical technology, the question as to who is the mother was never a dispute. However, with the advent of the concept of surrogacy, the question that is puzzling the society is, as to what constitutes motherhood? Is it 56

Chawla (2009).

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child bearing or child rearing? Since in surrogacy arrangements there are three important entities, i.e., the intending mother, biological mother and the genetic mother. Therefore, the question arises as to out of the three, who should be the legal mother—the intending mother who wants the child and for whom the child is brought forth; the biological mother who carries the child for the gestational period; or the genetic mother, who can be proved to be the mother through DNA tests on the basis of genetics and DNA fingerprinting, the mother may be the woman whose ovum has been fertilized, i.e., the genetic mother. The legal complexity regarding motherhood arising from surrogacy was well documented in the case of Jaycee B. v. Superior Court57 which was a case where an infertile couple unable to conceive even after going through the process of IVF, arranged an anonymous donor for sperms and eggs and consequently got the child born to the gestational mother. Therefore, the child had five people who could lay claim of parenthood on him. Further, just a month before the child was to be born, the intended parents separated and the father tried to resile from his obligations arising under the surrogacy contract in order to avoid paying for child maintenance. The wife, however, sought custody of the child and also maintenance support from her separated husband. The Court, after a litigation which remained pending for three years and during which the child remained devoid of parenthood, finally held that the commissioning couple were the legal parents of the child. Similar, was the instance in an Indian case Baby Manji Yamada v. Union of India,58 In this case a baby called Manji was born to an Indian surrogate mother and to commissioning parents belonging to Japan. The Japanese couple had used the husband’s (Mr. Yamada’s) sperm and an Indian donated egg to create the embryo. The baby hung in legal limbo when her biological parents (the Japanese couple) got divorced, and the wife was not ready to accept the child and even the surrogate mother too abandoned the child. Japanese authorities told Mr. Yamada that he would be able to bring Manji to Japan only by adopting Manji pursuant to both Japanese and Indian laws. The father could not adopt the child as under the Indian law, a single father cannot adopt. During all this, a petition came to be filed before the Rajasthan High Court by ‘Satya’, a NGO praying for preventing Manji from being taken out of India. A challenge was laid to the commercial surrogacy and it accused the clinic of illegal infant trade where Manji was born. The petitioner alleged and argued that since there was no legislation on surrogacy in India, therefore, as such, nobody could claim parenthood over Manji, including Mr. Yamada. The Rajasthan High Court required Manji to be brought to them within four weeks. In response, Mr. Yamada’s mother filed a writ petition on Manji’s behalf before the Supreme Court of India.59 The Supreme Court granted temporary custody of Manji to Mr. Yamada and in an order dated September 29, 2008, while disposing of the case, it stated that the Commission formed under the Protection of Children Right Act,

57

42 Cal. App. 4th 718 (1996). AIR (2008) 13 SCC 518. 59 Smerdon (2008). 58

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2005 was the appropriate authority to hear the complaints of the type made by Satya and on that basis the supreme Court disposed of Satya’s proceedings pending before the Rajasthan High Court.60 On the issue of commercial surrogacy, while validating the same a pertinent observation was made by the Court saying “Commercial surrogacy is legal in several countries including India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms ‘wombs for rent’, ‘outsourced pregnancies’ or ‘baby farms’”.61 Post the judgment of the Supreme Court, Baby Manji was provided with a certificate of identity by the Jaipur Passport Office as a special dispensation along with a one-year visa on humanitarian grounds, by the Japanese embassy in India which later resulted in Baby Manji traveling to Japan with her grandmother.62 In fact, the various theories which have emerged in connection with the issue regarding as to who should be considered as the legal mother can be understood as under: (i) (ii) (iii) (iv)

Intent-based theory; Genetic contribution theory; Gestational mother-preference theory; Best interest of the child theory.

(i) Intent-Based Theory. When the concerned adjudicating Court adopts the intent-based theory, the legal mother is defined as the intended mother who intends to rear the child. This basis for finding legal maternity was developed by California in the case of Johnson v. Calvert63 where the Supreme Court of California was faced with the task of analyzing a statue that provided that maternity could be proven by the person giving birth to the child that is by the biological mother of the child. Since the gestational surrogate and the biological mother both had a valid legal claim of maternity, the Court was forced to create a new theory of maternity. When the Court looked to the surrogacy contract to determine the parties intention concerning maternity, it reasoned that ‘she who intended to procreate the child, that is she who intended to bring out the birth of the child, that she who intended to raise as her own, is the natural mother under the California law.’64 This reasoning is based on the theory that, but for the intended couple, the child would not have come into being. Therefore, the intended woman had a more natural claim to the child that it created.65

60

Baby Manjhi, supra note 58. Para 13. Id at para 9. 62 Smerdon U, supra note 59. 63 5 Cal.4th 84, 851 P.2d 776 (1993). 64 Id. 65 Coleman (1996). 61

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(ii) Genetic Contribution Theory. The genetic contribution theory determines maternity according to the biological connection between the child and the woman whose ovum contributed to the conception of the child. Under this approach, where a child is conceived using genetic material from the intended couple, the intending mother will always be termed the legal mother.66 (iii) Gestational Mother-Preference Theory. Prior to the emergence of Assisted Reproductive Technologies, the common law regulated the definition of mother which said that the ‘woman giving birth to a child was a legal mother of the child.’ In case of a surrogate mother, she also establishes a unique physical and emotional bond with the child during the nine months, a bond that intended mother cannot simply attain. Though this theory can serve as a judicial safeguard against unfair surrogacy contracts but when the Courts use this theory, it discredits the constitutionally protected decision of the intended parents as well as of the surrogate who voluntary participates in such arrangement.67 (iv) The Best Interest of the Child Theory. This theory is regarding the decision of who should be the legal mother of the child and which is decided keeping in mind the best interest of the child. In making this decision, the Court considers the ability of the parties involved to nurture the child physically and psychologically. This approach is based on the idea that one legal rule may not be enough to deal with the various disputes which may occur in surrogacy cases. The best interest standard allows the Court to consider intent, genetics and the interest of the gestational mother when it decides legal maternity. This theory is appealing because it ensures that the child goes to the mother who is adjudged as best for the job.68 Having discussed above the various theories with regard to the issue as to would be regarded as the mother of the child, it is pertinent to mention that it is only in the absence of any clear legal provision that such an issue occurs. (II) Violation of legal and Human rights of various stakeholders involved The multifold worldwide growth in surrogacy including India calls for a need to protect the legal and human rights of various stakeholders involved in a surrogacy arrangement as compared to the duties on their part. When one understands and appreciates the disadvantages and vulnerabilities faced by surrogate mothers along with their reasons to volunteer for this cause, it becomes imperative for every Nation to protect their rights by laying down unambiguous rules/regulations for preservation of their rights as well as the rights of the various stakeholders involved in the entire process of surrogacy

66

Id., at 514–523. Id. at 524–525. 68 Dolgin (1997). 67

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23

as to carry out procreation is the right of every human being. Also, in the absence of any specific law dealing with surrogacy in India or globally, various complicated social and legal issues affecting the rights and interests of children born from such arrangements have been witnessed in recent times resulting in the infringement of basic rights of such children, such as right to parentage, nationality, citizenship, right to travel documents which are in addition to other recognized rights such as child’s right to have their best interests as primary consideration in all decisions concerning them, right to non-discrimination, to birth registration and to know and be cared by his or her parents, right not to be separated from his or her parents, right to preserve his or her identity and to have information regarding one’s genetic origins, right to physical and psychological health, i.e., the right to live a healthy life free from manmade abnormalities, etc. Resultantly, various guidelines and bills regarding regulation of surrogacy have been introduced by the legislature in India as well as in various other countries where they are in force, with the objective to regulate the practice of surrogacy and to ensure there is no exploitation of surrogate mothers and surrogate children. However, there is an urgent need not just for the enactment of a legally binding surrogacy law across jurisdictions, but also of a legal regulatory framework to be put in place globally to which all its signatories shall adhere to while framing their own laws. (III) Legitimacy of the Child Surrogacy tends to challenge the legitimacy of the child born out of it since common law only recognizes a child born to a legally wedded couple who were married either at the time of his conception or birth as a legitimate child. For legal purposes, paternity is a question based on the genetic factor. So far as the husband’s sperm is used for insemination the woman, it does not pose any question of paternity of the offspring. However, the use of donated sperm via artificial inseminated donor (AID) often creates conflict regarding paternity of the child. In the absence of statutory intervention, will such child be illegitimate? Or will his rights those being enforceable against his genetic father, i.e., anonymous donor, be enforceable against his social father? The question with regard to the legal status of a child born by AID with the consent of the husband was raised in Strand v. Strand69 where the separated wife tried to alter the Court’s authorization to the husband for weekend custody of her child on the plea that the child was born by heterologous artificial insemination. The New York Supreme Court held that since the husband had consented for the AID, the child cannot be regarded as illegitimate rather the child would be regarded as ‘potentially adopted or semi-adopted’ by the husband. Therefore, husband was entitled to the same rights as those acquired by a foster parent who has formally adopted a child, if not the same rights as those to which a natural parent under the circumstances would be entitled.

69

78 N. Y.S. 2d 390 (1948).

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However, taking a contrary view, in Doornbos v. Doornboss70 where the child was born through AID, it was held that the child cannot be said to be born from the wedlock and his status is therefore that of an ‘illegitimate’. It was further observed that AID amounted to adultery and was contrary to public policy. It further ruled that although the husband had consented to artificial donor insemination of his wife, yet he had no visitation rights to the child. The Court said heterologous artificial insemination (when the specimen of semen used is obtained from a third party or donor), with or without the consent of the husband, is contrary to public policy and good morals, and constitute adultery on the part of the mother. A child so conceived is not a child born in wedlock and therefore illegitimate. And as such it is the child of the mother and the father [sic] has no right or interest in said child. In a later case, in Gursky v. Gursky71 again, the New York Supreme Court found that a child born through AID is not a legitimate child of the husband. In this case, the defendant wife, in her husband’s unsuccessful action for annulment, counter claimed for an annulment of the marriage for impotency of her husband and for custody of and support for a child born via artificial insemination with semen from a third-party donor. The husband had given his written consent for the insemination, nevertheless, the Court granting annulment refusing to recognize the child as legitimate to the husband. The effect of the written agreement by the husband, however, was that he was bound to support the child. Similarly in Anonymous v. Anonymous,72 the husband had provided his content for therapeutic impregnation of his wife. When during divorce proceedings, the wife claimed alimony, the husband pressed the counter claim that the child was illegitimate which was refused by the court and the alimony was granted to wife. The Court opined, ‘the written consent carried an implied promise to furnish support for the resulting progeny.’73 In People v. Sorensen74 a man was sued by his divorced wife for not supporting their AID son monetarily. The man had consented to the AID procedure administered on the wife after 15 years of marriage and determination of his sterility. For about four years prior to their separation the defendant represented that he was the child’s father. The Supreme Court of California held the defendant to be the legal father of the children born to his former wife and further held that his conduct carried with it an obligation to support. Thus, we find that there is no unanimity on the point and there are conflicting and contradictory decisions. The innocent children should not be made to suffer the stigma of illegitimacy. A father who consents to the wife being so

70

139, N.E. 2d 844 (1956). 242 NY.S.2d 406(Sup.Ct.1963). 72 N.Y.T246 2d 835(Sup.Ct.1964). 73 Id. 74 68 Cal 2d 280 (1968). 71

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impregnated or holds such a child as his own should be treated as the real father of the child and the Sorensen case decision lends support to this point of view. In case of insemination without consent, the father should not be burdened with the liability to maintain the child. It is necessary that formal written consent should be made obligatory in order to avoid a controversial situation. This problem has been solved to same extent by the western countries by enacting legislations. In England, the Human Fertilization and Embryology Act 1990 provides for presumption of paternity. Vide Section 28, a married woman who undergoes artificial insemination or transfer of embryo and gives birth to a child, then the husband of such woman shall be treated as the father of the child so born. English law presumes about the consent and parentage. The law Commission in its report75 suggested that where there is consent of the husband for insemination, the child should not be deemed to be the donor’s child. The recommendations of the Law Commission were partly adopted in the Family Law Reform Act, 1987. Section 27(1) of the Act brought a deeming provision, whereby for the AID child, it will be deemed that there is consent of the father and the child will be deemed to be of the spouses. But this presumption is rebuttable through the Court of Law. The Commission recommended for a proper recording of the consent of the husband, but this was not translated into law. To avoid any conflict in future between the donor and the spouses or the spouses inter se, it is necessary to permit the insemination only on the written consent of the husband, duly recorded. In USA, every state that has legislation for AI has provided legitimacy to AID child. In some states, even in absence of statutes, the case law supports the legitimacy of the child when the husband expressly or impliedly had consented for insemination. Certain evidentiary protections have also been accorded to child; child born in lawful wedlock is presumed legitimate. In India, the legitimacy of a child and is governed by the personal laws. The Hindu Marriage Act 1955 and Special Marriage Act 1954 confer legitimacy on children of void marriages enumerated under those Acts alone and denies legitimacy to children of other void marriages which fall outside the purview of these acts. An AID child will not come under the provisions enumerated under any of the acts mentioned above. Hence, they will be illegitimate in the absence of any legislation legitimizing the AID children. The same is the condition under the existing Muslim Law, where parentage is established only on biological parents and the child is born out of wedlock, legitimacy cannot be conferred on illegitimate child. For legal purposes, paternity is a question based on the genetic factor. The use of sperm from a donor/anonymous donor creates conflicts and problems in the inheritance rights of the child. In India, neither there is any statutory law nor any judicial precedent to determine the legitimacy and the parentage

75

Report No. 157 (1986).

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of an AID child except for the presumption that children born during the subsistence of marriage are deemed to be of legally wedded spouses which is rebuttable on the grounds of impotence, sterility and non-access. In case of AID, there cannot be any presumption, as it would be evident from the facts that the natural father of the child is the donor. Therefore, the AID child will be illegitimate. In light of the existing law, however, if the facts of AID is not known due to extreme secrecy, the child would get the protection of above provisions. But in absence of such secrecy the child would be illegitimate. Therefore, the legitimacy can be granted to such children only by legislation. Legislation can be any of the types: Firstly, it should declare the child born as a result of AID to be the legitimate child of the legally wedded couple and secondly, to grant legitimacy only when there is consent of husband for AID. It is pertinent to mention here that various surrogacy bills which that have been proposed in India so far have presumed the surrogate child to be the legitimate child of the intended parents(s) and who is having all rights akin to a child born biologically. The National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India promulgated by the Indian Council of Medical Research (ICMR) in 2000, revised in 2005 also provides that a child born to the intended couple as a result of an ART procedure is presumed to be the legitimate child of intending Couple, born from the wedlock, with consent of both spouses and have all the legal rights which a child born from sexual intercourse between a couple has, like the right to parentage, support, inheritance. Similar was the stand taken under the proposed ART Bills of 2008, 2010 and 2014. However, the position is different when one analyzes the provisions of the Indian Evidence Act, 1872 which recognizes a child to be legitimate only when he/she is born within 280 days of dissolution of marriage (by death or divorce).76 Hence, considering the fact that science has made necessary advancements whereby a child can be born by artificially inseminating a woman with stored sperms from her deceased husband, the child born from such a procedure must be considered to be a legitimate child notwithstanding the existing presumptive law of Evidence. Therefore, this old and archaic law needs to be suitably amended so that there may not arise any unwanted or a harsh situation in future. This will avoid any contradiction arising within the laws governing surrogacy raising presumption of legitimacy of the child born via surrogacy. (IV) Validity of the Surrogacy Contract The law on surrogacy contracts is murky to say the least. The legislations regarding enforcement of surrogacy contracts are different in different jurisdictions globally. While these contractual arrangements are considered illegal in some countries, it is considered legal in others. In general, a contract to perform an illegal act is void. As such, if the court finds that a surrogate is

76

The Evidence Act 1872, s.112.

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indulging in an illegal act, it will be void being in violation of laws relating to selling of babies. In USA, every state has a legislation to prevent baby selling and black market adoptions. In the case of Baby M,77 where Mr. William Stern and Elizabeth were a couple who wanted to have a child but Elizabeth was infertile so Mr. Stern entered into contract with Mrs. Marry Beth Whitehead to bear a child for Elizabeth and William Stern in exchange for $10,000, plus fees and other expenses, the conditions for the contract provided that Whitehead would became pregnant by artificial insemination with Mr. Sterns semen and would surrender any resulting child to him and his wife. The child was delivered, Whitehead however, subsequently expressed her difficulty to part with the child and tried to keep the child. A superior Court of New Jersey ruled that the surrogate contract was valid and that Sterns should have sole custody, with Whitehead’s parental rights to be terminated. The Whiteheads went for an appeal to the Supreme Court however, the Supreme Court upheld the awarding of custody to Sterns as in the child’s best interest, but held the contract was unenforceable and restored Whitehead’s parental rights, leaving the terms of her visitation as a non-custodial parent to be established by Court. Although the contract explicitly provided that the money paid was for Whiteheads services, the Supreme Court of New Jersey determined that the money was actually paid for the adoption and violated the state’s adoption status. According to the Court, they would pay nothing in the event that the child died before the fourth month of pregnancy, and only $1,000 if the child was still born, even though ‘the services’ had been fully rendered. The Court further observed that these contracts ‘Touted by those in the surrogacy business in the attractive alternatives to the usual route leading to an adoption really amounts to something other than a private placements adoption for many’. Thus, applying the state’s baby selling law to surrogate contracts, the same was rendered as void. Another approach for determining whether surrogacy contracts could be considered as ‘baby selling’ was taken by the Supreme Court of Kentucky in the case of Surrogate Parenting Associates, Inc. v. Armstrong78 where Surrogate Parenting Associates, Inc. (SPA) operated a medical clinic which insisted infertile couples in obtaining a child through artificial insemination of a surrogate mother. The Attorney General brought criminal charges against SPA seeking to revoke its corporate charter for violating Kentucky statutes prohibiting the sale or purchase, or the procurement of sale or purchase of any child for the sale of adoption. Reversing the Kentucky Court of appeals, the Supreme Court of Kentucky held that parties involved in a surrogate mother contract do not violate the State statue prohibiting the sale or purchase of children. The Supreme Court of Kentucky recognized that SPA in surrogate parenting procedures should not be construed as participating in the buying and selling of babies. The Court reasoned that the essential consideration for a surrogate mother when she agrees to a surrogacy arrangement cannot be said 77

537A. 2d 1227 (N.J.1988). 704 S.W.2d 209 (KY1986).

78

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to be avoiding consequences of an unwanted pregnancy or fear of child rearing. The primary consideration on the contrary is to help couples who are unable to beget a child in the traditional manner. The Court concluded that a surrogacy contract cannot be held to be a contract for adoption and such a contract is rather a contract between the biological parents regarding custody of the child and that such a contract is subject to determination of the child’s best interests. At present, Kentucky does not consider surrogacy violative of its baby selling laws and so surrogacy remains a viable alternative to traditional adoption. In India, such contractual agreements have received criticism for being opposed to public policy79 since the entire process involves renting of one’s womb to beget a child which will be handed over immediately to the commissioning parents in lieu of monetary benefit. Critics also point out that such a process is akin to selling of a child. While one may not find the baby selling argument persuasive as in some cases, the surrogate is not paid or the contract provides only for payments limited to the medical and living expenses of the surrogate. It may also be noted that determining the legality of surrogacy contracts based on payments alone would lead to an odd result. If one supports the ‘baby selling’ argument then, a volunteer surrogate who undertakes this task freely would more likely be forced to give up her child due to a legal, enforceable contract, while a paid surrogate would probably keep her baby because she is aware that her contract is illegal and therefore unenforceable. It is gauged that the position of surrogacy contracts in India, as discernible from the various bill proposed so far, has been ever-changing. While the Draft Assisted Reproductive Technology (ART) Bill 2010 followed by the ART Bill of 2014 specifically provided that a surrogacy agreement would be legally enforceable thereby treating such agreements at par with other standard contracts and the principles of the Indian Contract Act 1872, the Surrogacy (Regulation) Bill 2016 followed by 2019 Bill and then the current 2020 bill, in sharp contrast, permit only altruistic surrogacy arrangements and does not contain any provision regarding the necessity of having a contract citing legal aspects and thus remain completely silent on the enforceability of such agreements.

79

Indian Contract Act, 1872, s.23. provides that the consideration or object of an agreement is lawful, unless- it is forbidden by law; or is of such nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

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1.4.2

29

Moral and Ethical Issues

(i) Is Surrogacy Undermining the Institution of Marriage and Family Life? Surrogacy arrangements may have an ill effect on the matrimonial life of the surrogate mother as well as on the life of the commissioning parents. The husband may feel emotionally attached with the surrogate mother who full fills his wish, which his wife could not. This could adversely affect the marriage of both the parties. This may also lead to cruelty by the married surrogate upon her husband in case she bears the child for others, without his consent and which again may lead to matrimonial discord. At the same time, it is also felt that surrogacy often acts as a factor which ultimately saves the institution of marriage in as much as it fulfills the desire of the couple, who remain childless for whatever reasons, of having a child.80 (ii) Surrogacy as a Tool of Exploitation People often believe that with the advent of commercialization, the practice of surrogacy has become another manipulative tool in the hands of the wealthy people to exploit the already susceptible poor. Presently, the proposal is intended to help only infertile women and tomorrow, it may be simply a matter of convenience with women hiring someone younger and poor, to have her baby. Some thinkers who equate surrogate mothering to ‘selling of one’s body for the temporary job’ or to renting of one’s womb for nine months submit that economic pressures might tantamount to duress wherein the surrogate might be coerced into consenting to the process. However, the prosurrogacy group is of opinion that it should not be viewed as intrinsically coercive as no one would do it unless driven by poverty. Let us take an example of the race-car driven or stuntman. Does anyone think that they are forced to perform risky activities for money? They freely choose to do so, is not it? Don’t they do it because they enjoy their work, and derive satisfaction from doing it well? Of course they ‘do it for the money’ in the sense that they would not do it without compensation; though a few people are willing to work ‘for free.’ But the element of coercion is missing, because they enjoy the job, despite the risks, and could not do something else if they chose. Such should be the perception about the surrogates as well. Indeed they choose the surrogate role primarily because it provides a better economic opportunity than alternative occupations, but also because they enjoy being pregnant and the respect and attention that it draws. Some may derive a feeling of self-worth from an act they regard as highly altruistic: providing a couple with a child they could not otherwise have. Is not it so wonderful to have people that ‘want’ children, because that’s the correct reason as to why children should be born? Would not it 80

Kaur (2018).

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give an immense pleasure of gifting a ‘life’ to childless people? Then why there is no reward for the surrogate for bringing so much happiness in the life of the couple who have remained childless? Surrogacy is a resort to answer the prayers of a childless couple of having a child. The delight of the biological parents when they first hold their baby is beyond description and the fee received by the surrogate mother may be a life-saver for her too. Such income could mean a child’s education, or a payment for a new home or a chance to start a new business. Therefore, making poor personal choices is not the same thing as being exploited. If one’s concern is economic exploitation, the solution would be setting a minimum price for these arrangements and even if we were to consider that the position of a pregnant woman entails a lot of danger and that putting another woman to the risk is exploitive, even than the risk involved in pregnancy would not make surrogate arrangements exploitive and therefore morally wrong. People do many risky things for money, why should the line be drawn at undergoing pregnancy. (iii) Surrogacy versus Prostitution Some feminists view the concept of Surrogate motherhood as the product of a sexiest approach and bias, where the sole concern is to have a child with his genes and therefore the husband is willing to pay the emotional price to the Surrogate mother for the privilege of having his genes in the child. Therefore, surrogacy and prostitution are both considered equivalent because both sell their body for economic reasons. Secondly, surrogacy demeans the mother– child relationship and turn women into breeder machines.81 In response to this, proponents of Surrogate motherhood argue that though the motives of pecuniary gain may be operative in both the cases, the latter is very different from the former. Firstly, it is an exercise of reproductive choice and in the surrogate situation, the consent to the relinquishment of the parental rights is obtained before the child is conceived, the mother’s consent to the process represents a conscious and deliberate decision. Secondly, the contract is not to purchase a child but to produce a one for the benefit of childless couple who has no other recourse. Thirdly, the mother is not paid primarily for the consent to give the child in the final phase of the process but for the services performed during their pregnancy. (iv) Surrogacy and Interest of the Child There is a lot of debate surrounding surrogate mothers, i.e., whether surrogate is paid for the product or her services. It is still unsettled as to whether the recipient couple buys the ovum with womb rental or they buy the baby. However, on one point both the groups, viz. pro- and antisurrogate motherhood, agree that the best interest of the child should be of paramount consideration. While the latter maintain that the very process of conception is detrimental to the psychological well-being of the child and

81

Sharma (2008).

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that it serves the interest of only the two parties who bargain over the child for their own happiness, prosurrogates argue that the child’s interests are better served by Surrogate motherhood contracts because firstly, these children get affectionate homes especially waiting for them, and secondly, these contracts are better than private adoption where a stranger may take custody of the child without any natural affection. (v) Surrogacy and Right to Privacy Surrogate motherhood is also argued from the point of view of the right to privacy which has not been expressly provided by our Constitution but is a right which is basically meant for providing protection to individuals from unwarranted legislative and Governmental intrusions. The issue is whether an individual’s right to privacy, if it covers within its ambit, the right to choose surrogacy as an option to gain motherhood, is subject to legislative control or not? According to prosurrogate group, surrogacy arrangements among consenting and competent adults represents an exercise of personal liberty which is not detrimental to third parties or society and the state interference with these arrangements on moralistic grounds may be unconstitutional simply because it exceeds the scope and purposes of state action. (vi) Does Surrogacy Overshadow Adoption? Surrogacy is an expensive choice, but because of its high success rate it is also a preferred choice. There definitely exists a niche for surrogacy. The most common argument against surrogacy is that overshadows adoption, the argument is absolutely useless as it disregards the fact that it is not the ‘Job or the duty’ of the infertile couples to adopt. The couple is completely entitled to make their choice and no one can force them to adopt a child. The main explanation, to a couple’s decision to opt for surrogacy over ‘continued’ treatments, is probably the convenience and the economics of these techniques. Some couple’s choice of surrogacy can be found in the ‘own blood’ philosophy. It is this philosophy that makes couples opt for surrogacy over the more progressive options such as ‘Adoption’. (vii) Surrogacy and Bias against Child The most pertinent question which arises with respect to surrogacy is with regards to its fairness on ethical and medical grounds as it knowingly separates a new born child from the mother. A child is a defenseless being dependent upon others for every need, the primary one being food. It is a known fact that a child gets his or her nutrition from her mother’s milk at least for the first year of birth. It does not just provide nutrition to the newborn child but also builds a bond between both of them. Surrogacy, as practiced today, is heavily biased against the child. It places a responsibility upon the surrogate to not get emotionally attached with the life she is cultivating inside her. Moreover, the child has no say in the entire process. His right to bonding and breastfeeding is denied to him. Further, the surrogate child is not treated at par with other children born via the natural

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process. Hence, their right to survival is undermined since it depends upon the whims of the commissioning parents. However, this argument is not supported by the prosurrogate group. They contend that since the child is immediately handed over to the commissioning mother after birth, he is not deprived of his right of bonding and there is a genuine bond between commissioning mother and the child, a fact difficult to overlook. Moreover, Courts around the world have started to acknowledge the right of the commissioning mother to avail child care and maternity leave. Therefore, the argument that the child is deprived of his right of bonding and care with the mother stands on weak grounds.82 (viii) Surrogacy and Man Playing God A child is traditionally considered to be a gift of god. In ancient and medieval times, the act of procreation was considered a sacred obligation for every married couple to conceive a child. The only option available to childless couples before the advancement of medical science was either adoption or accepting childlessness as their fate decided by God. Consistent advancement in science and technology has led to the development of various Assisted Reproductive Technologies including surrogacy which has come as boon for childless couples around the world. This revolutionary development has enabled them to beget a child which is not just genetically related to them but also gives them the freedom to choose specific traits of the child which they desire. This feature, however, has been criticized for interfering with natural reproductive process.83 In view of the antisurrogate motherhood group, man plays God. In response to these fears, the progroup suggests that moral dilemmas should be decided not by heated emotions and dated dogma, but by public policy which would be truly in the best interests of people. The other justification is that when society gave its nod to other medical inventions such as the pacemaker, organ transplant, etc., which sustain life, then why is there such a hue and cry when it comes to surrogacy. Thus, the above discussion does not provide a clear picture of whether or not surrogacy is ethically and morally justified or does it threaten the existing social, moral and legal considerations that our society has so neatly preserved. The concept of surrogacy is ethical and moral if it does not exploit the situation of either party. Needless to say, that anything new will have to face hostility and fight a battle to find its rightful place in the society. However, cannot be denied that surrogacy has definitely brightened some desolate lives and in the absence of evidences that commercial surrogacy does unduly influence women’s decisions, or that it is harmful or exploitative, it is difficult to argue that parties who wish to engage in surrogacy arrangements should be prohibited from doing so. A positive approach toward reproductive autonomy requires that if women wish to act as surrogates and 82

Kaur (2018) Supra note 80. Challa (2012).

83

1.4 Surrogacy: Issues and Complexities Involved

33

if commissioning parents wish to form families through surrogacy, then such parties should be allowed to engage themselves in surrogacy arrangements. Arguments and concerns including those based on morality or fears for future of the family are only speculative and must not be permitted to take priority over the autonomy-based interests of parties to surrogacy.

1.5

Advantages of Surrogacy Over Other Forms of ART

Procreation is a fundamental drive for humans. While marriages in contemporary times are primarily based on the need for love and companionship along with the need to beget a child, in ancient times, the primary purpose served by marriage as an institution of the society was procreation of a new life. Therefore, for childless couples, surrogacy came as a boon as it gave them a chance to have child that is genetically related to them. Childlessness leads to shame and ridicule in the society which can have serious impact on the marriage of a couple going through it. Thus, surrogacy not just gives these couples a beautiful gift in the form of a child, it also helps in saving marriages from breaking down. The major benefits of surrogacy over other forms of ART are• The most important benefit that surrogacy provides is that it keeps the genetic link between the parents (at least one of them) and the baby alive. It fulfills the natural desire of a biological child. Therefore, it presents a better option to childless couples than adoption. • It can prevent transmission of hereditary diseases from the parents to their biological child. The parents before they proceed with the process can undergo a medical screening to find out if they might transfer any genetic traits that are harmful for their offspring. If the answer is positive, they may prevent such transmission by selecting a surrogate of their choice or by using genetic material from a male or female donor according to their requirements. • In case of couples, who are otherwise fertile but not able to beget a child due to risks involved with the pregnancy, surrogacy remains the only option. Some pregnancies may involve higher risk than others due to medical complications of the mother. Not only it may lead to deformities or diseases in the offspring but it may also endanger the life of the mother as well as the child. For example, in the case of a woman being HIV positive, conceiving a child is not just risky for the mother but also for the future child.84 Thus, the only option available is surrogacy. It also provides the best option in cases where the woman suffers a physical handicap which leads to difficulty in her carrying a child in her womb. Further, it is also a ray of hope to couples who marry late and the woman has crossed her natural age of conception.85 84

Gostin (1988). Brinsden (2005).

85

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1 Introduction to Surrogacy

• Surrogacy also provides the opportunity to gays, lesbians, transgenders and even single men and women to raise a child and thereby helps in creation of non-traditional families. Since the process of reproduction involves the union of a male and a female partner, the abovementioned category of persons is unable to procreate naturally. Thus, in such situations, surrogacy is a means to satisfy the desire of a child.

1.6

Conclusion

Assisted Reproductive Technologies have come as a boon for every couple who are unable to beget a child for various reasons. Whether it is artificial insemination, a procedure known since medieval times and practiced on horses for their breeding or whether it is the recently devised technique of in vitro fertilization where the process of fertilization occurs outside the body, literally inside a test tube, Assisted Reproductive Technologies have been practiced since long. The procedure of surrogacy however provides another option, and it is surrogacy only which has proved to be the most widespread yet the most controversial of all the ART practices. It provides an option not just to infertile couples but even to gays, lesbians and single men and women to beget a child. It has brought immense joy in the life of various people across the globe by begetting them a child, a dream unconceivable for many. It might lead us to believe that since the practice helps in procurement of children, it must be enjoying wide acceptance and acclaim. But this is hardly the case. The practice is marred with several legal, moral, ethical and social issues and objections since it not just interferes with the natural process of reproduction but also makes the entire process of procreation, a contractual and transactional process. This does not blend well with the traditional and orthodox elements of the society. It is not an isolated phenomenon in itself. Myriad of social issues overlap such as gender equality, children’s rights, wealth distribution, race, color, etc. which play a defining role in determining familial relationships. Similarly, various legal issues pertaining to the right of the new born child, the right of the surrogate mother, intended parents and the involvement of third parties are also involved. Thus, framing legislation on surrogacy has posed severe social, judicial and legislative challenges to Courts and policy makers across jurisdictions as there is need to ensure protection of various legal and human rights of the stakeholders involved in surrogacy arrangements. Therefore, at a time when the Indian Parliament is on the verge of bringing about legislation regulating surrogacy, it is imperative to analyze the perspective of various stakeholders involved with the process along with analyzing the law relating to the same in other jurisdictions globally to have a better understanding of the challenges as well as the needs regarding surrogacy.

References

35

References American Law Report. (1989). Validity and Construction of Surrogate Parenting Agreement, 77 A.L.R. 4 70. Ansari, A. H. (1995). Artificial insemination: Indian perspective. Supreme Court Journal, 1, 11–20. Assisted Reproductive Technology Surveillance-United States 2005. (2012). Available at https:// www.cdc.gov/mmwr/preview/mmwrhtml/ss6406a1.htm. Accessed May 17, 2019. Brinsden, P. R. (2005). Surrogacy. In Brinsden, P. R. (Ed.), Textbook of in-vitro fertilization and assisted reproduction (Vol. 1999, pp. 1–564). New York: The Parthenon Publishing Group. Challa, K. (2012). Contentious issues in surrogacy: Legal and ethical perspectives in India. Christ University Law Journal, 1, 117–126. Chawan Pratibha Ganesh. (2008). Psychological and legal aspects of surrogate motherhood. AIR (Journal), 103. Chawla, M. (2009). Surrogacy: A need for a new law. Civil and Military Journal, 45(4), 191. Coleman, M. (1996). Gestation, intent and the seed: Defining motherhood in the era of assisted human reproduction. Cardozo Law Review, 17, 497. De Lair, C. (2000). Ethical, Moral, economic and legal barriers to assisted reproductive technologies employed by Gay Men and Lesbian Women. DePaul Journal of Health Care, 4, 147. Deech, R. (1996–1998). Human fertilization: Meeting the challenges. Inter Alia, 2, 23. Diwan, P. (1980). Technological Niyoga & Nirodh and social engineering through law. Journal of the Indian Law Institute, 22, 445. Dolgin, J. L. (1997). Defining the family: Law, technology and reproduction in an uneasy age (p. 35). New York: New York University Press. Doshi, V. (2016). We pray that this clinic stays open: India’s surrogates fear hardship from Embryo Ban. The Guardian. Available at https://www.theguardian.com/world/2016/jan/03/ india-surrogate-embryo-ban-hardship-gujarat-fertility-clinic. Accessed November 18, 2020. Draft Assisted Reproductive Technologies Bill. (2014). Available at https://www.prsindia.org/ uploads/media/draft/Draft%20Assisted%20Reproductive%20Technology%20(Regulation)% 20Bill,%202014.pdf. Accessed 8 April, 2018. Fyzee, A. A. A. (1974). Outlines of Mohammadan Law. Oxford University Press. Garner, B. A. (2004). Black’s law dictionary (9th ed.). USA, West, 1952. Garrison, M. (2000). Law making for baby making: an interpretive approach to the determination of legal parentage. Harvard Law Review, 113, 835. Goldstein, K. L., & Okinaga, C. H. (2001–2002). Assisted reproductive technology. The Georgetown Journal of Gender and the Law, 3, 412. Gostin, L. O. (1988). A civil liberties analysis of surrogacy arrangements. Law, Medicine and Health Care, 16, 7–17. Gurevich, R. (2020). The past and future of in vitro fertilization: Beginnings, history, and future of the “Test Tube Baby”. Available at https://www.verywellfamily.com/what-does-in-vitro-mean1960211. Accessed November 18, 2020. Gupta, J. A. (2006). Towards transnational feminisms, some reflections and concerns in relation to the globalization of reproductive technologies. European Journal of Women's Studies, 23(13), 30. ICMR. (2005). Indian Council of Medical Research, National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, ICMR (2005). Available at https://main. icmr.nic.in/sites/default/files/art/ART_Pdf.pdf. Accessed June 8, 2018. Kaur, H. (2018). Surrogacy: Moral, ethical and legal issues. Pramana Research Journal, 29(III), 118–123.

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Klayman, E. I. (1970). Therapeutic impregnation. Cincinnati Law Review, 39, 310. Koyonda, S. O. (2001). Assisted reproductive technologies in Nigeria: Placing the law above medical technology. Comparative and International Law Journal of Southern Africa, 43, 67. Luik, E. (2017). Cross-border surrogacy: Exploiting low income women as biological resources? https://www.theguardian.com/science/blog/2017/mar/28/cross-border-surrogacy-exploiting-lowincome-women-as-biological-resources. Accessed November 18, 2020. Srinivas, M. (2010). Assisted reproductive technology: Legal issues. Andhra Law Times, 166(15), 28. Malhotra, J., Malhotra, N., & Chaturvedi, S., et al. (2001) Surrogacy and adoption. The Infertility Manual, 398. Montgomery, J. (2003). Health care law (p. 394). London: Oxford University Press. NSW Law Reform Commission. (1988). REPORT 60: Artificial conception: Surrogate motherhood. Available at https://www.lawreform.justice.nsw.gov.au/Documents/Publications/ Reports/Report-60.pdf. Pillai, A. V. (2020). Surrogacy: Legal, ethical and moral issues. Available at https://www. researchgate.net/publication/340755343_SURROGACY_LEGAL_ETHICAL_AND_MORAL_ ISSUES. Accessed 10 May 2021. Rose, A. P. (1999). Reproductive misconception: Why cloning is not just another assisted reproductive technology. Duke Law Journal, 48, 1133–1156. Saini. (2015). Legitimacy and status of artificial human insemination in muslim law, Dr. Raj Kumar Saini. Ascent International Journal For Research Analysis, III(I A). Available at http:// www.ijcms2015.co/file/2018-vol-III-issue-II/aijra-vol-iii-issue-2-29.pdf. Accessed April 20, 2021. Sharma, R. (2008). An international, Moral and legal perspective: The call for legalization of surrogacy of India. All India High Court Cases, 14(7), 105. Sidharacharyulu. (1998). Surrogacy: Legal implications. North Carolina Central Law Journal, 3, 60–61. Smerdon, U. R. (2008). Crossing bodies, crossing borders: International surrogacy between the United States and India. Cumberland Law Review, 39(1), 15–86. Srinivasan, S. (1997). Surrogacy comes out of the closet. Sunday Times of India, July 6, 1997. Wilder. B. (2002). Assisted reproductive technology: Trends and suggestions for the developing law. Journal of American Academy of Matrimonial Lawyers, 207. https://www.cdc.gov/mmwr/ preview/mmwrhtml/ss5705a1.htm. Accessed May 17, 2019.

CASES Anonymous v. Anonymous N.Y.S. 246 2d 835 (Sup.Ct.1964). Baby Manji Yamada v. Union of India AIR (2008) 13 SCC 518. Doornbos v. Doornbos139 N.E. 2d 844 (1956). Gursky v. Gursky 242 NY.S.2d 406 (Sup.Ct.1963). Jan Balaz v. Anand Municipality and Ors, AIR 2010 Guj. 21. Jayashree Wad v. Union of India, Writ Petition 95 of 2015. Jaycee B v. Superior Court 42 Cal. App. 4th 718 (1996). Johnson v. Calvert 5 Cal.4th 84, 851 P.2d 776 (1993). Joseph Shine v. Union of India (2018) 2 SCC 189. Maclennan v. Maclennan Sess. Cas. 105 (1958). Matter of Baby M, case 537 A2d 1227 (NJ 1988). Orford v. Orford 58 D.L.R.251 (1921). People v. Sorensen 68 Cal, 2d 280 (1968). R.E.L. v. E.L. 1All E.R.141(1949).

CASES Slater v. Slater 1 All ER 246 (1953). Strand v. Strand 78 N. Y.S. 2d 390 (1948). Surrogate Parenting Associates, Inc. v. Armstrong 704 S.W.2d 209 (KY1986).

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Chapter 2

Surrogacy: Laws and Policies Across the Globe

2.1 2.1.1

Israel The Evolution of the Law

Israel is one nation where surrogacy laws have had a complete makeover. After there being a ban on commercial surrogacy as a repercussion of the Baby M case, vide the complex Embryo Carrying Agreements (Authorization Agreement & Statutes of the Newborn Child) 1996, surrogacy was legalized. The law on surrogacy was passed with remarkable urgency as compared to laws on other reproductive techniques. The process began on November 16, 1994, when a group of 25 infertile couples including the Nachmani, a childless Israeli couple (prior to their estrangement) filed a petition in the Israeli Supreme Court demanding the government to revoke the regulations that prohibited surrogacy arrangements.1 It was met by a positive response from the Israeli government as they asked the Court to let the regulations be in place until the government brings in a new law regarding the same. At the same time, a Commission called the Aloni Commission (for short, ‘The Commission’) was set up by the government to look into the pros and cons of the practice to help in a better enactment and implementation of the law. The Commission recommended a liberal regulatory framework advocating the principles of autonomy, privacy and minimum interference of State in private matters of individuals such as reproduction.2 Three primary recommendations given by the Commission were: • Formation of a separate committee for psychological counsel of both parties, i.e., the commissioning parents as well as the surrogates

1

50(4) P.D. 661 (Isr.) 1996. The Aloni Commission Report (1994).

2

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 H. Kaur, Laws and Policies on Surrogacy, https://doi.org/10.1007/978-981-16-4349-1_2

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• Payment of only expenses to the surrogate • The surrogate once commissioned should not be allowed to change her mind3 It may be apposite to state here, framing of this law also witnessed the influence of existing ‘Cult of Fertility,’4 pro-natalist ideology in Israel promoting compulsory motherhood wherein all Israeli women were required to participate. Therefore, this law on surrogacy provided a legal justification to this cult and perpetuated the need to populate a nation in a permanent State of war with its neighbors.5 It reinforced the social pressure on Israeli women to reproduce as part of a ‘national mission.’ In fact, the right to become a parent was stronger than man’s right not to become a father was recognized by the Israeli Supreme Court in the case of Nachmani v. Nachmani.6 Infertile couples had started venturing abroad, particularly to countries like USA for surrogacy. However, the entire process was not only extremely expensive due to the high cost of the surrogate as well as traveling but also caused a problem when the surrogate was not Jewish and hence the child would not be accepted socially or legally in Israel due to traditional Jewish laws. While in countries like UK and Canada, moral obligations act as a hindrance for the legislature in accepting the procedure as a viable alternative to reproduction, however such considerations are overshadowed in Israel due to the social and cultural pressure to reproduce and populate.

2.1.2

Embryo Carrying Agreements (Authorization Agreement & Statutes of the Newborn Child) 1996

Israel recognizes allows only gestational surrogacy vide the Embryo Carrying Agreements (Authorization Agreement & Statutes of the Newborn Child) 1996 which made Israel the first nation globally to start ‘State Regulated Surrogacy’ requiring every surrogacy arrangements to be approved by the State. The law allows presenting of surrogacy arrangements only by citizens of Israel sharing the same religion. In fact, prior to 2018, surrogacy in Israel was limited to heterosexual married couples only and it was in July 2018, when laws were amended to legalize its use by single women (practically lesbians only as same-sex marriages are not been performed in the country). Therefore, under the extant regulations, sterile heterosexual couples, whether married or not, are permitted to hire a surrogate who can be either single/widowed/divorced.7 Further, while on one hand, a single woman can have a child through surrogacy using donated sperm; a lesbian couple

3

Jacqueline (2006). Teman (2016). 5 Yuval Davis (1989). 6 Nachmani, Supra note 1. 7 Teman, Supra note 4. 4

2.1 Israel

41

wishing to have a child through surrogacy cannot use the services of surrogate mother. However, one of them can become biological mother by giving birth herself using a donated sperm and her partner can apply to adopt the minor under Israeli law. Even a homosexual man cannot get a woman in Israel to act as a surrogate mother for him, and give birth to a baby using his sperm, using a donated egg. However, if he succeeds in creating a child abroad, using his sperm, donated egg and a surrogate mother in a country where it is legally permissible and obtains a foreign birth certificate wherein he is shown to be the registered father, then he will be recognized as a biological parent under Israeli law. There is however, one major restriction that the child cannot be created using an egg from the surrogate mother whose role is to offer the services of her womb during pregnancy. While the sperm is required to be provided by the intended father, oocyte is to be provided by the intended mother or an anonymous donor.8 Further, the intended mother providing the oocyte must be between 22 and 45 years of age or between 22 and 51 years if using donor eggs.9 Also, in Israel, the residency of both the prospective parents is a precondition.10 Furthermore, a medical proof has also to be furnished to the effect that the intended mother is unable to beget a child due to prolonged infertility, absence of uterus or due to serious risk to her health.11 However, if the intended mother is not able to provide a sound reason for choosing surrogacy, then she must provide documentation that she has exhausted all other means of begetting a child. The law permits couples to hire the services of a surrogate only for up to two children and not anymore. The administrative body, i.e., the Surrogacy Approvals Committee also meets regularly to decide whether the application received for surrogacy meets all the required criteria set under the law.12 Foreigners cannot use the services of an Israeli surrogate. However, it is possible for foreigners who are eligible to immigrate to Israel under the Israeli law and would become residents as part of the process.13 Such restrictions on surrogacy in Israel have prompted various intended parents to choose surrogates outside their country. Thus, it can be seen that the above-mentioned legislation was merely a way to put State control on legally married Jewish heterosexual couples who wished to pursue alternative reproductive methods if they could not reproduce normally. In short, it was a measure provided to childless couples in extreme cases to experience parenthood and was not a standard solution for every case of infertility. In fact, the law seems to be framed in a way so as to accommodate the concerns of the conservative as well as the liberal-secular sections of society. Several provisions of

8

Ibid. Ibid. 10 Ibid. 11 Ibid. 12 It includes an expert for inside medication, two gynecologists, a State social labor, a clinical therapist, a legal advisor and a rabbi, too as a Christian minister and a Muslim Kadi, who are approached in situations where the candidates are definitely not Jewish. 13 Kaur (2013). 9

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the legislation are also in consonance with the traditional rabbinic perspective on surrogacy. For example, a child born from an adulterous relationship between a married woman and a man who is not her husband is considered to be ‘bastard’ and therefore, the law prescribes a surrogate to be either single, widowed or divorced.14 Another rabbinic view is that two children born from the same womb cannot marry as it amounts to incest, even if the two are not genetically related to each other. In order to prevent this situation from occurring, the law specifically prescribes that the surrogate shall not be related to either of the intended parents in any manner whatsoever. Furthermore, a list has also to be maintained of every child born to a surrogate so that the aforementioned situation does not occur. Also, the law further prescribes that children born from such arrangements are fully ‘kosher,’ i.e., both the surrogate and the intended parents should be Jewish. The Jewish doctrine of ‘Halakha’ mandates Jews to reproduce by asking them to be fruitful and multiply and emphasizes on the importance of child rearing and family integrity. It also suggests Jews to help other childless couples to fulfill the above. Further, this law on surrogacy not only adheres to the Jewish law but also to the nationalistic concerns related with surrogacy. For example, it is mandatory for both set of parents, intended as well as surrogate, to be Israeli citizens or permanent residents of the country and completely prohibits international parties from partaking in the arrangement on Israeli soil. The evidence of the law enhancing nationalistic goals can be found when the law prevents cross-religious surrogacy. Lastly, in no occasion may the substitute give the oocyte herself, in this way killing conventional surrogacy and also compels all arrangements to adjust to the gestational sort, which relies upon IVF innovation. All IVF procedures should be performed in a State approved fertility unit in an Israeli medical clinic, in this way guaranteeing the consistent oversight of the surrogacy course of action through an all-inclusive ‘arm’ of the State. As already discussed, under the current regulations, only heterosexual married and single women had been allowed to access surrogacy and it still excluded single and gay men as well as same-sex couples making them search for a surrogate in another country, which may be substantially more difficult and costly in monetary terms which led to protests by such groups. However, recently on February 27, 2020, the Israeli Supreme Court recognized the rights of same-sex couples to access surrogacy on equality grounds and ruled against this surrogacy law holding the exclusion of same-sex couples and single men as discriminatory and violative of the right to equality and the right to parenthood of these groups thereby declaring it as unconstitutional and giving the government an year to amend a 2018 law.15

14

Ibid. Itai Arad-Pinkas et al. v. The Authorization Committee for Agreements for Carrying Fetuses et al. (27.2.20).781/15 Supreme Court of Israel (February 27, 2020) [Before: The Honorable President E. Hayut, The Honorable Deputy President H. Metlzer, The Honorable Justice N. Hendel, The Honorable Justice A. Fogelman, The Honorable Justice Y. Amit] [Hon. President E. Hayut].

15

2.2 Canada

2.2

43

Canada

In Canada, only altruistic surrogacy arrangements, whether traditional or gestational, have been recognized and held legal. There was no Federal Regulation regarding surrogacy until the Assisted Human Reproduction Act16 (AHRA), 2004, was passed by the Federal Government of Canada.

2.2.1

The Evolution of the Assisted Human Reproduction Act 2004

The evolution of the Act can be traced back to the formation of the Royal Commission on New Reproductive Technologies in 1989.17 This Commission was appointed to suggest suitable sociological responses after carefully studying and analyzing the socioeconomic, ethical and legal implications of new reproductive technologies.18 It was after four years of discord and disagreement that the Commission finally submitted its report in the year 1993. Even more remarkable is the fact that the AHRA was passed in 2004, i.e., after 11 years of the submission of the report and went through significant changes till its adoption having taken place finally in the year 2004 and which emerged as not just a socio-ethical but also a criminal law legislation. Under this Act, commercial surrogacy is explicitly prohibited, and it is a criminal offence to pay for the services of a surrogate or even arranging for the services of a surrogate mother.19 The offender in such a case is made liable either to a fine of $500,000 or imprisonment of up to 10 years or both.20 However, the AHRA permits any woman, who becomes a surrogate mother and carries a baby for an infertile couple, to be reimbursed for the expenses, such as pre-natal vitamins and costs paid for traveling to the doctor’s office. She is, however, not entitled for any remuneration for carrying the baby. All payments in excess of a surrogate mother’s out of pocket expenses are considered to be criminal. Further, the Act only allows spouses, ‘common law partners’ and sexual partners to avail surrogacy.21 Under the Act, Common law partner means a person who is cohabiting with another person in conjugal relationship for at least a period of one year.22 Since Canada banned payment to egg and sperm donors, as well as surrogates, questions as to when a reimbursement or other exchange of money might 16

Assisted Human Reproduction Act (hereinafter referred to as AHRA), 2004. Available at https:// laws-lois.justice.gc.ca/eng/acts/a-13.4/. Accessed May 9, 2015. 17 Proceed with Care (1993). 18 Nelson (2016). 19 AHRA, supra note 16 at ss. 6–7. 20 Id., s. 60. 21 Id., s. 10 (2). 22 Id., s. 10(5).

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count as a ‘payment’ and risk criminal prosecution under Canada’s Assisted Human Reproduction Act, and when it is permissible, have persisted. In this regard, Section 12 of the Assisted Human Reproduction Act which addressed the reimbursement of expenses was never brought into force. Even more troublesome was the fact that while the Act stipulated reimbursements to be made in accordance with ‘the regulations,’ yet no regulations were ever developed or promulgated. This left a huge gap in the law. Fertility Lawyers faced considerable challenges trying to differentiate what was a legitimate reimbursement from what might be found criminal. This in turn left intended parents, as well as surrogates and donors with a great deal of uncertainty. Even after a decade and a half of the AHRA having been passed, the true effects of the legislation are yet to be witnessed, the primary reason being the cumbersome process of regulations. However, in 2019, the Health Canada23 clarified that a surrogate mother can be reimbursed for expenses such as purchasing medications, traveling and parking costs for medical checkups related to surrogacy, purchase of maternity clothes under Section 12(1) of the AHRA.24 Further the surrogate may also be reimbursed for loss of earning in case the surrogate is advised bed rest in writing by the physician. Prior to the introduction of the guidelines relating to reimbursement of expenses incurred by surrogates in 2019, many intended parents preferred to pay the surrogate in cash so that there was no paper trail leading up to them as there was a lot of ambiguity regarding as to what the expenses were. There have also been many instances of intending parents getting cheated by con-artists posing as surrogates because the former chose to go for surrogacy without getting tied down to a surrogacy contract for fear of being prosecuted under the AHRA.25 Therefore, after almost fifteen years of the enactment of AHRA, Section 12 of the AHRA has now come into the force on June 9, 2020, along with guidelines relating to reimbursement of expenses incurred by surrogates and donors with an intent to protect the health and safety of such Canadians who use or are born through the use of Assisted Reproductive Technologies like in vitro fertilization and surrogacy. The regulations are expected to provide couples struggling with infertility, the LGBTQ community, and single individuals, with more flexibility in rearing their families by setting out exhaustive categories of reimbursable expenses including travel, insurance, legal fees, fee for counseling services, fee requiring for care of dependents and pets, etc.26 The new regulations also introduce more onerous reimbursement requirements in as much as surrogates and donors are required to complete signed declarations in addition to providing receipts.27

23

Health Canada is the federal body responsible for administration and enforcement of AHRA. Health Canada (2019). Available at https://www.canada.ca/content/dam/hc-sc/documents/ programs/consultation-reimbursement-assisted-human-reproduction/r-regulations-guidance-documenteng.pdf. Accessed Jan 24, 2020. 25 Burpee (2009). 26 Health Canada, supra note 24, pg. 11. 27 Ibid. 24

2.2 Canada

45

In Canada, while it is apparent that there is no financial incentive to become a surrogate, surrogates in Canada find surrogacy more emotionally fulfilling.

2.2.2

Contract Law and Surrogacy

The jurisdiction to make laws on different subjects in Canada rests with different levels of government. Since criminal law comes within the ambit of the Federal Government, it chose to define the legality of surrogacy from that perspective. However, surrogacy also encompasses other aspects of law such as contract and family law, subjects which fall under the jurisdiction of Provincial Government. It is specifically provided by the AHRA that the Act does not prohibit the validity of any surrogate agreement under any provincial law under which an individual agrees to be a surrogate mother.28 However, the law in most provinces is rather unsettled as most of the provinces have not enacted any law regarding the legality of surrogacy agreements, the province of Quebec being the only exception. The Civil Code of Quebec under Article 541 unequivocally provides that surrogacy contracts are absolutely null and void.29 The Quebec law states that it shall be contrary to public policy if any woman enters into an agreement to become pregnant to bear a child of another person or couple, and therefore, such an agreement shall also not be enforceable.30 However, in certain cases, the appellate Court permitted adoption of a child born from such an agreement on the reasoning that the contract did not preclude the intending parents from adopting the child so born and that it was also in the interests of the child.31 In fact, the Quebec government in September 2016 announced its decision to amend its civil code to recognize and regulate surrogacy on the basis of the recommendation of the Committee formed in 2013 as a result of the decision of the Canadian Supreme Court in the case of Quebec (Attorney General) v. A.32 wherein the provisions of the Civil Code which deny de facto spouses the same financial rights and obligations as married spouses were held constitutional. However, the debates surrounding this case brought to fore, the ways in which Quebec families evolved over the past decades and which indicated that Quebec family law may not adequately reflect social developments. The committee which was formed reviewed the same and recommended vide its report to repeal article 541 of the Civil Code of Quebec and to replace it with provisions that clarify the rights and obligations of parties to a surrogacy agreement and the filiation of 28

AHRA, supra note 16 at s. 6(5). According to Article 541 of Civil Code of Quebec, ‘Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.’ 30 According to Article 1417 of Civil Code of Quebec, ‘A contract is absolutely null where the condition of formation sanctioned by its nullity is necessary for the protection of the general interest.’ 31 09,184, 2009 QCCQ 9058 (CanLII); 10,330, 2010 QCCQ 17,819 (CanLII). 32 2013, SCC 5. 29

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children born through surrogacy. The Committee recommend such changes with a view to recognize diverse family forms, to support the best interests of children born through surrogacy and to protect the dignity of women who served as surrogate mothers.33

2.2.3

Family Law and Surrogacy

The moment a surrogate child is born, while the rights of the surrogate and the intended parents take a backseat, the discussion regarding the legal status of the child so born comes to the forefront. It is imperative for the authorities to determine the legal parentage of the newborn in order to make all the requisite social arrangements made by parents such as education and healthcare for the child, to reflect in law. Once again and predictably so, the law in Canada seems to be ambiguous on this issue as well. Since this issue is under the jurisdiction of the States, different States have dealt with it differently. The variation is such that it is difficult to generalize the process and reach a conclusion regarding the law. However, it is seen that most provinces presume the surrogate to be the mother of the child and a judicial process is required to change the parentage. In the province of Alberta, the intended parents are regarded as the legal parents of the child under Section 8.2. of the Family Law Act S.A. 2003, provided they have a declaration to that effect from the Jurisdictional Court subject to there being a consent for such declaration from the surrogate. Further, under the Vital Statistics Act S.A.2007, the intended parents can also get their names mentioned on the birth registration document of the child born from surrogacy.34

2.3

Australia

Unlike Canada, Australia does not have a federal law on surrogacy. The jurisdiction to legislate regarding family law rests with the Commonwealth, however, matters regarding surrogacy in Australia are regulated by the provinces. The first national inquiry on surrogacy in Australia was conducted in the year 1985 when a blanket ban on commercial surrogacy was recommended by the Family Law Council.35 In 1988, a second enquiry committee was set up by the government where the National Bioethics Consultative Committee recommended a Federal legislation to

33

Stefanie Carsley, Reconceiving Quebec’s Laws on Surrogate Motherhood, 2018 96–1 Canadian Bar Review 121, 2018 CanLIIDocs 133. Available at https://cbr.cba.org/index.php/cbr/article/ view/4452. Accessed on June 1, 2021. 34 Vital Statistics Act, S.A. 2007, c V-4.1, s. 3. 35 Stuhmcke (2004).

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47

allow and regulate altruistic surrogacy. However, despite these recommendations, the Reproductive Technology Working Group established by the Health Minister’s Advisory Committee recommended the provinces in the year 1991 to prohibit surrogacy and thereby making all surrogacy contracts void. While altruistic surrogacy is permitted in all Australian provinces except in the Northern Territory, however, there are many inconsistencies in legislations across the States especially in matters relating to approval required by commissioning parents from a legislative body; and, (b) contribution of genetic material by the intended parents or the surrogate.36 Let us now look at the regulations in the seven Australian States and territories to gain a better understanding of the situation prevailing in the country.

2.3.1

Queensland

Prior to the enactment of the Surrogacy Act 2010 in the State, Surrogate Parenthood Act of 1988 was in force prohibiting all forms of surrogacy, whether altruistic or commercial. Further, there was a penalty of $10,000 or imprisonment of up to three years for entering into a surrogacy contract in Queensland,37 or even entering into a surrogacy contract abroad or in another Australian State.38 The Act stated that all surrogacy arrangements were void in nature39 and even prohibited surrogacy advertisements. It was only in the year 2008 that a recommendation regarding decriminalizing altruistic surrogacy was mooted by a Select Committee of the Parliament of Queensland.40 This led to the introduction of the Surrogacy Bill in 2009 which later became the Surrogacy Act of 2010. The Act allows altruistic surrogacy while it prohibits commercial surrogacy.41 There is no bar regarding the marital status or sex of the intended parents, i.e., the services of surrogate can be availed by either a married couple, same-sex couple or a single parent.42 Further, 36

Llewellyn (2015). Surrogate Parenthood Act, 1988, s. 3(1) (Queensl.). 38 Id., s. 3(2). 39 Id., s.s. 3–4: Also see Burpee (2009), supra note 25 at 313. 40 Standing Comm. Of Attorneys-General Australian Health Ministers’ Conference Cmty. & Disability Serv. Ministers’ Conference, Joint Working Group, A Proposal for A National Model To Harmonise Regulation Of Surrogacy 24–32 (2009). 41 Surrogacy Act, 2010, s.11 (Queensl.).The section provides that a commercial surrogacy arrangement is a situation if a person receives a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother’s surrogacy costs) for the person or another person—(a) agreeing to enter into or entering into the surrogacy arrangement; or (b) permanently relinquishing to 1 or more intended parents the custody and guardianship of a child born as a result of the surrogacy arrangement; or (c) consenting to the making of a parentage order for a child born as a result of the surrogacy arrangement. 42 Id., s.9. It mentions the word ‘person, while defining a couple and not the genders man or woman. 37

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the Act only allows payment to the surrogate for the reimbursement of the expenses incurred by her in the process of surrogacy.43 The surrogate also has the right to manage her pregnancy as any other woman does. Under the said Act, surrogate is considered to be the parent of the child till there is a transfer of parenthood to the intending parents and which transfer is required to be done in a window of 28 days to 6 months after the child begun residing with the intended parents.44 Further, the parentage order, under the Act, would only be made and granted after all parties, i.e., the intended parents and the birth mother would give their consent. In addition to the above, the Act enlists a number of procedural requirement which are tedious and are to be fulfilled and which include preparation of a surrogacy guidance report by a qualified counselor and the State prior to the making of the parentage order. It is also provided that once the parental order is made, the child shall be considered to be the child of the intended parents for the purpose of the Family Law Act and if the intended parents do not apply for a parentage order within six (6) months from the birth of the child, then they will need to have a permission from the children’s Court to do so. Further, to obtain a parentage order, the Surrogacy Act imposes a number of requirements including that both the birth mother and the intended parents have attained 25 years of age; the applicant, or each of the joint applicants is a resident in Queensland45; there is evidence of a medical or social need for the surrogacy arrangement; and both the parties have independently obtained legal advice regarding implications of a surrogacy arrangement, etc. In case of a dispute between the two parents, the Act provides that the Children’s Court shall decide the dispute.46 If the intended parents do not take the custody of the child, then the surrogate mother is to be considered the parent of the child. And if a case arises whereby the surrogate refuses to transfer the parentage of the child to the intended parents, the latter can file an application in the Court to determine the parentage of the child. Till the time parentage is decided, the surrogate remains as the legal parent of the child.

2.3.2

South Australia

The South Australian law on Surrogacy was initially governed according to Family Relationships Act, 1975 permitting only altruistic surrogacy.47 The 1975 Act recognized the surrogate as the legal mother of the child and not the egg donor.48

43

Surrogacy Act, 2010, s.11 (Queensl.).Available at https://www.legislation.qld.gov.au/view/pdf/ 2016-03-22/act-2010-002. 44 Id., s.21. 45 Id., s.22. 46 Id., s.13. 47 Burpee, supra note 25 at 316. 48 Ibid.

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Similarly, even sperm donors were not considered the legal parents of the child born from the arrangement.49 Most importantly, the right to surrogacy was only provided to married heterosexual infertile couples. However, the Parliament of South Australia has now recently passed the Surrogacy Act, 2019 where under a surrogacy agreement needs to be in writing and should be containing a lawyer’s certificate certifying that both parties have obtained independent legal advice on the agreement along with counselor’s certificate verifying that both parties have undergone the process of counseling by an accredited counselor while setting out the arrangements relating to payment of reasonable surrogacy costs (i.e., medical expenses, fertility treatment expenses, postnatal care, out of pocket expenses, loss of income, etc.).50 The Act also talks of obtaining Court orders by the intended parents from the Youth Court after the birth of child on an application moved by either one or both the intended parents not less than 30 days from the date of birth of child but which period should not exceed 12 months. However, if the Court considers it is in the best interests of the child or that exceptional circumstances exist, the time period can be extended by the Court.51 Further, under the Act, till the time such an order is made, it is the surrogate and her partner who would be considered to be the legal parents of the surrogate child. It is also apposite to mention, people who were previously excluded from the opportunity of becoming parents due to their relationship status or infertility challenge, under the Act, have been allowed access to parenthood via surrogacy as well as pursue IVF treatments interstate. Single men and women are also allowed access to surrogacy agreements and it has not been made limited to just married or de facto couples only.52 Most importantly there is no longer a requirement for the intended parents to provide their own genetic reproductive material and they can now use a donor egg and/or sperm. Further, under section 10 (3)(f) of the Act, the surrogate mother and the intended parents need to be at least 25 years of age and must either be Australian citizens or a permanent resident of Australia.53 While commercial surrogacy agreements are still not permitted, parties to a surrogacy agreement can reimburse the surrogate mother for loss of income and can advertise for a surrogate as long as it is not for ‘valuable consideration.’54 The parties can seek and pursue IVF treatment outside South Australia and further, as per the Act, parties also need to provide each other with a criminal history report of the previous 12 months period prior to entering into the surrogacy agreement and at 49

Ibid. Surrogacy Act 2019, s. 11. Available at https://www.legislation.sa.gov.au/LZ/C/A/SURROGACY %20ACT%202019/CURRENT/2019.31.AUTH.PDF. 51 Id., s. 14&18 (S. Austl.). 52 Id., at s. 10(2)(b); The provision uses the words “a person” or “both persons” who can be a party to a lawful surrogacy agreement as an intended parent. 53 Id., s. 10(3). 54 Id., s. 11; Sections 24, 25 and 26, respectively, of the Act regards arranging, inducing and advertising for surrogacy in lieu of ‘valuable consideration’ to be an offence and stipulates penalty too for the same. 50

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least one of the following circumstances must also exist, i.e., inability to carry a pregnancy or medical risk associated with pregnancy or inability to give birth, by the reason of gender identity, sexuality or any other reason.55 Till the time order is made, the surrogate and her partner are the baby’s legal parents. In so far as singles and same-sex couples are concerned, South Australia was one of the jurisdictions in Australia, the other being Western Australia to have banned singles and same-sex couples from opting altruistic surrogacy vide the Statutes Amendment (Surrogacy) Act 2009. However, in the year 2017, vide the Statutes Amendment (Surrogacy Eligibility) Act 2017, the legal bar for same-sex couples from opting altruistic surrogacy was uplifted and with this amendment, South Australia became the fifth jurisdiction to permit altruistic surrogacy to be practiced by same-sex couples for rearing children. The other four were Tasmania, NSW, Victoria and the Australian Capital Territory. The Statutes Amendment (Surrogacy Eligibility) Act 2017 also amended the Family Relationships Act 1975 to extend access to lawful surrogacy agreements to non-heterosexual couples.

2.3.3

Tasmania

In Tasmania, the surrogacy arrangements are governed by The Surrogacy Act 2012. Prior to the 2012 Act, the Tasmania’s Surrogacy Contracts Act of 1993 regulated the law on surrogacy in the State. It made any contract regarding surrogacy, altruistic or commercial void and unenforceable56 and also prohibited any third party from helping a couple avail of their services for begetting a child through surrogacy.57 The Surrogacy Act 2012, however, legalizes altruistic surrogacy arrangement and unsurprisingly prohibits commercial surrogacy. The Act further allows married, de facto/same-sex couples and single persons to avail the benefits of altruistic surrogacy as Section 5 of the 2012 Act uses the word ‘person or persons’ for ‘intended parent or intended parents.’ Further the Act requires the surrogate mother to be of at least 25 years of age having one living child of her own and the intended parents need to be at least 21 years of age and must either be Citizens of Tasmania or a permanent resident of Tasmania.58 While there is still no permission granted to execute commercial surrogacy agreements, a surrogate mother can nevertheless be reimbursed for loss of income by the parties to the surrogacy agreement.59

55

Id., s. 10(4)(g). Surrogacy Contracts Act, 1993, s. 7 (Tas.). 57 Id., s. 4. 58 The Surrogacy Act 2012 Id., s. 16 Available at https://www.legislation.tas.gov.au/view/html/ inforce/current/act-2012-034. 59 Id., s. 9(3). 56

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2.3.4

51

Victoria

Victoria became the first State to introduce a legislation specifically dealing with surrogacy in 1974 which, however, came to be replaced by the Infertility Treatment Act in the year 1995. The 1995 Act predictably prohibited surrogacy and its advertisement and a penalty of 240 penalty units or 2 years imprisonment (or both) was imposed for practicing surrogacy.60 The 1995 Act allowed a woman to undergo IVF only if she was infertile and thus unlikely to become pregnant.61 Therefore, the Act in effect prohibited potential surrogates to undergo IVF since most of them were fertile enough to become one in the first place and left them with only traditional forms of insemination to undergo the process. However, in 2008, these concerns were mitigated by the Assisted Reproductive Treatment Act of 2008 passed by the Victorian legislature which required the intended mother to be infertile while still prohibiting commercial surrogacy stating all such contracts to be void in nature.62 The Assisted Reproductive Treatment Act, 2008 which became effective on the first day of January, 2010, requires all Gestational surrogacy arrangements to be approved by a Patient Review Panel.63 It requires the commissioning parents to be infertile, unable to carry a pregnancy or a medical risk involved with the mother or the baby if pregnancy occurs. Therefore, single parents and same-sex couples are also eligible to apply for surrogacy in Victoria. Further, it requires the intended parents to be residents of Victoria and to be at least 18 years old. Further, the minimum age for the surrogate has been prescribed to be 25 years and who has previously been pregnant and has delivered a child.

2.3.5

Western Australia

The Surrogacy Act of 2008 governs surrogacy arrangements in Western Australia (WA) and permits altruistic surrogacy arrangements while prohibiting commercial surrogacy by treating it as an offence.64 The Act permits a couple to take recourse to altruistic surrogacy in cases where they are not able to conceive a child due to medical complications or even if able to conceive, the child is most likely to suffer from a genetic abnormality or a disease. However, in order to opt for such an arrangement, the couple shall have to undergo a comprehensive assessment and

60

Infertility Treatment Act, 1995, s. 59 (Vict.). Id., s. 20. 62 Assisted Reproductive Treatment Act, 2008, s. 44 (3) (Vict.). 63 Surrogacy Matters (2016). 64 Surrogacy Act, 2008, s.s. 8–9 (W. Austl.). Available at https://www.legislation.wa.gov.au/ legislation/statutes.nsf/law_a146696.html. 61

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approval from the Human Reproductive Technology Council (HRTC)65 and it further mandates the couple/birth mother/donor to undertake counseling regarding surrogacy implications, at least 3 months prior to taking approval from the Council. The parties have also to necessarily take independent legal advice regarding the effects of a surrogacy arrangement and they have to get themselves medically assessed by a medical practitioner to assess their suitability to be involved in a surrogacy arrangement.66 The Act allows advertisement and publishing of stories regarding altruistic surrogacy and even provides for compensation to surrogates for the costs incurred by them with respect to surrogacy while they are pregnant covering loss of earning due to maternity leave, medical costs, premium payments for insurance claims, counseling costs, etc.67 The Act allows issuance of orders by the Court for parental status of intended parents68 while keeping in mind the best interests of the child. There is however a presumption under the legislation of the best interests of the child being served by being with the intended parents unless and until there is evidence to the contrary.69 Later, it was in August 2018 that the WA government introduced a bill titled ‘The Human Reproductive Technology and Surrogacy Legislation Amendment Bill 2018’ to amend the current law and do away with the ban on single men and same-sex male couples to access altruistic surrogacy.

2.3.6

New South Wales

In New South Wales, surrogacy arrangements are regulated by Surrogacy Act 2010. The Act prohibits commercial surrogacy arrangements while permitting altruistic surrogacy even for the same-sex couples. It further prohibits advertisements regarding the same and also provides for the status of children born through the process of surrogacy. The legislation provides that the intended parent may be a single person, or a member of a couple (being a person and their spouse or de facto partner and who must meet the criteria list in order to secure a parentage order,70 which order can be made only after 30 days from the birth of child extendable up to 6 months. Further, the birth has also be registered with the concerned authorities and the child must be living with the applicant(s).71

65

Id., s. 16&19. Id., s. 17. 67 Id., s. 6(3). 68 Id., s. 12; Also see s. 14. 69 Id., at s. 13(2). 70 Statutory Review of Surrogacy Act 2010(NSW), para 3.12. Available at https://www.parliament. nsw.gov.au/tp/files/73919/Review%20of%20Surrogacy%20Act%202010.pdf. 71 Id., at para 3.16. 66

2.3 Australia

2.3.7

53

Australian Capital Territory

In the Australian Capital Territory (ACT) it is the Parentage Act, 2004 which deals with surrogacy arrangements and permits only such an arrangement which is not commercial in nature,72 and wherein the surrogate is only paid the reasonable expenses. Under the Act, the intended parent(s) must be at least of 18 years of age and must live in the jurisdiction requiring one of them to be genetically related to the child born.73 Further, the Act requires that the application for a parentage order is to be made by either of intended parents after the child is born and is between the ages of 6 weeks and 6 months.74 However, no parentage order will be made by the Supreme Court under the Act unless both the birth parents consent to the transfer of parentage and unless the Court finds the transfer to be in the best interests of the child.75 It is also a criminal offence for a person who advertises for his need or willingness to be a surrogate under the ACT.76 However, in 2016, Australia’s House of Representatives set up a Standing Committee on Social Policy and Legal Affairs to inquire into the regulatory and legislative aspects on international and domestic surrogacy arrangements. It gave a total of ten recommendations after analyzing the law globally, a few of which may be understood as under. • The practice of commercial surrogacy should remain prohibited in Australia. • A model national law should be formulated by the Australian government in conjunction with the State Governments that facilitates altruistic surrogacy. The model law should be guided by four principles: (i) The best interests of the child should be protected including the right to know his origins and his/her safety and well-being. (ii) The surrogate mother should have the agency to make a choice out of her own free will whether to act as a surrogate or not. (iii) Sufficient regulatory provisions should be in place to prevent the exploitation of surrogate mothers. (iv) There is sufficient clarity regarding the parent–child relationship resulting from these arrangements. • The Australian government should develop a Web site to provide advice and information for Australians who are considering domestic altruistic surrogacy. • The Australian government should set up an interdepartmental taskforce to recommend ways to deal with the situations of those Australian who choose to go abroad for surrogacy within a 12-month timeframe.

72

Parentage Act 2004 (ACT), s 24(c). Id., s 24(d&e). 74 Id., s 25. 75 Id., s 26(1)(a)&(b). 76 Id., s 43(a). 73

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• The Australian government should introduce a legislation to amend the Migration Act 1958 in such a manner so that Australian residents seeking a passport for a young child to return to Australia are subject to screening by Department of Immigration and Border Protection officials to determine whether they have breached Australian or international surrogacy laws while outside Australia, and that, where the Department is satisfied that breaches have occurred, the Minister for Immigration is given the authority to make determinations in the best interests of the child, including in relation to the custody of the child.77 Thus, the laws in Australia are quite unambiguous regarding prohibition of commercial surrogacy. It is quite evident from the recent legislations in various States allowing altruistic surrogacy that governments want to regulate surrogacy arrangements owing to the increasing number of Australian citizens visiting other countries for availing services of surrogates to beget a child. This is a step in the right direction as the national law on surrogacy will bring in uniformity across the country and hence is desirable to remove loopholes that are present in the existing State laws. The report by the Standing Committee and its suggestions are a positive sign toward the fact that the legislature is open to enacting a national legislation even though the recommendations have not been brought to fruition.

2.4

United Kingdom

The legislations governing surrogacy arrangements in the UK are the Surrogacy Arrangements Act 1985 ‘The 1985 Act’ (based on the 1984 Warnock Report prohibiting the commercial surrogacy arrangements); The Adoption and Children Act 2002; The Human Fertilization and Embryology (Deceased Fathers) Act 2003; The Human Fertilization and Embryology Act 2008 [which amended the Human Fertilization and Embryology Act 1990]; and, the Human Fertilization and Embryology (Parental Order) Regulations 2010. However, at present the surrogacy arrangements in UK are subject to a framework which is a combination of Surrogacy Arrangements Act 1985 and the Human Fertilization and Embryology Act 2008 accompanied by the Human Fertilization and Embryology (Parental Order) Regulations 2010. As a result of applicability of Surrogacy Arrangements Act 1985, Commercial surrogacy, save for the provision of reasonable expenses (i.e., medical and hospital fees, a surrogate mother’s loss of earning) is prohibited. Under the Human Fertilization and Embryology Act 2008, the woman who carries the child is considered to be legal mother until the child is subsequently adopted or parenthood is transferred by a judicial order. Until the 1990 Act, the intended couple had to adopt their own child. However, in the subsequent Human Fertilization and Embryology Act 2008, the intended parents are given the status of 77

Surrogacy Matters, supra, note 61.

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55

legal parents subject to a parental order provided the child is genetically related to either of the intended parents.78 If the surrogate is married and conceives artificially, the legal father at birth is usually the surrogate’s husband and his name would come on the birth certificate of the child and this is irrespective of the biological relationships unless it can be shown that her husband did not consent to the surrogacy arrangement.79 This means that the intended father has no automatic claim to legal parenthood. The situation is the same for surrogate mothers who are in homosexual relationship. If a surrogate mother is in civil partnership with another woman at the time she conceives, her same-sex partner will be the child’s second parent, again excluding the status of both the intended parents. However, the intended father may be treated as a legal father at the birth if the surrogate mother is not married or in a civil partnership at the time she conceives. Thus, the legal mother of a child born through surrogacy is always the surrogate mother whether or not she is the genetic mother.80 This is irrespective of whether surrogacy takes place in the UK or elsewhere and does not depend on the place where the child is born. A parental order is required to be applied for by the intended parents in all surrogacy cases, regardless of whether the surrogate is married or unmarried. Once a parental order is made, a new birth certificate naming the intended parents and replacing the child’s original birth certificate is issued thereby securing the position of both the intended mother and father. However, the application must be made before the baby is six months old and if one is unable to apply and get a parental order, an adoption order may be applied for. The guiding principle which, however, remains is that no money, apart from reasonable expenses to be paid to the surrogate. At the same time, there is no mention of what constitute a ‘reasonable expenses.’ There may be a situation where the Act may not apply, i.e., when the commissioning couple are not married or are not genetically related to the child, and therefore, they do not meet the criteria for securing a parenting order. In such a scenario, the commissioning couple would need to adopt the surrogate child under the Adoption and Children Act 2002 on the consent given by the surrogate for adoption of her child.81 Section 95 of the Act also gains significance in such a situation as it prohibits any payment (other than the expected payment) made in consideration of the adoption of a child which is also applicable to adoption under surrogacy arrangements. Therefore, in practice the commercial nature of these international surrogacy arrangements has not been an impediment to British couple being able to become legal parents to the children born of surrogates overseas, despite the illegality of commercial arrangements domestically. However, in case non-UK couple considers conceiving with the surrogate from UK, they need to take care of the requirement that at least one of them is domiciled in a part of UK. If neither intended parent is domiciled in a part of UK the Court

78

Human Fertilization and Embryology Act 2008, s.54. Id., at s.35. 80 Id., s. 33. 81 The Adoption and Children Act 2002, s.20. 79

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cannot have the power to grant a parental order, which means it would be difficult for them to secure the status as the child’s parents and to take the child out of UK. It is relevant to note, that The Human Fertilization and Embryology Act 2008 came up with the concept of ‘supportive parenting’ instead of the ‘need of a child for a father’ thus granted the right to lesbians to avail the use of a surrogate for begetting a child.82 It also bestowed the right of legal parentage to persons in same-sex relationship or two live-in partners who were not within prohibited degrees of relationship with each other.83 However, while the amendment was for the benefit of same-sex and unmarried heterosexual couples thereby permitting them to seek a parental order, single persons still remain excluded and the status of transgender persons continued to remained ambiguous. An interesting development in UK related to commercial surrogacy took place when a landmark decision pertaining to surrogacy was passed in Illinois-British case of Re: L (A Minor).84 This case is one of the initial cases of UK which raised the concerns whether or not UK should accept international commercial surrogacy under British legal system. In this case, a commissioning couple from UK entered into a surrogacy agreement in Illinois (USA) which resulted in the birth of Baby L. Baby L. was issued US passport and the couple brought the surrogate child to UK after temporary leave was granted for his travel. The question before the British Court was to determine whether the commissioning couple to UK has parental rights over the surrogate child born to them in USA. The challenge before the Court was that the British couple entered into commercial surrogacy in USA and payment for surrogacy outside of ‘reasonable expenses’ is illegal in the UK. Hedley J held that the welfare of Baby L. born to British couple in USA as a result of international commercial surrogacy was paramount consideration and L’s welfare outweighed any public policy considerations regarding surrogacy arrangements. Therefore, the judge ordered a parental order in favor of British couple. The policy arguments described by Hedley J in Re S (parental order) can be summarized thus: (i) To ensure that commercial surrogacy agreements do not circumvent child care laws (ii) The Court should be careful not to be involved in any arrangement allowing any payment being done for effectively buying children overseas (iii) The Court should be astute to ensure that sums of money which may seem to be modest in nature are actually not of such a character that they may overbear the will of a surrogate

82

Human Fertilization and Embryology Act 2008, s. 14. Id., s.54. 84 Re: L(A Minor) [2010] EWHC 3146 (Fam). 83

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In fact, Hedley J went on to state ‘it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making.’85 This decision gained importance in view of the growing number of intended parents flying to India for commercial surrogacy to be well informed about the legal position in India and UK prior to entering into the commercial surrogacy arrangements. In another case which came before the the English High Court, namely A v P,86 once again the legal difficulties associated with surrogacy law in the UK came to the forefront. The English Court was tasked with the responsibility to determine the legal position of surrogate child who was commissioned through an Indian surrogate mother and while the proceedings for a parental order were still pending, the intended father died to liver cancer. The intended English couple had entered into an arrangement with a clinic in India and in fact, this was the first instance when an English Court was given this task. In the facts of this case, after the child was delivered in April 2010 was handed over to the married intended parents, who then applied for a parental order to secure their legal position as parents in the UK. While placing reliance upon Article 8 of United Nations Convention of the Rights of the Child which required the State to safeguard and protect the child’s right to an identity and a legal relationship with his parents, Mrs. Justice Theis granted the parental order and held that no order, other than a parental order, could have the same legal effect on the status of the child. It was further observed ‘the legal difficulties that overseas surrogacy agreements can create, the need to take advice from those skilled in this area as to the problems that may arise, how they can be addressed and the need to consider applying for a parental order to secure the legal status of the child.’ Single people, however, still remain barred from applying for a parental order u/ S 54 of The Human Fertilisation and Embryology Act 2008. Again in Re X (A Child) (Surrogacy: Time Limit)87 while focusing on the welfare of the child born the Court granted the parental order in respect of 2 years old child despite of lapse of 6-month time limit for applying for parental orders considering the delay in issuing such orders as a antithesis to the welfare and best interest of the child. However, in Re Z (No. 2) (2016),88 the President of the High Court Family Division, in the facts of the case, went ahead and made a formal declaration that the law discriminated against children born to single parents and that there was an incompatibility under the Human Rights Act. In this case, the applicant—a single father—was not granted the parental order who had begot a son through surrogacy in USA, thereby leaving the child as a ward of Court and the parental responsibility

85

Re S (Parental order) [2009] EWHC 3146 (Fam), [2010] 1 FLR 1156. A v P [2011] EWHC 1738 (Fam). 87 [2014] E.W.H.C. 3135 (Fam). 88 [2016] EWHC 1191 (Fam). 86

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was shouldered on US gestational surrogate. The outcome of this decision actually resulted in the amendment carried out in the year 2019 whereby single parents were allowed to apply for a parental order. Again in 2020, the English Courts were confronted with the issue of grant of a parental order in Re X[2020EWFC 39].89 In the said case 4 months prior to the birth of the surrogate child, the intended father who had donated gametes suddenly died. Having no other option, the intended mother filed an application seeking grant of parental order and the said application was filed by the intended mother jointly in the name of the intended father [who was no longer living], as she could not have applied in her own name owing to the conditions laid under Section 54 of the Human Fertilization and Embryology Act 2008. The Court, after considering all the facts and the peculiar situation with which it was faced with, while holding the welfare of the child to be of paramount importance, granted the parental order in the name of the intended parents. The primary reason which weighed with the Court was that non-grant of the parental order would mean depriving the child from legal recognition and relationship with his father and which amount to breach of the child’s right to enjoy the rights enshrined under Article 8 of the European Convention on Human Rights (ECHR) And in this manner, the Court read down Section 54 (1), (2) (a), (4) (a) of the HFEA 2008. Similarly, in the case of Re: A (Surrogacy s. 54 Criteria) [2020],90 a parental order was granted despite the commissioning parents having been separated at the time of application for grant of parental order and the separated father having minimal contact with the child. In fact, in this case, the Court held that the word ‘home’ must be accorded a wide and purposive interpretation and must not be held to mean that the applicants must be living together under one roof. The Court observed that an outdated legislation should not be allowed to prevent the welfare of a child who is placed at the center of any surrogacy arrangement. Recently in June 2020, the Law Commission of England and Wales and the Scottish Law Commission statutorily created independent bodies charged with keeping the law under review and recommending reforms whenever necessary published an exhaustive consultation paper on surrogacy laying out the case for surrogacy reforms and making tentative recommendations about how the revision should proceed. These Commissions aim to have a final report on their proposed revisions of the law and a Draft Bill for consideration by the Parliament in the year 2021. The law Commissions’ consultation paper firstly proposes creation of regulated surrogacy organizations that would supervise surrogacy contracting, recruit potential surrogates and offer counseling to all parties. Health checks and criminal background checks would be performed both on potential surrogates and on intended parents. The paper further provides as under:

89

Re X[2020]EWHC 39. Re: A (Surrogacy s. 54 Criteria) [2020] EWHC 1426 (Fam.).

90

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59

• All parties would receive independent legal counseling and all surrogacy contracts would be made uniform and an assessment would be done in advance of conception, of the likely welfare of the child to be born via surrogacy. • Surrogacy organizations would be permitted to advertise, though would not be profit‐making. Also, the intended parents would be the child’s legal parents from birth, with no need for an application for a parental order. • The surrogate would have a period perhaps sixty days during which an objection to the intended parents’ status as legal parents can be raised and, in which event, the legal parenthood would revert to the surrogate until the Court gets a chance to decide what would be in the child’s best interest. • The Commission also recommended the elimination of the requirement of genetic connection for surrogacy agreements within the UK, but to be maintained for surrogacy arrangements abroad to limit the possibility of trafficking in newborns. • Further on the issue of whether surrogates can be paid beyond their expenses, the Commissions have asked for a public input on this issue. It was, however, clarified that parties will still be able to make their own surrogacy arrangements privately, without going through regulated surrogacy organizations, but in such a scenario, they will lose the advantage of being legal parents of their child from birth and would also need to apply for a parental order under the current law. Same would also be the case for intended parents who use overseas surrogates and they too will have to go the parental order route. At the same time, the Commissions proposed that UK law may be modified to recognize, in some cases, the parentage of a child as determined by the law of the country where the child is born. For instance, if a UK couple was to use a commercial surrogate from California and California law recognizes the intended parents as legal parents from birth and puts their names on the child’s birth certificate, the UK law would accept the intended parents’ California legal status.91 Recent Developments It is pertinent to note, in view of the ongoing global pandemic wherein sudden restrictions on international travel prevented parents from getting births of their surrogate children, foreign Governments have had to make exceptions to travel bans by allowing expectant parents to reach to their newborns. The UK government has also created a new emergency UK passport application process to help British parents bring surrogacy babies home.92 Most recently, the HFEA has confirmed that it will update its guidance on exporting gametes and embryos to clarify that a fertility clinic can lawfully do so

91

Available at https://www.lawcom.gov.uk/project/surrogacy/. Gamble (2020).

92

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for the purposes of ‘commercial’ surrogacy under the existing General Direction rules. This is good news for intending parents wishing to send sperm or embryos overseas for surrogacy when they cannot travel themselves.93

2.5

Singapore

The status of surrogacy arrangements in Singapore is currently illegal. Section 4.11.2 of the Directives for Private Healthcare Institutions Providing Assisted Reproduction Services 2006 prohibits surrogacy, whether commercial or altruistic. Further, according Clause 5.48(b) of the Licensing Terms and Conditions on Assisted Reproduction Services, Assisted Reproductive Centers are prohibited to conduct surrogacy along with buying and selling embryos, oocytes and sperm; selective fetal reduction; Sperm sorting techniques in sex selection and placing a human embryo in the uterus of another species for the purposes of gestation.94 The view regarding surrogacy in Singapore can be gauged in the recent 2018 judgment of UKM v. Attorney General95 delivered by the High Court of Family division. It involved the case of a gay Singaporean doctor who went to USA to make an agreement with the surrogate so that he and his partner can have a child of their own. While the legality of his parenthood was recognized in the USA, the lower Court in Singapore rejected the application of the gay couple praying for adoption and citizenship for the new born child. The Court pointed out various socio-ethical and legal hurdles with respect to the adoption process in this case and highlighted the treatment of children as commodities in surrogacy which was frowned upon in the judgment. However, in appellate proceedings before the High Court, the Doctor’s appeal was allowed and he was permitted to adopt the child. It was, however, made clear that the decision rendered by it was based on the peculiar facts of the case and would not be considered as an endorsement of what the couple had set out to do. Also, the same High Court recently rejected the application to the Singaporean Doctor to have his gay partner awarded joint custody and control of the child.96 This gives us a brief idea as to how surrogacy is viewed by the society in general in Singapore and it shows that the chances of it being legalized in the near future are bleak at best.

93

Ibid. Ministry of Health, Singapore (2011). 95 [2018] SGHCF 18. 96 Vijayan (2020). 94

2.6 Ukraine

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61

Ukraine

Ukraine is an important and favorable destination for commercial surrogacy. Ukrainian surrogacy laws are the most favorable in the world. Surrogacy programs including commercial surrogacy and surrogacy in combination with egg/sperm donation are absolutely legal on the territory of Ukraine since 2002. The practice is officially controlled and managed by Article 123 of the Family Code of Ukraine (FCU) which is the founding Legislative Act in this sphere and which guarantees all citizens the unimpeded realization of their right to motherhood and fatherhood, and Order 24 of the Health Ministry of Ukraine on ‘Approval of Conditions and Order of Employment of Artificial Insemination and Implantation of Embryo(s), and Methods of Their Performance,’ dated February 4, 1997 (‘Order’) providing for the General procedure. In particular, Article 123 of the FCU defines the principles according to which the State Bodies for Registration of Civil Status Act decide who should be considered the child’s parents in case of artificial insemination and embryo implantation. Clause 2 of the said Article clearly states that in case of embryo implantation into the body of another woman, the couple who provided the genetic material for the embryo is considered to be the child’s parents. Thus, the child is considered to be legally a ‘belonging’ of the intended parents from the very moment of conception.97 The surrogate cannot keep the child after the birth. The practice is very popular and many Ukrainian women try to escape poverty by becoming surrogate mothers. Since Asian countries banned commercial surrogate motherhood in 2015, exposing the exploitation of the system by foreign couples and the abuse by intermediary agencies, the Ukrainian surrogacy industry has been thriving. Ukraine has quickly started to create agencies and clinics for assisted reproduction both legal and illegal. While most European countries prohibit commercial surrogacy, although laws differ across countries, the practice is legal and widespread in Ukraine. Today, the country is one of the few places left where surrogate motherhood is legal and cheap. Ukraine’s only competitors are Georgia and Kazakhstan. However, Ukraine has no rivals thanks to visa facilitation for Schengen countries.

2.7

Japan

Japan is one of the few countries where surrogacy still remains legally unregulated. There is no statue governing surrogacy in Japan and the industry is regulated exclusively by the guidelines promulgated by the Japan society of obstetrics and Gynecology banning surrogacy and the establishment of parentage and other family law matters are defined and governed by the terms of the Civil Code. The Japanese Civil Code, 1896, does not define a parent–child relationship resulting from 97

Family Code of Ukraine, art. 123.

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surrogacy. Under the code, a woman who gives birth to a child is the legal mother. If the woman is married, the husband is presumed to be the legal father of the child.98 Citizenship in Japan is governed by the provisions of the Nationality Law of 1950, which provides that a child shall be a Japanese citizen if either the father or the mother is a Japanese citizen at the time of birth of the child.99 Thus, the intended parents need to adopt the child to gain legal status of parents. Although surrogacy has not been legally prohibited, Medical Associations and Government Commissions have strongly condemned its practice. In response to a request made by the government to consider the issues relating to Assisted Reproductive Technology, especially surrogacy, the Science Council of Japan (SCJ) in the year 2006, formed an expert committee (Assisted Reproductive Technologies Review Committee). Vide its final report titled ‘Issues Related to the Assisted Reproductive Technologies Centered on Surrogate Pregnancy—Toward a Social Consensus’ which came to be published on 8.04.2008, the Committee recommended the prohibition of domestic surrogacy but suggested that interested couples may seek cross-border surrogacy and subsequent adoption in order to achieve their goal of becoming the child’s legal parents.100 In 2008, Japan’s ART Review Committee repeated the call to prohibit the practice of gestational surrogacy, and in 2014 the Liberal Democratic Party put forth a proposal calling for the prohibition of surrogacy except for in exceptional circumstances.101 Even so, there is no statutory regulation regarding surrogacy in Japan, people are free to avail the services of an overseas surrogate, and do so without realizing the potential consequences this may have for their child.

2.8

United States of America

Unlike many developed countries, the USA has not banned commercial surrogacy at a national level. The issue of surrogacy was largely publicized in the USA when the first dispute over custody between a surrogate and the intended parents was

Japan Civil Code, 1896, art. 772 (Presumption of Child in Wedlock) ‘(1) A child conceived by a wife during marriage shall be presumed to be a child of her husband. (2) A child born after 200 days from the formation of marriage or within 300 days of the day of the dissolution or rescission of marriage shall be presumed to have been conceived during marriage.’ Available https://www.imolin.org/doc/amlid/Japan/Japan_Civil_Code_Parts_4_and_5_1896.pdf. (Accessed 21 2012). 99 Nationality Law, 1950 art. 2(1). Available at www.moj.go.jp/ENGLISH/information/tnl-01.html . Accessed 21 July 21, 2012. 100 Science Council of Japan Assisted Reproductive Technologies Review Committee (2008). Available at http://www.scj.go.jp/ja/info/kohyo/pdf/kohyo-20-t56-1e.pdf. (Accessed 21 May 2015). 101 Yuri (2016). 98

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litigated and decided in New Jersey in the Matter of Baby M.102 Baby M case was defining moment in Modern surrogacy. In this case Marry Beth Whitehead signed a contract to bear a child for a New Jersey couple Elizabeth and William Stern in exchange for $10,000, plus fees and other expenses. The contract provided that Whitehead would be inseminated with the semen of Stern and would surrender any resulting child to Stern & and his wife. The baby was born, but the surrogate, Whitehead refused to relinquish the child to the commissioning parents and tried to keep the child. In 1987, a superior Court of New Jersey ruled that the surrogate contract was valid and that Stern should have sole custody with Whitehead’s parental rights to be terminated. With no parental and visitation rights, Whitehead appealed in NJ Supreme Court in 1988. However, the Supreme Court upheld the awarding of custody to Sterns in the child’s best interest, but held the contract was unenforceable and restored Whiteheads parental rights, leaving the terms of her visitation as a non-custodial parent to be established by Court. Although the contract explicitly provided that money paid was for Whiteheads services, the Supreme Court of New Jersey determined that the money was actually paid for the adoption and violated the State’s adoption status. According to the Court, ‘they would pay nothing in the event that the child died before the fourth month of pregnancy, and only $1,000 if the child was still born, even though “the services” had been fully rendered.’ The Court further observed that these contracts ‘Touted by those in the surrogacy business in the attractive alternatives to the usual route leading to an adoption really amounts to something other than a private placements adoption for many.’ Thus, applying the State’s baby selling law to surrogate contracts, the same were rendered as void. Ultimately, the Court decided that existing parentage law could not be used to deprive a genetically related birth mother of parental rights to her child without her consent. Thus, ‘Baby M’ decision brought surrogate motherhood to the forefront of American attention and spurred most US States to enact legislation on surrogacy.103 Five years hence, following Baby M, there was clear legislative response to surrogacy. Approximately 10 States passed prohibitive or restrictive legislation regarding surrogacy, most of which did not distinguish between traditional surrogacy and gestational surrogacy. While various State legislatures were passing this restrictive legislation, surrogacy further evolved with the coming of more reliable and successful IVF procedures. By the early 1990s, majority of surrogacy were gestational in nature. This eased the ethical dilemma for many, and surrogacy became more common and socially accepted. In 1993, the California Supreme Court decided Johnson v. Calvert,104 adopted the first phase of California’s intent analysis (stating that the person(s) who initiate a surrogate pregnancy with the intent of becoming the resulting child’s legal parents are entitled to become the child’s legal parents as against the rights of the gestational mother and the genetic contributors) and judicially ratified the enforceability of gestational

102

Matter of Baby M, case 537 A2d 1227 (NJ 1988). Steinbock (2002). 104 5 Cal.4th 84, 851 P.2d 776 (1993). 103

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surrogacy arrangements in California. In 1998, the California Courts extended the intent test in Buzzanca v. Buzzanca,105 and thereafter approximately 10 other States passed permissive or facilitative legislation regarding surrogacy. Today, the State laws concerning surrogacy varies widely and generally falls into one of three categories. The first category includes States whose legislatures have been proactive in passing specific legislation, whether permissive or prohibitory, that specifically applies to and/or governs surrogacy Examples are Texas and Utah, Illinois, Arkansas which have adopted the surrogacy provisions of the Uniform Parentage Act of 2000, as amended in 2002, and which require Court pre-approval of a written surrogacy agreement in order to establish the intended parent(s) legal parentage and notification to the Court following the child’s birth to amend the birth certificate; Virginia, in which a similar procedure is used under the Uniform Status of Children of Assisted Conception Act (1988), etc. The second category includes States that have no statutes that apply to surrogacy but whose appellate Courts have affirmatively decided contested and litigated surrogacy cases to create case law precedent that applied to and/or governs surrogacy. Examples are: Massachusetts, in which pre-birth establishment of parentage in surrogacy has been formally ratified by its Supreme Court in Culliton v. Beth Israel Deaconess Medical Center106 and Hodas v. Morin107; California, in which pre-birth orders are also permitted in surrogacy cases pursuant to Johnson v. Calvert and Buzzanca v. Buzzanca; and Ohio, in which intended parents may establish parentage postbirth pursuant to Belsito v. Clerk108 and JF v. DB.109 In States that fall into this last category, surrogacy rises or falls on the application of and options available under existing parentage, termination of parental rights and adoption law as it existed before surrogacy to create the parental relationships. Thus, the practice of surrogacy is dealt in different manner in various States in USA. There are some States which do not draw a distinction between commercial and altruistic surrogacy while legalizing or enforcing such agreements. They consider both types of surrogacy arrangements to be legal and contractually enforceable. One such State is Arkansas. The laws of Arkansas provide that when a surrogacy agreement is entered, then the intended parents are the legal parents of the surrogate child and the gestational carrier has no right over the child. It also does not provide any indication that the surrogate mother should not be paid for her role. Interpreting the law makes it clear that in Arkansas State, commercial surrogacy is legal. Arkansas thus has ‘some of the most liberal laws in the country with regard to surrogacy agreements.’ Similarly, in the State of Illinois commercial surrogacy is permitted. State legislature of Illinois passed the Gestational Surrogacy Act, 2004, which allows surrogate mother to receive compensation for her services.

105

61 Cal App 4th 1410 (1998). 435 Mass 285 (2001). 107 442 Mass 544 (2004). 108 644 NE 2d 760 (1994). 109 879 NE 2d 740 (2007). 106

2.8 United States of America

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In Massachusetts, both altruistic and commercial surrogacy are allowed. There is no specific statue in the State that legalizes surrogacy. However, Massachusetts Courts look favorably on commercial surrogacy agreements. In the case of Culliton v. Beth Israel Deaconess Medical Center,110 the Court upheld the legality and enforceability of paid surrogacy agreements and in fact, California has now become the Capital of commercial surrogacy in the USA and domestic Courts have also started upholding surrogacy agreements.111 In one of the most notable cases, Johnson v. Calvert112 the Supreme Court of California ruled that commercial surrogacy agreements were enforceable. Under the statutory law of California regulating surrogacy, the parenthood of the surrogate child is determined by the surrogacy agreements entered into by the parties. Therefore, the name of the intended parents though not genetically connected as the surrogate child shall be placed on the birth certificate of the child born through such agreements. The law of California is well settled with respect to surrogacy. The right of surrogate child is also well protected in advance. For example, a surrogacy facilitator directs the intended parents to place funds in either an independent, bonded escrow depository or a trust account maintained by an attorney. Some States require that an applicable Court approves surrogacy contracts in advance to ensure that all contingencies are considered prior to the finalization of a surrogacy arrangement. The surrogacy statute in California and Illinois does not require the intended parents to be married. This is another major reason why intended parent chose California as the most favored destination for surrogacy in the west. Second category includes those States that allow only altruistic surrogacy for, e.g., in Nevada, it is unlawful to pay or offer to pay the surrogate except for the medical and necessary living expenses related to the birth of the child as specified in the contract. Likewise, in Florida, a surrogate mother can only receive the reasonable living legal, medical, psychology and psychiatrist expenses of the gestational surrogate that are directly related to prenatal, intra-partum, and post-partum. States such as New Mexico, Utah and Washington prohibit women from acting as a surrogate and consider it as a criminal misdemeanor on the part of any person entering into such commercial surrogacy arrangement. The third category States completely ban surrogacy contracts, whether commercial or altruistic, e.g., New York, Delaware, Indiana, Louisiana, Michigan, Nebraska, North Dakota, Arizona, District of Columbia and Washington DC. In all these States surrogacy contract whether paid or unpaid is illegal and against public policy. This wide range of laws has already led to what one can call a, ‘jurisdictional chaos.’ In USA, commercial surrogacy is prohibited in many States and in fact, the issue of surrogacy was largely publicized in the USA when the first dispute over custody between a surrogate and the intended parents was litigated and decided in New Jersey in the matter of Baby M, Baby M case was defining moment in Modern

110

CC v. A.B., 406 Mass. 679, 686 (1990). Finkelstein et al. (2016). 112 5 Cal. 4th 84, 19 Cal. Rptr. 2d 494, 851 P.2d 776 (1993). 111

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surrogacy which brought surrogate motherhood to the forefront of American attention and spurred most US States to enact legislation on surrogacy and in fact, an identical position was taken in the case of Surrogate Parenting Assoc., Inc. v. Commonwealth.113 However, later on the Supreme Court of New Jersey unanimously reversed this decision. In reversing Judge Sokow’s ruling, the New Jersey Supreme did not technically rule on all surrogacy arrangements, but, rather, found the payment of money to a surrogate mother to be illegal, perhaps criminal, and potentially degrading women. The judges added that there was no offense to the existing laws where a woman voluntarily and without payment agreed to act as a ‘surrogate’ mother, provided that she is not subject to a binding agreement to surrender her child. In fact, as a reaction to the ‘Baby M’ case, several States, including New Jersey, New York, Michigan and Washington, DC, had banned paid surrogacy and declared surrogacy agreements to be invalid. However, in April, 2019, Washington, DC, overturned its surrogacy ban, in effect since 1993 and, in December 2019, the New York Task Force on Life and the Law issued a report recommending that New York’s ban be lifted and consequently New York legalized commercial surrogacy in the year 2020 by passing the Child Parent Security Act along with Surrogates Bill of Rights which came into force wef. February 15, 2021. The Act allows for compensated surrogacy arrangements and provides a Pre-Birth Order which confirms the legal parentage of the intended parents at the moment of the child’s birth. Also, the Child-Parent Security Act only protects gestational surrogacy arrangements and therefore, traditional surrogacy is legal only in altruistic cases where a surrogate does not receive any consideration. Because the traditional surrogate would be the genetic mother of the child, she is the child’s legal mother under New York law and must consent to the child’s adoption by an intended parent who is not genetically related to the child.114 The Act mandates all parties involved to obtain representation of counsel in order to ensure that they are properly informed at the outset of the agreement. The Act also does not lay down that the intended parents must be married meaning thereby that they can be unmarried as well single and in this manner, providing some relief to LGBT families. The Act, in its bid to protect the rights of the surrogate mother and child, provides for maintaining an escrow account with an independent agent where, prior to the beginning of the medical procedures, the compensation and additional expenses for the surrogate shall be parked. There are a host of other rights which have been provided under the Act to the surrogate such as conferring her the sole right to opt for her own healthcare decisions or that of her fetus or embryo; the right to terminate the pregnancy or reduce the number of fetuses; right to access health insurance policy which provides coverage to major medical treatments and hospitalization expenses and the right to have/consult an independent legal counsel, etc. The Act also mandates the designation of a guardian by the intended parents for

113

704 S.W.2d 209, 214 (Ky. 1986). The Child-Parent Security Act: Gestational Surrogacy Agreements, Acknowledgment of Parentage and Orders of Parentage (2021).

114

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the purposes of ensuring welfare of the child and the name of the guardian shall also be provided in the will signed by the intended parents and which will has to be executed prior to the implantation of the embryo in the surrogate. The will would also specify the name of the executor who shall perform the obligations of the intended parents under the Surrogacy agreement.115

2.9

New Zealand

Legislations in New Zealand provide for altruistic surrogacy involving its citizens or residents opting for cross-border surrogacy. The Human Assisted Reproductive Technology Act 2004 deals with legality of surrogacy provisions. In addition, the Status of Children Act (SOCA) 1969 governs legal parenthood and equally treats children born in New Zealand and those born elsewhere.116 Though the term ‘surrogacy’ under this Act does not find mention nevertheless it does have a profound impact on the legal parenthood of children born from surrogacy arrangements. Vide this Act, the surrogate mother is considered to be the legal mother of any child born, regardless of whether the child is conceived biologically or through artificial insemination, and bears all rights and liabilities of motherhood until the child is adopted.117 It is through adoption under the Adoption Act, 1955 which regularizes the parental relation between the intending parents and the surrogate child. Through the grant of an ‘Adoption Order’ under the Adoption Act, full legal parenthood is granted to the intending parents. Guardianship or parenting orders are two other options which exist under the Act to create a legal parental relationship and both these options are available and are governed by the Care of Children Act (COCA) 2004.118 However, unlike in the case of adoption, full legal parental relationship between the surrogate (and her partner) and the surrogate child is not extinguished with a guardianship or parenting order.119 It is also important to mention that the New Zealand Family Court, while considering cases of cross-border surrogacy involving New Zealand citizens or residents, has in some instances, considered the potential relevance and application of the Adoption (Inter-Country) Act 1997. In 2016, the Human Rights Commission called for an urgent reform of New Zealand adoption laws, following a Human Rights Review Tribunal finding that the Adoption Act and the Adult Adoption Information Act

115 Parentage Proceedings Under the Child Parent Security Act. Available at https://www.nycourts. gov/LegacyPDFS/forms/familycourt/pdfs/Child-Parent-SecurityAct-Summary.pdf. 116 Status of Children Act, 1969 ss. 3(4) & 5(3). Available at http://www.legislation.govt.nz/. Accessed 28 July 2018. 117 Id., s. 5(1) and s.17(2). 118 Care of Children Act, 2004s. 4. 119 New Zealand Law Commission (2005).

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1985 contradict New Zealand’s human rights legislation by discriminating against people based on sex, age, marital status and disability.120 In July 2020, the Minister responsible for the Commission referred a review of surrogacy laws to the Commission as a new item to commence in 2020/2021 directing the Commission to focus on surrogacy arrangements and legal parenthood while examining both domestic surrogacy and international surrogacy in the Aotearoa New Zealand. The Commission is in the process of determining the scope and timeframe of the project.121

2.10

Russia

A relatively neutral approach is adopted by Russia toward surrogacy and it is only the gestational surrogacy which is allowed in Russia. The Family Code 1995, contains two articles one of which concerns the order of registration of legal parents of a child born using a surrogate (Article 51, paragraph 4(2) and the other relates with the issues of contesting paternity and maternity with regard to a child conceived through IVF and born to a surrogate (Article 52, paragraph 3(2). The Russian Family Code provides that the intended parents are registered as the child’s legal parents, provided the surrogate mother has given her consent to this. If a surrogate mother does not use her right to keep a child and the intended parents have been registered as the legal parents, the child’s status and accordingly the parents’ rights and duties are precisely the same as in the case of a child conceived in a natural way.122 There is also a provision on surrogate motherhood in the Federal Law on the Acts of Registration of Civil Status 1997, which having followed the legal rule contained in the Family Code, merely clarifies some details concerning registration of the birth of a child born by a surrogate mother (Article 16 (5)). The registration procedure is also the same as in the case of ordinary registration of a child’s birth, with just one exception, i.e., the intended parent shall present, apart from other documents which are required for birth registration, a medical clinic’s ‘official note’ (medical statement) confirming they have received the consent of the surrogate for their registration as legal parents. In 2011, A new Law on Citizen’s Health came to be adopted in November 2011 thereby adding new rules on surrogate motherhood along with introducing a clear prohibition of so-called partial or traditional surrogacy, by stating stated that ‘a surrogate mother shall not be a oocytes donor.’123 The law permitted married couples, unmarried 120

Human Rights Commission calls for urgent reform of New Zealand adoption laws (2016). Available at https://www.hrc.co.nz/news/human-rights-commission-calls-urgent-reform-newzealand-adoption-laws/ Accessed 21 March, 2019. 121 https://www.lawcom.govt.nz/our-projects/surrogacy-law-review. Accessed 30 July, 2020. 122 The Russian Family Code, 1995, art. 51, para 4(2) & art. 52, para 3(2). Available at http://www. jafbase.fr/docEstEurope/RussianFamilyCode1995.pdf. Accessed 30 July, 2019. 123 Olga (2013).

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Russia

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couples, including foreign citizens, the right to participate in gestational surrogacy arrangements in the country. In fact, while surrogacy in Russia for a single man/ single female is possible, however the literal interpretation of the act reveals that same-sex couples are not stipulated as potential intended parents as only gestational surrogacy arrangements are permitted.124 A gestational surrogate does not use her eggs to get pregnant, but uses the eggs of the intended mother or donor eggs. It is required that the intended mother has a medical cause that prevents her from getting pregnant or bearing a full-term pregnancy.125 Common causes include not having a uterus, uterine anomalies, risk of somatic symptom disorders, repeated IVF failure, etc., and also single women must use their own egg cells for the creation of the embryo that will be placed into the gestational surrogate’s womb.

2.11

Thailand

In Thailand, unregulated commercial surrogacy was practiced until Aug 2014 and it was a popular destination for couples seeking surrogate mothers. However, after the Baby Gammy incident in 2014, when a West Australian couple Wendy and David Farnell abandoned a twin boy—Baby Gammy—with Thai surrogate after they discovered that the child was suffering from ‘Down Syndrome’ and returned to Western Australia with his healthy twin sister. With this case widely discussed in the international media, the Thai Authorities started crackdown operations on surrogacy industry. Another case was exposed where a Japanese single man had fathered about 16 children through surrogacy in Thailand. With these cases in hand, Thailand with effect from July 30, 2015, banned foreign nationals traveling to Thailand, to have commercial surrogacy contract arrangements, under the Protection of Children Born from Assisted Reproductive Technologies Act 2015. The underlying purpose behind the Act is to protect children born as a result of ART as well as to suppress human trafficking.126 Section 3 of the Act defines ART as ‘any medical scientific procedure that removes eggs or sperm from a human body for the purpose of unnatural pregnancy, including artificial insemination’ and surrogacy is defined as ‘pregnancy by ART.’ The Act contains several provisions regulating surrogacy with the most important provision being Section 23 which out-rightly prohibits commercial surrogacy in Thailand. Further, vide Section 21(1) Only heterosexual married couples of at least 3 years as Thailand residents are permitted to avail of the services of a surrogate.127 Further, same-sex couples cannot seek surrogacy since Thailand does not recognize same-sex marriage. The surrogate according to Section 21(2) of the Act must be a blood relative of the

124

European Parliament, Directorate General for Internal Policies (2013). Ibid. 126 Caamano (2016). 127 Ibid. 125

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intended couple but must not be either parents or descendent. Also, the surrogate must have had a pregnancy prior to the surrogacy. There is a punishment of up to 10 years or a fine of up to 200,000 Baht if anyone is found to be involved in surrogacy for profit.128 Thus, it can be clearly seen that Thailand has moved to curb the commercial surrogacy industry which had made Thailand a hub of international surrogacy tourism where foreign nationals could rent a womb and commission surrogacy leading to exploitation of the poor and vulnerable in the society.

2.12

Nepal

With the closure of commercial arrangements in Thailand and a ban having been imposed in India on seeking surrogacy by foreigner singles and gay couples vide the new visa guidelines issued by the Indian Ministry of Home Affairs on July 9, 2012 and closure of commercial arrangements in Thailand Nepal became a new entrant to International Surrogacy taking advantage of near at-hand Indian expertise and availability of surrogates and donors. Gays from Israel, UK and Australia started embarking their journey to seek parenthood in Nepal in order to fulfill their dream of becoming ‘fathers.’ However, irony about surrogacy in Nepal was that while it did not allow surrogacy for its own citizens, meaning thereby that neither the surrogate mother nor the intending parents could be from Nepal, however, intending parents from outside Nepal could choose Nepal as a destination for commissioning surrogacy. When a devastating earthquake hit Nepal in April 2015 killing about 9000 people, the Israeli government evacuated newborn children born through surrogacy at Nepal as it was then discovered, from the surrogates who got stuck in Nepal during the earthquake, few surrogates were actually Nepali woman who had represented themselves to be Indian nationals while opting to be surrogate mothers for foreign couples who hailed from Israel and other countries.129 In fact, this was one of the most important contentions before the Supreme Court of Nepal while pleading for a complete surrogacy ban.130 On August 25, 2015, the Supreme Court of Nepal issued an interim direction thereby immediately halting commercial surrogacy services in Nepal till the time it finally rules on the legality of the practice. While the Cabinet also thereafter decided on September 19, 2015 to ban surrogacy, however, vide its final verdict, the Nepali Supreme Court announced on December 12, 2016, holding that surrogacy is legal for infertile Nepali married couples, but illegal for single men or women, transgender couples and foreign nationals. This brought an emptiness for single and same-sex couples wishing to opt

128

Ibid. Aravamundan (2015). Burden of Surrogacy. The Hindu, May 30, 2015. Available at https:// www.thehindu.com/features/magazine/burden-of-surrogacy/article7264366.ece. Accessed 15 June 2019. 130 Press Trust of India (2015). 129

2.12

Nepal

71

for surrogacy in the South Asia region. The Court came up with an option of altruistic surrogacy, completely banning commercial surrogacy in Nepal declaring that Married Nepali couples with proven medical records of infertility and inability to have children can now practice altruistic surrogacy in the country once laws governing it are formulated while the surrogate mothers should be married with at least one child and take their husband’s consent for it. It was also directed that a surrogate mother is not allowed to deliver babies more than once. The government is, however, yet to take any action on the Supreme Court directive issued two years ago ordering it to enact a new law to govern altruistic surrogacy.131

2.13

Other Countries

Other countries such as Iceland, France, Italy, Germany, Pakistan, Serbia, China ban surrogacy arrangements altogether, be it commercial or altruistic by declaring them illegal or unlawful.

2.14

Conclusion

It cannot be denied that the phenomenon of cross-border surrogacy cases has been on the rise since the late twentieth century. However, it can be witnessed from the discussions supra that there exists a lack of uniformity in surrogacy laws across various jurisdictions. Law differs according to the social and moral fabric of any country. In countries with strong federal structures, every State/province has its own law on surrogacy, be it commercial or altruistic. While many countries like Israel allows only heterosexual, married and unmarried couples to avail the services of a surrogate, other countries such as the UK, some States in the USA, Canada allow singles, LGBTQ persons along with married and unmarried heterosexual couples to do so. Japan, on the other hand, does not allow surrogacy within its own borders but it does allows its citizens to avail cross-border surrogacy services for begetting a child. This lack of uniformity in surrogacy laws stems from the fact that there is no international agreement, convention or a standard regarding surrogacy law at present and which has led to a lot of confusion and in turn, it has given rise to a lot of legal ramifications for people who are unable to conceive a biological child of their own and seek surrogacy as a viable means to do so. While it is agreed that adoption is available as an option for such people who desire to start a family but the lure of having a child who is biologically related, cannot be overstated. Thus, there is an imminent need that an international agreement or a standard is brought in place with which the signatory countries can align their surrogacy laws for the benefit of everybody.

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Supreme Court of Nepal, Case 072-WO-0119 (July 14, 2016) (Nepal).

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References Burpee, A. L. (2009). Momma drama: A study of how Canada’s national regulation of surrogacy compares to Australia’s independent state regulation of surrogacy. Georgia Journal of International and Comparative Law, 37, 305, 328. Caamano, J. M. (2016). International, commercial, gestational surrogacy through the eyes of children born to surrogates in Thailand: A cry for legal attention. Boston University Law Review, 96, 571. European Parliament, Directorate General for Internal Policies. (2013). A comparative study on the regime of surrogacy in EU member states. Available at https://www.europarl.europa.eu/ RegData/etudes/STUD/2013/474403/IPOL-JURI_ET(2013)474403_EN.pdf. Accessed July 30, 2019. Finkelstein, A., et al. (2016). Surrogacy law and policy in the U.S.: A National conversation informed by global lawmaking. Columbia Law School Sexuality and Gender Law Clinic, 8, 1–90. Available at https://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/ files/columbia_sexuality_and_gender_law_clinic_-_surrogacy_law_and_policy_report_-_june_ 2016.pdf. Accessed March 12, 2018. Gamble, N. (2020). International surrogacy: New HFEA guidance and the dangers of oversimplifying a complex picture. Available at www.bionews.org.uk/page_153781. Accessed February 15, 2021. Gita, A. (2015). Burden of surrogacy. The Hindu. May 30, 2015. Available at https://www. thehindu.com/features/magazine/burden-of-surrogacy/article7264366.ece. Accessed February 25, 2016. Hand, J. (2006). Surrogacy in Israel: A model of comprehensive regulation of new technologies. Santa Clara Journal of International Law, 2, 111, 114. Health Canada. (2019). Guidance document reimbursement related to assisted human reproduction regulations. Available at https://www.canada.ca/content/dam/hc-sc/documents/programs/ consultation-reimbursement-assisted-human-reproduction/r-regulations-guidance-documenteng.pdf. Accessed January 24, 2020. Human Rights Commission calls for urgent reform of New Zealand adoption laws (2016). Available at https://www.hrc.co.nz/news/human-rights-commission-calls-urgent-reform-newzealand-adoption-laws/. Accessed March 21, 2019. Kaur, R. (2013). Recognition of surrogacy in various countries around the globe. Birthing by Surrogacy in Law, 58. Khazova, K., “Russia” in Katarina Trimmings & Beaumont, P. (Eds.), International surrogacy arrangements: Legal regulation at international level (Vol. 313, 1 ed.). Hart Publishing. Llewellyn, S. (2015). Surrogacy law reform in South Australia: Are surrogacy registers a new way forward. University of Tasmania Law Review, 34, 130. Ministry of Health, Singapore. (2011). Licencing terms and conditions on assisted reproduction services. Available at https://www.moh.gov.sg/licensing-and-regulation/regulations-guidelinesand-circulars/details/licensing-terms-and-conditions-on-assisted-reproduction-services. Accessed October 10, 2014. New Zealand Law Commission. (2005). New issues in legal parenthood (p. 19). Report 88. Wellington, New Zealand Law Commission. Press Trust of India. (2015).The Nepal’s top court orders suspension of surrogacy services. Daily News and Analysis, August 26, 2015. Available at https://www.dnaindia.com/world/reportnepal-s-top-court-orders-suspension-of-surrogacy-services-2118885. Accessed February 14, 2018. Standing Comm. Of Attorney-Generals Australian Health Ministers’ Conference Cmty. & Disability Serv. Ministers’ Conference. (2009). Joint working group, a proposal for a national model to harmonise regulation of surrogacy (pp. 24–32).

References

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Science Council of Japan Assisted Reproductive Technologies Review Committee. (2008). Issues related to the assisted reproductive technologies centered on surrogate pregnancy-toward a social consensus. Available at http://www.scj.go.jp/ja/info/kohyo/pdf/kohyo-20-t56-1e.pdf. Accessed November 9, 2014. Steinbock, B. (2002). Surrogate motherhood as prenatal adoption: Legal and ethical issues in human reproduction. Ashgate Publishers Surrogacy Matters: Inquiry Into The Regulatory And Legislative Aspects Of International And Domestic Surrogacy Arrangements. (2016). The parliament of the commonwealth of Australia. Stuhmcke, A. (2004). Looking backwards, looking forwards: Judicial and legislative trends in the regulation of surrogate motherhood in the UK and Australia, 18 AuST. Australian Journal of Family Law, 13, 40. Teman, E. (2016). Surrogacy in Israel-state controlled surrogacy as a mechanism of state control. In Scott Sills, E. (Ed.), Handbook of gestational surrogacy. Cambridge University Press. The Child-Parent Security Act: Gestational Surrogacy Agreements, Acknowledgment of Parentage and Orders of Parentage. (2021). Available at https://health.ny.gov/vital_records/child_parent_ security_act/. Accessed January 30, 2021. The Report of the Public Professional Commission in the Matter of In Vitro Fertilisation. Israel Ministry of Justice, Jerusalem (1994, July). Vijayan, K. C. (2020) Court rejects bid by gay man to make partner guardian of his two surrogate children. Available at https://www.straitstimes.com/singapore/court-rejects-bid-by-gay-manto-make-partner-guardian-of-his-two-surrogate-children. Accessed June 1, 2021. Yuri, H. (2016). Gestational Surrogacy in Japan. In Scott Sills, E. (Ed.), Handbook of gestational surrogacy: International clinical practice and policy issues (Vo. 174, p. 180). Cambridge University Press. Yuval Davis, N. (1989). National reproduction and the demographic race in Israel. In Yuval Davis, N., & Anthias, F. (Eds.), Woman-nation-state (Vol. 92, pp. 109.). The Macmillan Press, London.

Cases Baby M 537A. 2d 1227 (N.J.1988). Belsito v. Clerk 644 NE 2d 760 (1994). Buzzanca v. Buzzanca 61 Cal App 4th 1410, 72 Cal Rptr 2d 280. Culliton v. Beth Israel Deaconess Medical Center 435 Mass 285 (2001). Hodas v. Morin 442 Mass 544 (2004). JF v. D 879 NE 2d 740 (2007). Itai Arad-Pinkas et al. v. The Authorization Committee for Agreements for Carrying Fetuses et al. (27.2.20). HCJ 781/15. Johnson v. Calvert5 Cal.4th 84, 851 P.2d 776 (1993). Re: A (Surrogacy s. 54 Criteria) [2020] EWHC 1426 (Fam.) Re: L(A Minor) [2010] EWHC 3146 (Fam). Re X (A Child) (Surrogacy: Time Limit) [2014] E.W.H.C. 3135 (Fam). Re X[2020]EWHC 39 Re Z (No. 2) (2016) EWHC 1191 (Fam). Surrogate Parenting Assoc., Inc. v. Commonwealth 704 S.W.2d 209, 214 (Ky. 1986). UKM v. Attorney-General [2018] SGHCF 18.

Chapter 3

Surrogacy in India

3.1

Reproductive Tourism in India

Surrogacy, when compared with all other ARTs available, has converted India into a steadily growing fertility market taking it on the world map of reproductive tourism. India has, in fact, become a popular and a much sought-after destination when we speak of international surrogacy arrangements. It is estimated that the practice has doubled in the last few years.1 People from the USA, UK, Israel, and Australia came in large proportions to India to enter into surrogacy arrangements. Australians are some of the biggest clients for gestational surrogacy in India.2 While infertile couples may get such help in their own country, some nevertheless still choose to travel to an outside nation such as India due to lower costs, less restrictive laws, lack of regulation of ART clinics, abundant choice of donors and easy availability of surrogate mothers. This, in turn, led to a multifold growth of the Indian reproductive tourism industry which is estimated at Rs. 25,000 (US Dollars 5000 million) crores with the Law Commission describing it as ‘a gold pot’ promoted by over 200,000 IVF clinics with Web sites offering wombs, sperms and eggs. The boom began in January 2004 when a grandmother delivered her daughter’s twins. Apart from the lack of regulations, another important factor which has contributed to the growth of transnational commercial surrogacy in India is the advertising and the marketing done by fertility clinics over the Internet. Fertility Web sites differ significantly in their style and content, but most of them have home pages with vibrant colors, large pictures of happy babies and doctors and

1

Centre for Social Research Surrogate Report (2010) Motherhood-Ethical or Commercial. Available at http://www.womenleadership.in/Csr/SurrogacyReport.pdf. Accessed on September 13, 2013. 2 Editorial (2015), Outsourcing Motherhood: India’s Reproductive Dysopia, Sunday Hindustan Times, July 26, 2015, Available at https://www.hindustantimes.com/india/outsourcing-motherhood-india-sreproductive-dystopia/story-iCG1IuJJYMV994Gus2LZuK.html. Accessed on October 22, 2018. © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 H. Kaur, Laws and Policies on Surrogacy, https://doi.org/10.1007/978-981-16-4349-1_3

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information about the clinic.3 Intended parents from any corner of the globe can collect information about the facilities offered by the clinics in India just by a mouse click with these Web sites being used as marketing tools and offering surrogacy services in packages. To a certain extent, glamor in India has also played its role in promoting surrogacy. An Indian movie called ‘Life Express’ dealing with the complex issue of the surrogacy was released in August 2010. Another documentary film titled, ‘Made In India’ was premiered in USA in 2010. This film depicted the woes of an infertile American couple and how they finally sought a surrogate to complete their family. This film was about the human experience behind the phenomenon of ‘outsourcing’ surrogate mother in India. Then, in 2012 came another movie called ‘Vicky Donor’ which dealt with the concept of sperm donation, infertility and artificial insemination intended to shed light on a serious issue still considered a ‘taboo’ in Indian society. It received an overwhelmingly positive review from various top critics of India. Besides the reel world, in real world too, many celebrities have opted for the surrogacy procedure to have their own kids and have pushed surrogacy into the main stream. For example, Bollywood’s choreographer and director Farah Khan got married to Shirish Kunder decided to opt for IVF and then gave birth to triplets. In February, 2008, Aamir Khan, a well-known Bollywood star who had two children from his first marriage, opted for the surrogacy procedure with his second wife, Kiran Rao. The couple was blessed with a son in December 2011. Another Bollywood star Shahrukh Khan and his wife Gauri Khan opted for surrogacy to have their third child in May 2013. Shilpa Shetty Kundra, another Bollywood celebrity, and her husband Raj Kundra welcomed a baby girl into their family through surrogacy. With this, the couple joins other celebrities who have taken the surrogacy route to add on to their families. In fact, the practice seems to have been much more prevalent in international world of glamor as compared to the Indian industry. For example, actor Dennis Quaid and wife Kimberly became parents to twins via gestational surrogate in November 2007. ‘Sex and the City’ star Sarah Jessica Parker and Broadway staple Matthew Broderick decided to go for surrogacy to have their twin girls in June 2009. Singer Ricky Martin also took up the challenge of being a single parent by opting to have children through surrogacy and, with the help of a gestational surrogate and an unidentified egg donor, welcomed twins in year 2008. Notwithstanding the fact that cross-border surrogacy was at its peak in India, commercial surrogacy still remains unregulated. In fact, it is being considered legitimate in the absence of any Indian Law expressly prohibiting it. Currently, the non-binding National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, promulgated by the ministry of Health and Family Welfare, the Government of India, and the Indian Council of Medical Research and the

3

Hawkins (2013).

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National Academy of Medical Sciences in 2005 govern surrogacy in India. The phenomenal rise in the practice of surrogacy in India has been primarily due to it being a cheaper option when compared with other nations and also because of the complications involved in adoption procedures which involve a host of lengthy legal processes. Adoption continues to remain an undesirable option as it is also a visible admission of infertility, and the links between an adopted child and the social parents become public unlike surrogacy which is practiced in silence.4

3.2

Regulation and Enforceability

The practice of surrogacy, its enforceability and regulation in India can be examined by referring to the following.

3.2.1

Constitutional Protection

Every citizen is guaranteed the right to life and personal liberty vide Article 21 of the Indian Constitution and which has been held to be the cornerstone and heart of all fundamental rights. Under this article, many rights have found shelter and nourishment ranging from right to live with dignity,5 right to livelihood,6 right to privacy, etc.7 In fact, in B. K. Parthasarathi’s8 case, the High Court of Andhra Pradesh following the judgments of the US Supreme Court in the case of Roe v. Wade9 whereby it was held ‘that a citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters’ and another case of Skinner v. Oklahoma10 which characterized ‘the right to reproduce as one of the basic civil rights of man,’ recognized the right to procreation to be implicit in the right to privacy and held ‘the personal decision of the individual about the birth and babies called ‘the right of reproductive autonomy’ is a facet of a ‘right of privacy’.’ In 2017, the nine-judge bench Supreme Court of India in the K.S. Puttaswamy v. Union of India case11 held

4

Aditya (2003). Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746. 6 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. 7 R. Rajagopal v. State of Tamil Nadu AIR 1995 SC 264. 8 B.K. Parthasarathi v. State of Andhra Pradesh, AIR 2000 AP 156. 9 410 U.S. 113. 10 316 U.S. 535 (1941). 11 (2017) 10 SCC 1. 5

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that the right to procreate forms part of the right to privacy enshrined under right to life and liberty under Article 21 of the Constitution. The Court in the Puttaswamy judgment in its conclusion held that, dignity which forms a part of privacy protects the right to marriage, procreation and sexual orientation of a person. Thus, surrogacy, though an assisted one, is a method of procreation which stands sheltered under the umbrella provision of Article 21 of the Constitution of India conferring the right to reproductive privacy to the parties of surrogacy agreements.

3.2.2

The Indian Contract Act, 1872

In India, for the practice of surrogacy, an agreement is entered between the parties in exercise of their free will which generally is an expression of the proposal and acceptance between the parties and mentions about the payment of monetary consideration to the surrogate mother for her assistance in having a biological offspring, therefore, meets the requirement of consideration, lawful object and free consent of the parties as provided under Section 10 of the Indian Contract Act 1872 which further provides that the agreement must not have been expressly declared to be void.12 Therefore, one may infer that surrogacy agreements are treated as commercial contracts in India, and the Indian Contract Act 1872 governs their enforceability. Therefore, all disputes arising from surrogacy agreements could be admissible in Civil Court as per Section 9 of the Civil Procedure Code, 1908.

3.3

The Indian Council of Medical Research, National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (2005)

In early 2000s, the Indian Council of Medical Research (ICMR) promulgated the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India which were revised in 2005.13 These guidelines by ICMR can be regarded as the first document or the Magna Carta of Indian Law on ART. The guidelines were drafted as a result of expert discussions and debates of over 4000 participants, including doctors, scientists, bureaucrats, legal experts, infertile couples and the

12

Munjal Shankar (2014). ICMR (2005) Indian Council of Medical Research National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005 (hereinafter referred to as ICMR Guidelines). Available at https://main.icmr.nic.in/sites/default/files/art/ART_Pdf.pdf. Accessed on June 8, 2014.

13

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general public, at a time when an estimated 150,000 foreigners were visiting India for medical treatment.14 These guidelines are important because they identify the areas in ART which needed regulation. The guidelines prohibit traditional surrogacy and provide for surrogacy arrangements in the following manner stating that ‘an oocyte donor cannot be a surrogate for the couple to whom the oocyte is being donated’15 and ‘not more than three embryos should be placed in a surrogate mother during any one treatment cycle.’16 In fact, the manner in which ICMR guidelines tried to regulate the surrogacy in India can be seen as under (i) Who can be a Surrogate and who can opt for Surrogacy? The guidelines provide for a detailed eligibility criterion for a surrogate mother. As per the same, a surrogate should be under forty-five years of age, can be a relative, a person known or unknown to the infertile couple and should also satisfy all treatable criteria to go through a successful full-term pregnancy which needs to be ensured and recorded by the ART clinic. However, in the case of a relative acting as a surrogate mother, he/she should belong to the same generation of which the woman desiring the surrogate is.17 The eligibility requirement for the intended parents as provided under the guidelines is physical or medical impossibility / undesirability to carry a baby to term.18 (ii) Legal Parenthood and Nationality According to the guidelines, the child born to the intended couple as a result of an ART procedure is presumed to be the legitimate child of intending couple, born from the wedlock, with consent of both spouses and have all the legal rights which a child born from sexual intercourse between a couple has, like the right to parentage, support, inheritance, etc.19 The guidelines provide that the birth certificate issued with respect to the child born through surrogacy will bear the names of the genetic parents.20 Thus, the surrogate mother cannot be regarded as the legal mother of the child.Further under the guidelines, a surrogate and the sperm/egg donors have to relinquish all their parental rights in relation to the child.21 The intended parent(s) are required to adopt the child unless they prove their genetic

14

Sarojini et al. (2011). ICMR (2005), supra note 13, para 3.5.4. 16 Id., para 3.5.12. 17 Id., para 3.10.5. 18 Id., para 3.10.2. 19 Id., para 3.16.1. 20 Id., para 3.5.4. 21 Id., Para 3.5.5. 15

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link to the child through DNA evidence.22 One very interesting feature of the guidelines is that they go beyond the archaic Indian Evidence Act, 1872, which limits legitimacy of a child born to only within 280 days after dissolution of marriage which may even be by death or divorce. Thus, a child born by artificially inseminating a woman with stored sperms from her deceased husband must be considered to be a legitimate child notwithstanding the existing presumptive law of evidence.23 (iii) Consideration Under the ICMR guidelines, a surrogate has a right to receive financial compensation to cover the expenses incurred during her pregnancy and postnatal care, and which is to be decided after a discussion between the intended parents and the proposed surrogate mother.24 The guidelines further provide that the ART clinics must not get involved in the monetary aspect of the transaction between the surrogate and the intended parents25 so as to ensure that the ART clinics do not make it into a business or convert it into a money racket.

3.4

The Law Commission of India 228th Report on ‘Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy.’ (August 2009)

Since the ICMR guidelines were unenforceable in nature, they were often violated and the cases related to parenthood and nationality in foreign cases mushroomed before the Indian Courts.26 The Supreme Court for the first time in the case of Baby

22

Id., para 3.10.1. The paragraph further states that if the intended parents are genetically related to the child and they establish it through DNA tests, they do not need to adopt the child to establish legal parenthood. Otherwise, a child born through surrogacy must be adopted by the genetic (biological) parents. Concerns have, however, been expressed in relation to this provision, as the Hindu Adoption and Maintenance Act 1956 does not allow non-Hindus to adopt a Hindu child. It has been suggested that, alternatively, the intended parents could petition for guardianship under the Guardians and Wards Act 1890. 23 Id., para 3.16.5 ‘Posthumous AIH Through a Sperm Bank.’ 24 Id., para 3.5.4 states: ‘‘…All the expenses of the surrogate mother during the period of pregnancy and post-natal care lactating to pregnancy should be borne by the couple seeking surrogacy. The surrogate mother would also be entitled to a monetary compensation for the couple for agreeing to act as a surrogate; the exact value of this compensation should be decided by discussion between the couple and the proposed surrogate mother.’ 25 Id., para 3.5.3. 26 Eg Balaz v. Anand Municipality, No. 3020, Special Civil Application (Gujarat High Court, 2008); Union of India & Anr v. Jan Balaz and others, Special Leave to Appeal (Civil) No.31639, Supreme Court of India, 2009; and Baby Manji Yamada v. Union of India, (2008) 13 SCC 518.

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Manji Case27 recognized the need for a comprehensive and effective legislation concerning surrogacy. While this case has been elaborately discussed in subsequent portion of this chapter, suffice will it be to state that this was a case which involved cross-border gestational surrogacy arrangement as the commissioning couple were Japanese and the surrogate mother was an Indian and the nationality and the citizenship of the surrogate child came up for consideration before the Indian Courts. This highly publicized case sparked an intense public debate on commercial surrogacy in India raising several questions with no clear answers. More importantly, it highlighted the need for adequate legal framework for the ever-growing market of commercial surrogacy in India. In August 2009, the Law Commission of India delivered Report No.228, titled ‘Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy.’ The report stated that “Surrogacy involves conflict of various interests and has inscrutable impact on the primary unit of society viz. family. Non-intervention of law in this knotty issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational. Active legislative intervention is required to facilitate correct uses of the new technology i.e. ART and relinquish the cocooned approach to legalization of surrogacy adopted hitherto. The need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones”.28

The Draft ART (Regulation) Bill, 2008 was also discussed in report and the Law Commission strongly advocated altruistic surrogacy in India with proper regulations in order to ensure safety of women from exploitation. The Law Commission recommended that commercial surrogacy should be discouraged and at the same time recommended financial support for the surrogate child in case of death of intended parent(s), prior to delivery of child or in case of divorce between them who thereafter do not wish to take the child. It further recommended for the life insurance cover for the surrogate mother along with prohibition on sex selection. It was also recommended that the surrogate child should be the legitimate child of the intended parents. It further recommended (i) option of one of the intended parents to be donor; (ii) right of privacy of donor as well as surrogate mother; (iii) prohibition of sex selection surrogacy; (iv) application of Medical Termination of Pregnancy Act in case of abortions.29 It further opined that it shall be the contract between the parties which will govern surrogacy agreements, and so far as the legal backing of the surrogacy is concerned, reference may be made to Article 16.1 of the Universal Declaration of Human Rights 1948 that confers ‘the right to marry and found a family to every adult without any limitation due to race, nationality or religion.’30 27

Baby Manji, AIR (2008) 13 SCC 518. Law Commission of India (2009), para 4.1. Available at https://lawcommissionofindia.nic.in/ reports/report228.pdf. Accessed June 8, 2018. 29 Id., para 4.2. 30 Id., para 1.9. 28

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The Assisted Reproductive Technology (Regulation) Bill, 2010

The ART (Regulation) Bill, 2008 stood replaced by the ART Bill, 201031 which aimed toward regulations of the numerous legal medical facets of surrogacy by establishing a National Advisory Board and by setting out guidelines for clinic accreditations and by outlining the rights and duties of surrogates and commissioning parents. The State of Maharashtra also in 2011 introduced the ART Bill; however, the said bill was not publicly released.32

3.5.1

Features of the Draft ART Bill, 2010

The Draft ART Bill, 2010 had nine chapters and 50 sections. It defined ‘surrogacy as an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate.’33 The draft bill legalized the commercial surrogacy against the recommendation of Law Commission of India and also permitted the ART bank to advertise for gamete donors and surrogates on a commercial basis, while keeping details of the parties involved in surrogacy confidential.34 However, no ART clinic was permitted to advertise for surrogacy for its clients.35 The bill was also appended with the Assisted Reproductive Technology (Regulation) Rules 2010 consisting of the model agreements for surrogacy, consent form for donation of egg oocytes and semen/sperm, contracts (including the financial arrangements) between the ART bank, on the one hand, and the semen donor, oocyte donor, surrogate mother, patient or the ART clinic, on the other hand; contract (including financial arrangement) between the patient and the surrogate, etc. The bill provided for an obligation upon the bank to financially compensate the donors and the surrogates. It also expressly mentioned that the ‘surrogate mother may also receive monetary compensation from the couple or individual, as the case may be for agreeing to act as such surrogate.’36 In fact, the model contract between the surrogate mother and commissioning parties set forth a payment plan in installments for compensating the surrogate mother and required first installment of 31

The Assisted Reproductive Technology Bill, 2010 (hereinafter referred to as ART Bill, 2010). Available at https://main.icmr.nic.in/sites/default/files/guidelines/ART%20REGULATION% 20Draft%20Bill1.pdf. 32 Porecha (2011). 33 ART Bill, 2010, supra note 31 s. 2(aa). 34 Id., s. 26(6) & s. 34(7). 35 Id., s. 34(7). 36 Id., s. 34(3).

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at least 5% of the total agreed compensation to be paid on embryo transfer. If the first embryo transfer was not successful, for each subsequent embryo transfer within six months of the first, the surrogate was to receive an additional 50% of the total initial price paid in the preceding installments. Second installment of at least 5% of the total agreed compensation was to be paid when the surrogate becomes pregnant; the third installment of at least 5% of the total agreed compensation was to be paid at the end of the first trimester; fourth installment of at least 10% at the end of the second trimester and the remaining 75% becoming payable just after delivery.37 Some of the provisions of the bill were as follows: (i) Who can be a Surrogate and who can opt for Surrogacy? The eligibility criteria for a surrogate mother provided that a woman acting as surrogate mother in India cannot be less than 21 or over 35 years.38 Further the preamble of the bill provided that infertility39 was the main reason for commissioning couples seeking the help of ART and surrogacy arrangements, and it treated the commissioning couple as patient(s)40 and created a bar on couples/persons who can have the capability of procreating normally from seeking the help of ART and surrogacy under the bill.41 Thus, under the bill the commissioning couple could either be infertile and/or the commissioning mother was incapacitated in taking her pregnancy to term. The 2010 bill also incorporated several other important stipulations. For instance, it put restrictions on the surrogate mother not to undergo embryo transfer for the same couple more than three times and not to give more than five live births, including her own children.42 However, according to the ICMR guidelines which are presently prevalent as well, a woman can act as a surrogate for a maximum of three times in her lifetime. The bill further provided that if a surrogate mother is married, it was mandatory for her to obtain the consent of her spouse43 and that only an Indian could be considered for rendering the service of surrogacy and no ART bank or clinic could receive or send an Indian citizen for surrogacy abroad.44 Further, a surrogate mother was put under a duty not to indulge in any act harmful to the fetus during pregnancy and the baby after birth.45 The bill also provided for

37

Assisted Reproductive Technology (Regulation) Rules, 2010 Form U Clause 3. Id., s. 34(5). 39 Id., s. 2(u) defines infertility, ‘means the inability to conceive after at least one year of unprotected coitus; or an anatomical/physiological condition that would prevent an individual from having a child.’ 40 Id., s. 2(x). 41 Id., s. 20(10). 42 Id. s. 34 (9) &proviso to s. 34(5). 43 Id., s. 34(16). 44 Id., s. 34(22). 45 Id., s. 34(23). 38

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issuance of a certificate to the surrogate acknowledging the fact that she has acted as a surrogate by the person or persons who have availed of her services.46 (ii) Prohibition of Sex Selection In conformity with Indian Laws which prohibit sex selection, the Draft ART Bill, 2010 restricted ART clinics from determining the sex of the child.47 (iii) Enforceability of Surrogacy Arrangements The Draft ART Bill, 2010 specifically provided that surrogacy agreements would be legally enforceable ensuring such agreements be treated at par with other standard contracts and the principles of the Indian Contract Act 1872.48 (iv) Legal Parenthood/Nationality of the Child The concerned draft legislation provided that a child delivered through the means of ART shall be presumed to be legitimate to the intending couple as born from the wedlock with consent of the spouses and the birth certificate issued with respect to the child born through surrogacy will bear the names of the commissioning parties as the child’s parents.49 The child shall also have rights similar to that of a child born through the natural biological process. Similarly, a child born to an unmarried couple or with their consent through the means of ART shall be considered legitimate.50 The bill also recognized a single man and a woman as legitimate parents under surrogacy contracts by providing that a child born out of an ART procedure to a single man or a single woman shall be considered to be a legitimate child.51 Having the harsh experience from Baby Manji case, the bill tried to deal with the situation where commissioning parents get separated after entering into the surrogacy contract but before the birth of the surrogate child by providing that if a married or an unmarried couple gets separated or divorced prior to the birth of the child and having consented to the ART procedure, the child shall be considered to be the legitimate child of the intending couple.52 At the same time, the bill made it clear that the child born from surrogacy in India to a foreign couple shall not be the citizen of India, thereby making its stand clear in cases involving international surrogacy arrangements (ISAs). The bill clearly provided, ‘if a foreigner or a foreign couple seeks sperm or egg donation, or surrogacy in India and a child is born as a consequence, the child, even though born in India, shall not be an Indian citizen.’53

46

Id., Id,. 48 Id., 49 Id., 50 Id., 51 Id., 52 Id., 53 Id., 47

s. s. s. s. s. s. s. s.

34(17). 25 (2). 34(1). 35(1). 35(2). 35(3). 35(4). 35(8).

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(v) Obligations on the Commissioning Parties The bill required the commissioning parties from countries other than India to prove via documentation to the ART clinic that firstly, the country of which they hold the nationality permits surrogacy54 and that the child born out of surrogacy would be permitted to enter into that country as an biological child of the commissioning couple along with an obligation on the part of the commissioning parents to appoint a local guardian, who would be legally responsible for taking care of the surrogate during and after the pregnancy until the child was delivered to the commissioning parties or the local guardian.55 The commissioning parties were made legally bound to accept the custody of the child, regardless of any abnormality of the child56 and refusal to take delivery of the child was considered an offense, punishable by imprisonment for up to three years or a fine or both.57 Also, if the foreign person/ couple seeking surrogacy does not take delivery of the child, the bill required the local guardian to be under an obligation to take delivery of the child and also to be held responsible for the well-being of the child during the transition period. It further prescribed that the local guardian would be free to hand over the child to an adoption agency if the commissioning party or their legal representatives fail to claim ownership of child within one month from the date of birth.58 In case of adoption or the legal guardian opting to bring up and rear the child, the child was to be granted Indian citizenship.59 In addition to this, bill also required the commissioning parties to ensure that the surrogate mother and the child born were ‘appropriately insured’ until the child was handed over and until the surrogate mother became free from all health complications arising from surrogacy.60 (vi) Obligations and Rights of the Surrogate Mother The bill provided for the relinquishment of the parental rights by the surrogate in favor of the intended parents.61 ‘Further, if embryo was formed using gametes from the donor, then in such cases it provided for the relinquishment of the parental rights by the donor over the child who may be conceived from his or her gametes.’62 It further casted an obligation on her to take good care of the fetus by not indulging in any activity which may be harmful to it, till the time the child is handed over to the intended person(s). Further, the bill required the child to be handed over immediately upon its birth by the surrogate to the intended parents.63 54

Id., s. 34(19). Ibid. 56 Id., s. 34(11). 57 Id., s. 40. 58 Supra note 54. 59 Ibid. 60 Id., s. 34 (24). 61 Id., s. 34 (4). 62 Id., s. 33(3). 63 Model Surrogacy Agreement appended to the Draft Rules, 2010 Form J. 55

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Further, in case the surrogate was carrying more than one fetus and the intended couple wanted fetal reduction, the surrogate mother was put under an obligation to agree to it.64 While speaking of rights, the surrogate mother had the right under the Medical Termination of Pregnancy Act of 1971 to terminate her pregnancy at will, and in such a situation she would be required to refund all certified and documented expenses incurred during the pregnancy, unless the termination was carried out on the basis of expert medical advice.65 Although the ART Bill attempted to address a number of issues, however, many issues still remain unanswered.

3.5.2

Critical Analysis of the Draft ART Bill, 2010

Though the Draft ART Bill, 2010 had been progressively enacted, at the same time the bill seemed to encourage medical tourism to earn foreign exchange rather than focusing on the health of the parties involved.66 (i) General Weaknesses • It is worthwhile to note that while the bill provided for the majority payments, i.e., 75% to be paid to the surrogate mother after the delivery, however, it remained silent in case there occurs a miscarriage or the surrogate dies during pregnancy. Further, apart from compelling the surrogate mother to remain under a financial insecurity till the time delivery takes place the contract between the bank and the surrogate, appended with the bill, also absolved the bank from any responsibility in case any complications arise during the period. • Though under Section 34(1) of the draft bill, the surrogacy arrangements were made legally enforceable. However, it was not clear as to what remedy damages or specific performance of contract would be made available in the event of breach of the contract by either of the party. Also, the bill came under severe criticism for partaking within its scope, only heterosexual couples, the term ‘couple’ having been defined as ‘two persons living together and having a sexual relationship that is legal in India’67 while on the contrary, in the Baby Manji case, the Supreme Court observed that ‘the intended parent may be a single male or a male homosexual couple.’

64

Ibid. Ibid. 66 Quadeer (2009). 67 ART Bill 2010, Supra note 31, s. 2(h). 65

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• The bill provided that a woman may be a surrogate for five successful births in her lifetime and which was also to include her own children (Section 34(5)) including a maximum of three attempts at pregnancy for one couple (Section 34(9)). This took the number of times she could undergo IVF cycles to a high figure, thereby taking her physical and mental health to a high risk. Similarly, the bill permitted a woman to donate her eggs six times in her life, at an interval of three months68 which could prove hazardous for her health. However, an important aspect relating to the maximum number of eggs that could be retrieved in each IVF cycle was left untouched. • Similarly, the Draft Rules 2010, entitled the couple to know the ethnicity and educational qualifications of the semen donor and details like religion, education and monthly income of the donor recorded in Form M as well as the information on oocyte donor recorded in form M1 and information on surrogate about education and occupation of the surrogate and her spouse (if any) religion and monthly income recorded in form M2, revealing such information to the intended parents and allowing them to choose donors, therefore, leading to discrimination against people belonging to particular religions castes and with low educational and economic status. The draft legislation proposed recognition of the surrogate child as legitimate to the commissioning parents, thereby doing away with the need of adoption or declaration of guardianship. However, such provisions could not be brought into force unilaterally without there being any corresponding amendment in personal laws, viz. The Hindu Marriage Act, 1995 especially with regard to recognizing legitimacy of children born via ‘surrogacy.’ (ii) Ambiguities in the Bill The Draft Bill, 2010 lacked clarity at many levels and used ambiguous language for instance. The bill did not provide for a checklist of disorders/diseases which a donor surrogate needs to be screened of before entering into a surrogacy arrangement. It did not provide for a minimum age eligibility of persons with different sexual orientations who wish to access ART. While the bill required the appointment of a local guardian for legality taking over the responsibility of the surrogate during the pregnancy till the delivery, however, there was no mention of what would be the role of the guardians more importantly, who can in the first place, be appointed as a guardian. Further, it was unclear as to why there is a separate listing of the legitimacy of the child born through ART to married, unmarried and single men and women under the bill.

Id., s. 26 (8) provides ‘No woman shall donate oocytes more than six times in her life, with not less than a three-months interval between the oocyte pick-ups.’ 68

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(iii) Contradictions in the Bill The bill also suffered from inherent contradictions, for instance, while it insisted upon keeping the identity of the surrogate mother a secret at the same time, it mandated the surrogate to register in her own name in respect of all medical treatments or procedures in relation to the concerned child, at the hospital or such medical facility, clearly declaring herself to be a surrogate mother and providing the name or names and addresses of the person or persons, as the case may be, for whom she is acting as a surrogate.69 Thus, the bill was itself unsure as to how to maintain privacy anonymity of the surrogate. Regarding the payments to be made to the surrogate Section 26 (6) stated that: ‘An ART bank may advertise for gametes donors and surrogate mothers, who may be compensated financially by the bank.’ However at the same time, it also provided that the terms of compensation for the surrogate mother are generally a matter between the surrogate and the commissioning parties. Further, the form of contract between the semen bank and the surrogate (form R2 (4)) mentioned that the consideration for the surrogacy was to be paid by the parents and the bank will not be responsible for any demand by the surrogate in the form of compensation. Further for any other expenses which may be incurred during the specified period, the bank had not been made responsible, thereby making it ambiguous as to who will actually compensate the surrogate, whether the bank or whether the couple/individual. Secondly, the bill was unclear about the venue of the actual oocytes retrieval and screening process—whether it was at the ART bank or the ART clinics. Section 26(1) states that ‘the collection, screening, storage, and handling of gametes shall be done by an ART bank.’ However, Section 20 (1) mentioned that ‘Assisted Reproductive Technology clinics shall ensure that patients, donors of gametes and surrogate mothers are eligible to avail assisted reproductive technology procedures under the criteria prescribed by the rules under the Act and that they have been medically tested for such diseases, sexually transmitted or otherwise, as may be prescribed and all other communicable diseases which may endanger the health of the parents or anyone of them, surrogate or child.’ It was not clear where the screening and testing of donors would take place. Also, since the ART banks were not equipped to conduct oocytes retrieval, the bill did not specify as to how they would equip themselves for the purpose. Another inherent contradiction can be found in the application form required to be filled up for registration/renewal by the ART bank. While the form required the bank to declare that it will operate independently of any ART clinic, in the same breath, however, it required the bank to undertake to explain the act and rules to all employees of the specific ART clinic in connection with which registration was sought.70 The independence of the ART bank, therefore, became doubtful and which was required to be done away with in order to effectively implement the proposed bill. Thus, it is clear that while many concerns regarding

69

Id., s. 34(8). The Assisted Reproductive Technology (Regulation) Rules, 2010 Form-A1.

70

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these guidelines had been taken care of in the Draft Bill, still many issues remained to be discussed as there was no clear solution available for them.

3.6

Ministry of Home Affairs New Visa Regulations for People Seeking Surrogacy Issued on July 9, 2012

While the Draft Bill was awaiting nod by the Parliament, the Indian Ministry of Home Affairs (MHA) has, in the interregnum, on 9-07-2012, issued new visa regulations for people coming to India seeking surrogacy. These regulations declared medical surrogacy visa as an appropriate visa category for intended parents to be granted subject to the following conditions: (i) “The foreign man and the woman are duly married and the marriage should have sustained at least for two years; (ii) A letter from the Embassy of the foreign country in India or the Foreign Ministry of the country should be enclosed with the Medical Surrogacy VISA application stating clearly that (a) the country recognizes surrogacy and (b) the child/children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/children of the couple commissioning surrogacy; (iii) The couple will furnish an undertaking that they would take care of the child/ children born through surrogacy; (iv) The treatment should be done only at one of the registered ART clinics recognized by ICMR (The list of such clinics will be shared with MEA from time to time); and (v) The couple should produce a duly notarized agreement between the applicant couple and the prospective Indian surrogate mother. 1. If any of the above conditions are not fulfilled, the surrogacy visa application shall be rejected. 2. Before the grant of visa, the foreign couple need to be told that before leaving India for their return journey, ‘exit’ permission from the FRRO/ FRO would be required. Before granting ‘exit’, the FRRO/FRO will see whether the foreign couple is carrying a certificate from the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the foreigner and that the liabilities towards the Indian surrogate mother have been fully discharged as per the agreement. A copy of the birth certificate(s) of the surrogate child/children will be retained by the FRRO/FRO along with photocopies of the passport and visa of the foreign parents. 3. It may be noted that for drawing up and executing the agreement cited at para 2 (v) above, the foreign couple can be permitted to visit India on a

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reconnaissance trip on Tourist Visa, but no samples may be given to any clinic during such preliminary visit. 4. These guidelines may kindly be circulated at all the missions for strict compliance.”71 Thus, clearly, single parent, gay couples and unmarried partners could not Commission surrogacy arrangements in India which were permissible till late. However on March 7, 2013 and July 16, 2013, via a letter issued by the Ministry of Home Affairs (MHA), Foreigners Division, in respect of cases where the baby has already been born through commissioning of surrogacy or the birth of the baby was expected shortly, certain relaxations were allowed up to 31.10.2013. Subsequently, vide another letter dated October 14, 2013, the MHA circulated that the guidelines issued by the Ministry of Home Affairs on July 9, 2012, would be strictly followed in all cases including where surrogacy has already been commissioned prior to 1.11.2013, and there shall be no further relaxation in the condition to be fulfilled for grant of medical visa/exit permissions, etc.72

3.7

The Ministry of Health and Family Welfare Instructions to Prohibit Commercial Surrogacy in India Vide Letter Dated 4.11.2015

Thereafter, on September 30, 2015, the Ministry of Health and Family Welfare (MOHFW), through its Department of Health Research (DHR), published the Assisted Reproductive Technology (Regulation) Bill, 2014 for public and stakeholder inviting comments and suggestions by November 15, 2015. While the enactment of said bill was still under consideration, a letter dated 4.11.2015 was issued by the Ministry of Health and Family Welfare, with its copy being marked to all the concerned departments. Vide the said letter dated 4.11.2015, the Ministry of Health and Family Welfare conveyed its policy decision to prohibit commercial surrogacy till the enactment of the legislation and has issued certain instructions which are mandatorily to be followed, till the enactment of the legislation. The instructions issued were as under: (i) Prohibition on import of ‘human embryo’ except for research purposes (ii) Restrictions on issuance of visa to foreign nationals and permissions to OCI visiting India for commissioning surrogacy

71

Ministry of Home Affairs Guidelines Regarding Foreign Nationals Intending to Visit India for Commissioning Surrogacy (2012). Available at https://www.mha.gov.in/PDF_Other/surrogacy 03112015.pdf. Accessed on February 20, 2016. 72 Available at https://main.icmr.nic.in/sites/default/files/art/Cir_5.pdf.

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(iii) Denial of exit permission to child/children born through surrogacy to foreign nationals/OCI except in cases where birth has taken place prior to the issuance of these instructions and (iv) Cancelation of visa/permissions granted, if any, subsequent to the issuance of these instructions. Further, the said letter had been directed to be given wide circulation among all stakeholders in their respective States/UTs as well as to all surrogacy clinics/IVF clinics/ART clinics and other clinical establishments operating under whatsoever name.73

3.8

The Assisted Reproductive Technology (Regulation) Bill, 2014

The proposed ART Bill, 2014 took forward the provisions of the ART Bill, 2010 such as provisions related to the determination of status of the child, addressing the issue of citizenship and other complexities, provisions related to proper development of the child talking about various tests to be conducted on various parties involved in the process, prohibition on the sex determination of the child, etc. The bill had X chapters and 95 sections. While some new provisions were also seen to have been incorporated, some of the important features/modifications noticed in the Assisted Reproductive Technology (Regulation) Bill, 2014 vis-a-vis ART Bill, 2010 were as follows: • Under ART Bill, 2014, the surrogacy could be availed only by Indian couple or OCIs, PIOs, NRIs and foreigners married to Indian citizens. (Section 60 (11) (a)). However, in 2010 bill, it was available to foreigners also, and there was no such requirement that foreigner should be married to the Indian citizen. • The ART Bill, 2014 shuts the door on homosexuals and further by requiring commissioning couples to be married the bill prohibits singles from having a child via surrogacy. However under ART Bill, 2010, bill single individuals can also avail surrogacy. • The ART Bill, 2014 provided for certain additional conditions for commissioning surrogacy to be complied by the commissioning couples in addition to conditions contained in ART Bill, 2010. For instance, such couples had to be married, and the marriage should have sustained for at least two years. They also had to produce a certificate saying ‘the woman is unable to conceive her own

73

The Ministry of Home Affairs (2015) Instructions prohibiting commercial surrogacy in India vide letter dated 3.11.2015. Available at https://www.mha.gov.in/PDF_Other/surrogacy03112015. pdf. Accessed on February 20, 2016.

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child.’74 Further commissioning couple were required to submit a certificate indicating that the child/children born in India through surrogacy is/are genetically linked to them, and they will not involve the child/children in any kind of pornography or pedophilia.75 The ART Bill, 2014 also required the commissioning party to submit legal documents from their respective countries permitting surrogacy and entry of the child born from such an arrangement, as a biological child or children of the commissioning couple.76 Further, prior to leaving India, an Overseas Citizen of India (OCIs), People of Indian Origin (PIOs) and foreigner married to an Indian citizen were required to procure an exit permission along with a certificate from the concerned ART clinic certifying that the custody of the child/children had been duly taken and all their liabilities toward the Indian surrogate mother stood fully discharged as per the agreement.77 • The Draft Bill, 2014 clearly mentioned that only married women were allowed to act as surrogate and that they should be minimum twenty-three years of age and maximum thirty-five years of age (in earlier bill minimum age was 21 and maximum was 35, and surrogate could be married or unmarried) and shall have at least one live child of her own with minimum age of three years. No woman was allowed to be a surrogate for more than one successful live birth in her life and with not less than two years interval between two deliveries.78 However, in ART Bill, 2010 the surrogate mother could undergo embryo transfer more than three times for the same couple and that she could not give more than five live births, including her own children. Further ART Bill, 2014 provided that a surrogate mother to be only an Indian citizen having an Aadhar card as proof of her identity.79 • The ART Bill, 2014 also provided for all the consent forms and agreements to be in local language, thereby equipping surrogates with complete knowledge of what they had actually agreed to undertake or perform or deliver.80 • To ensure the well-being of the child, the ART Bill, 2014 provided for insurance of the child born through surrogacy at the time of signing the agreement, till the age of twenty-one years or till the time of custody of the child or children is taken through appropriate insurance policy like Jeevan Balya, whichever is earlier, for well-being and maintenance of the child or children and also made it mandatory for the commissioning parent to provide for insurance of abnormal

74

The Assisted Reproduction Technology Bill 2014, s. 60(21)(a), available at https://www.prsindia. org/uploads/media/draft/Draft%20Assisted%20Reproductive%20Technology%20(Regulation)%20 Bill,%202014.pdf. 75 Id., s. 60(17)(b). 76 Id., s. 60 (21)(b). 77 Id., s. 60(21)(c)(i)(g) &(h). 78 Id., s. 60(5). 79 Id., s. 60(32). 80 Id., s. 47 (5).

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child if abnormalities were detected in the child/children during the gestation period and compensation to be used for the development and growth of the child/children by the next in the family, in case of accidental death of the commissioning parents during delivery or in the process of delivery of the surrogate child.81 • The concerned draft legislation also provided that a child delivered through the means of ART shall be presumed to be legitimate to the intending couple as born from the wedlock with consent of the spouses and the birth certificate issued with respect to the child born through surrogacy will bear the names of the commissioning parties as the child’s parents.82 The child shall also have rights similar to that of a child born through the natural biological process. However the ART Bill, 2014 also failed to take the shape of law and in the year 2017, the Draft Assisted Reproductive Technology (Regulation) Bill, 2017 was uploaded on the Web site of Department of Health and Research seeking comments from the stakeholders within a period of 30 days but before it could be taken up, The Surrogacy (Regulation) Bill of 2016 which was introduced in the year 2016, came to be passed by the Lok Sabha in the year 2018.

3.9

The Surrogacy (Regulation) Bill, 2016

The Surrogacy (Regulation) Bill, 2016 was introduced in the Lok Sabha with the following objectives mentioned as under: • To regulate the practice of surrogacy in the country • To provide infertile Indian couples an alternative route to become parents • To allow altruistic surrogacy and prohibit commercial surrogacy and sale and purchase of human embryo and gametes. To prevent the exploitation of the surrogate mothers and to protect the rights of the children born out of these surrogacy arrangements.83

3.9.1

Features of the Surrogacy (Regulation) Bill, 2016

Considering the fact that the primary reason for the legislature was to regulate the commercialization of child birth and parenthood and exploitation of women as surrogates, it was not surprising that the Surrogacy (Regulation) Bill, 2016 81

Id., s. 60 21(a) (iv) and s. 60 11(c). Id., s. 61(1). 83 The Surrogacy (Regulation) Bill, 2016. Available at https://prsindia.org/Billtrack/the-surrogacyregulation-Bill-2016. 82

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prohibited commercial surrogacy while permitting altruistic surrogacy. The bill permitted surrogacy in cases when • The intended couple suffered from proven infertility. • The surrogacy desired was altruistic in nature. • There was no monetary benefit involved for the surrogate apart from basic medical expenses and insurance coverage. • The surrogacy was not intended for sale, prostitution or any other form of exploitation of children. The bill had VIII chapters and 51 sections. It defined ‘surrogacy as a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.’84 Some of the important provisions of the bill were (i) Nature of surrogacy Arrangement As discussed supra, the Surrogacy (Regulation) Bill, 2016 prohibited commercial surrogacy while permitting altruistic surrogacy as defined under Clause 2(b) as follows: Altruistic surrogacy means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative.

(ii) Who can be a Surrogate and who can opt for Surrogacy? Under the Surrogacy (Regulation) Bill, 2016, it could only be a married woman and a close relative of the intended couple who could act as a surrogate. It further provided that the surrogate should have a child of her own and be in the age group of 25 years to 35 years of age and should not have been a surrogate prior in her lifetime. The said bill further required her to produce a certificate of medical and psychological fitness and also prohibited her from donating her egg or oocyte in the process of surrogacy. The surrogate was also required to be in possession of eligibility certificate issued by the appropriate authority on the fulfillment of the above-mentioned criteria before entering into such arrangement.85 As to who could Commission a surrogacy arrangement, the Surrogacy Bill, 2016 allowed only Indian heterosexual married couple to avail surrogacy services and created a bar on couples who can have the capability of procreating normally. Therefore, the bill mandated the intended legally married couples, who have been married for at least 5 years and the wife being between 23 and 50 years and the husband being between 26 and 55 years of age, to get a Certificate of Eligibility86 84

Id. s. 2 (zb). Id. s. 4(iii)(b)(I-IV). 86 Id., s. s. 4(iii) (c)(I-III). 85

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and Certificate of Essentiality issued by the appropriate authority after getting issued a certificate of proven infertility from the District Medical Board along with an order concerning the parentage and custody of the child passed by the Court of the Magistrate of the first class or above, on an application made by the intending couple and surrogate mother.87 The bill also prohibited intending couple to take recourse to surrogacy if they were already having a surviving biological, surrogate or adopted child of their own with the exception that the surviving child was either physically or mentally challenged or suffered from a life-threatening disease or fatal illness with no permanent cure and which illness was approved by the appropriate authority along with a medical certificate from a District Medical Board, with such other conditions as may be specified by the regulation.88 The bill also mandated the intending couple to execute an insurance coverage in favor of the surrogate mother by an insurance company or an insurance agent recognized by Insurance Regulatory Development Authority (IRDA).89 Therefore clearly, NRIs/PIOs/OCIs were not permitted by the 2016 bill to avail surrogacy services in India.90 Further, the bill did not contain any provision regarding having a contract citing legal aspects. (iii) Legal Parenthood/Nationality of the Child The bill dealt with the issue of parentage citizenship of surrogate children by presuming the child so born to be a legitimate child of the couple and having the same rights akin to a child born biologically.91 (iv) Rights and Obligations of the Parties Involved • The bill mandated the intending couple to execute an insurance coverage in favor of the surrogate mother by an insurance company or an insurance agent recognized by Insurance Regulatory Development Authority (IRDA). • The bill contained provisions which mandated explaining to the surrogate mother all known side effects and after effects of surrogacy procedures. The bill also mandated that her written informed consent should be taken in a language in which she understands prior to her undergoing the procedure.92 Further, the bill laid down that the surrogate mother could not be forced by any person, organization, surrogacy clinic, laboratory or clinical establishment to abort at any stage during the pregnancy. If such a situation was to arise, then the bill provided that a written consent of the surrogate

87

Id., s. 4(iii) (a)(I-II). Supra note, 86. 89 Supra note, 87. 90 Id., s. 4(iii)(c)II. 91 Id., s. 7. 92 Id., s. 6. 88

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mother and an authorization by the appropriate authority would be required in compliance with the Medical Termination of Pregnancy Act, 1971.93 • The bill mandated that a child born from surrogacy shall not be abandoned by the intending couple or the intending woman in any condition or for any reason whatsoever even if the child suffers from any genetic defect, birth defect or any medical condition or any condition developed subsequently or due to the sex of the child or due to multiple children being born from the procedure.94 Doing so attracted a penalty of up to Rs 10 lakhs and an imprisonment term of not less than 10 years.95 • To protect the interest of the child, the bill required the intending couple to procure a certificate of eligibility and certificate of essentiality issued by the appropriate authority.96 (v) Establishment of Appropriate Authority The bill provided for the appointment of appropriate authority by the Central and the State Government for consisting of Joint Director of a State Health Department; an officer of the State Law Department; a medical practitioner and an eminent woman97 for performing various functions such as granting, cancelation and suspension of surrogacy clinics; enforcement of standards for surrogacy clinics; investigation of cases filed for violation of the act, etc.98 It is pertinent to mention that the bill mandated that no surrogacy clinic can begin functioning prior to grant of registration by the authority and which application for registration must be tendered to within 60 days of appointment of the appropriate authority and that the same would have to be accepted or declined within a period of 90 days from the application.99 Further, surrogacy clinics were barred to keep any human embryo or gamete for the purpose of conducting surrogacy.100 (vi) Establishment of National and State Surrogacy Boards • The bill mandated the establishment of National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) by the Central Government and all State Governments, respectively. The functions of the NSB included ‘advising the Central Government on policy matters relating to surrogacy;reviewing and monitoring the implementation of the Act, rules and regulations under the Act and recommending the Central Government, to 93

Id. s. 3 (vi). Id., s. 7. 95 Id., s. 35(1)(c)& 35(2). 96 Supra note, 86&87. 97 Id., s. 32(3). 98 Id., s. 33. 99 Id., s. 10(3) & s. 11. 100 Id., s. 3(vii). 94

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make changes in it; laying down a code of conduct for persons working in surrogacy clinics;overseeing the performance of various bodies constituted under the Act and taking appropriate steps for ensuring appropriate performance by them.’101 On the other hand, the functions of SSBs included reviewing the activities of the appropriate authorities functioning in the State or Union Territory and recommended appropriate action against them, sending consolidated reports of various activities undertaken in the State under the act, to the board and the Central Government, etc.102 (vii) Offences and penalties The bill provided a punishment of imprisonment of not less than ten years along with a fine that may extend up to rupees ten lakh for anyone advertising or undertaking commercial surrogacy, selling or importing human embryos for surrogacy or running a racket or an organization indulging in sale, purchase and trade of the same, exploiting the surrogating mother or the surrogate child and abandoning or disowning the child.103

3.9.2

General Weakness, Ambiguities and Contradictions of the Bill

Although the bill was presented with a view to regulate the commercialization of child birth and parenthood and exploitation of women as surrogates, however, it was not successful in doing so. Some of the flaws noticed under the said bill can be seen as under: • The bill mandated the intended couple to prove infertility in order to avail the services of a surrogate.104 Further, infertility was described as a condition when a couple is not able to conceive after five years of unprotected coitus.105 However, this definition did not cover all the possible situations due to which a couple could not procreate as well as other medical complications that can hamper in successful pregnancies such as diabetes, hypertension and even multiple fibroids in the uterus. Therefore, the definition provided in the 2016 bill did not cover such persons and the women with such conditions to avail the benefits of altruistic surrogacy.106 101

Id., s. 22. Id., s. 23. 103 Id s. 35(1) a to f & s. 35(2). 104 Id., s. 4(iii)(a)(I). 105 Id., s. 2(p). 106 See also https://prsindia.org/files/Bills_acts/Bills_parliament/Legislative%20Brief-Surrogacy% 20Bill.pdf. 102

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• Under the bill, the National State Board was also empowered to prescribe regulations ‘for any other condition or disease’ for which surrogacy may be allowed in addition to the purposes mentioned in the bill for undertaking surrogacy.107 However, use of the term ‘for any other condition’ appeared to be ambiguous since it was not clear if the condition mentioned here meant medical condition or a condition of some other nature. • Under the bill, the intended couple and the surrogate had to obtain certificate of essentiality and certificate of eligibility for undergoing the process. However, the bill failed to specify the time limit under which appropriate authorities needed to grant certificates or communicate the rejection. It also did not specify a review or appeal process in case the application for surrogacy was rejected by the authority.108 • One of the most discussed and contentious provisions of the bill was Clause 4 (iii) (b) (II), laying a condition that only a close relative of the intended couple could perform the role of a surrogate mother. However, the bill did not define the term close relative. This begged the question as to what all relations could come under close relative and as to who will determine it. Therefore, this term ‘close relative’ no doubt had the potential of causing a huge amount of confusion and would have also led to exploitation of women since many women could have been forced or due to family pressure had to offer themselves as a surrogate mother for another couple in the family. • The bill laid down the requirement of the written consent of the surrogate mother and the authorization from the appropriate authority for the process of abortion.109 Further, it was mentioned that the surrogate mother cannot be coerced into aborting the fetus.110 However, there was no mention of authorization or consultation from the intending parents even when the bill explicitly mentioned that the intended parents will be considered the biological parents of the surrogate child and will also bear the responsibility of bringing up the child. Though this was in line with the provisions of the Medical Termination of Pregnancy Act, 1971 which states that abortion in the above-mentioned cases can only be allowed on the consent of the pregnant woman and no one else. However, in case of surrogacy, the situation is much more complex where two parties are involved. Therefore, the provisions of the bill did not take into account the complexities of the process of surrogacy while drafting this particular provision. • The bill prohibited storage of embryos and gametes for the purpose of surrogacy111 which was in contradiction of the ICMR guidelines (2005) which allowed the storage of gametes and embryos for up to five years. In the process of surrogacy, the intended mothers may have to go through extensive hormonal

107

Surrogacy Bill 2016, Supra note 83. Id., s. 4(ii)(e). Also see s. 4(ii)(e to f). Supra note 106. 109 Id. s. 3(vi). 110 Id. s. 9. 111 Id. c. 3(vii). 108

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treatment for the extraction of eggs from their bodies which are later implanted into the uterus of the surrogate mother, and this may require multiple implantations. If the process of extraction of egg is performed repeatedly on the intended mother, this may lead to the risk of her having ‘Ovarian Hyperstimulation Syndrome’ which in some cases might lead to kidney failure or blood clotting. Therefore, to ensure that eggs are available all the time, storage was necessary which was not provided in the 2016 bill which seems to be a glaring error on the part of legislature.112 • The bill was silent on the aspect of consent of the partner of the surrogate mother. With some of these drawbacks, however, when the bill was presented before Rajya Sabha, Parliamentary Standing Committee on the Surrogacy (Regulation) Bill, 2016 it put forward various recommendations after interacting with various stakeholders and also looking into prevailing laws in various international jurisdictions.

3.10

102nd Report of the Parliamentary Standing Committee on the Surrogacy (Regulation) Bill, 2016

Before proceeding further, it is pertinent to mention that the provisions of the Surrogacy (Regulation) Bill, 2016 are addressed as ‘Sections’ in the bill, whereas the same provisions are addressed as ‘clauses’ by the Parliamentary Standing Committee. Thus, the term ‘clauses’ means the same ‘section’ that is addressed within the bill. Some of the major recommendations put forward by the Parliamentary Standing Committee on the Surrogacy (Regulation) Bill, 2016 were as follows113: • On the definition of altruistic surrogacy The committee observed and analyzed the definition of ‘altruistic surrogacy’ and ‘commercial surrogacy’ in Clause 2(b)114 and 2(f)115 of the bill, respectively, and

112

Supra note 106. Department Related Parliamentary Standing Committee on Health and Family Welfare (2017), 102nd Report on the Surrogacy Regulation Bill, 2016, Available at http://164.100.47.5/ committee_web/ReportFile/14/100/102_2018_6_15.pdf. Accessed on June 8, 2018. 114 According to Clause 2(b) of the Surrogacy (Regulation) 2016 Bill, ‘altruistic surrogacy’ means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative. 115 According to Clause 2(f) of the Surrogacy (Regulation) 2016 Bill, ‘commercial surrogacy means commercialization of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother.’ 113

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considered to the views of various stakeholders involved in altruistic surrogacy. It was observed by the committee that while there was indeed a lot of scope of exploitation of surrogate women in commercial surrogacy, but it stems from the fact that there was no regulatory oversight or legal protection available for the surrogate and that it can minimized with a proper regulatory framework in place. The committee observed that dismissing the economic opportunity that surrogacy provides to surrogates is quite patronizing. Denying payment to women for reproductive labor provided by them for another person was in the eyes of the committee, ‘grossly unfair and arbitrary.’ Mostly notably, the committee observed that altruistic surrogacy is an extreme based on noble intentions and kindness and puts a very high moral obligation on women to provide the services of a surrogate without being monetarily compensated. Consequently, it was of the view that altruistic surrogacy was based on moralistic assumptions and patronizing endeavors rather than any solid scientific grounds and keeping in mind the stark ground reality of poverty stricken homes, and it remarked that they could not recommend taking away altogether the financial opportunity that surrogacy offers these women. Therefore, it was finally recommended that the word ‘altruistic’ in Clause 2(b) be replaced by the word ‘compensated’ and further modifications be made in the bill to bring it in consonance with the compensated surrogacy model.116 • On the Definition of ‘Couple’ The bill under Clause 2(g) of the bill defined a ‘couple’ as legally married man and woman above the age of 21 years and 18 years, respectively. The committee observed that by limiting the option of surrogacy to heterosexual couples only, the bill overlooked a large section of the society and by denying the opportunity to have a biological child by an alternative method to widows and divorcees. Further, it also observed that by keeping live-in couples out of the purview of availing surrogate services, the bill was too myopic in its approach and too narrow in its understanding of the modern society. • On allowing NRIs, PIOs and OCI Cardholders to Avail Services of Indian Surrogates Since the bill under Clause 4(iii)I (II) provided that the couple to be eligible for availing surrogacy services should be Indian citizens. The committee recommended for extending the services of surrogacy to NRIs, PIOs and OCIs, since India is a country of their origin while keeping foreign nationals out of the ambit of the regulatory framework altogether. It was also recommended by the committee that a mechanism needs to be put in place for background check of the NRI/PIO/OCI couple commissioning a surrogacy in India along with documental scrutiny by the appropriate authority for granting permission to avail surrogacy services in addition

116

Supra note 113, para 5.22.

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102nd Report of the Parliamentary Standing Committee …

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to ‘declaration’ or an ‘NOC’ by the commissioning couple stating that the child born out of the surrogacy arrangement shall bear the same nationality as the commissioning couple.117 • On the Definition of Infertility Looking into Clause 2(p) of the said bill that defined infertility as ‘The inability to conceive after five years of unprotected coitus’ as well as Clause 4(iI(c)(II) that specified that the intended couple seeking it should be married for at least five years without having a child to avail for them to be eligible for the service. The committee opined that the said requirement violated the right to reproductive autonomy of people in general, and thus, the definition of infertility and the condition precedent of five years of marriage as stipulated in the bill were neither based on any due diligence or an understanding of ground realities of the society, nor it was based on any sound medical reasoning. In fact, the committee found out that surrogacy was the last resort taken by the couples in most cases mainly due to the economic costs involved. Further, acknowledging the modern tendency in people to get married in their 30 and 40 s due to their busy and hectic lifestyle, the committee observed that a requirement of a five-year waiting period might adversely affect the quality of gametes of the intended parents and might significantly reduce their chances of becoming a parent through surrogacy. • On ‘Close Relative’ as a Surrogate Mother While also looking into subclause (II) of Clause 4(iii)(b) of the bill laying down the conditions that needed to be fulfilled by a potential surrogate (already discussed under the heading who can be a surrogate) to be eligible for providing surrogacy services as a surrogate mother, on one such condition that woman has to be a close relative of the intending couple, the committee felt that the provisions of the bill did not keep in mind the familial and patriarchal structure of our families where women might not have the freedom to resist the demand made to be surrogate mother to a close relative. It was felt that by only allowing close relatives to become surrogate mothers, compulsion and coercion rather than altruism might become the norm for women providing surrogacy services. According to the committee report, the provisions of the bill disregarded the social and cultural ethos of a country like India. According to the committee, the restriction put by the bill only a close relative allowed to become a surrogate mother may lead to an emotional bond developing between the surrogate mother and the child since the intending couple and the surrogate will always be in close proximity with each other. This might not just lead to awkward situations within the family but also have a deep psychological and emotional impact upon child. Another extremely pertinent point raised by the committee was that such an arrangement might lead to parentage and custody battles along with inheritance and property dispute in many Indian families in the

117

Id., para 5.42.

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future. Further, it was correctly pointed out in the report that topics like infertility and undergoing surrogacy are still taboo topics in our country. By only being allowed to choose a close relative, the intending couple, the bill forces the couple to declare the infertility in the family which is a violation of the right to privacy and reproductive autonomy as provided under Article 21 of the Constitution of India. The committee asserted that every person who is medically infertile is entitled to their right to surrogacy from women willing to volunteer as surrogate mothers while maintaining their privacy at the same time. The committee finally concluded that idea of restricting taking surrogacy services from only close relatives since it is unworkable and non-pragmatic in its approach and has no connection with efforts to curb exploitation of surrogate mothers. Therefore, it was recommended that the clause mandating ‘close relative’ as a surrogate mother be removed to broaden the scope for bringing in any willing woman even from outside the confines of the family of the commissioning couple. The law should permit both related and unrelated to volunteer to become a surrogate.118 • On Abandoning the Child The committee looked into Clause 4(iii)(c)(III) which provided an exception to those couples who do have a child of their own but that child is suffering from a mental or physical disorder or a fatal illness with no permanent cure to avail the surrogacy services. But as the committee noted, the bill also prohibited abandonment of a child born via surrogacy for genetic or medical defects or any other medical conditions and the commissioning couple cannot go for another surrogacy procedure if the child born as part of the surrogacy arrangement suffers from the same. The provisions are contradictory in nature, and the same was pointed out in the report by the committee as it failed to understand the rationale behind such a provision and termed it discriminatory. The committee was of the view every couple who unfortunately become parents to a child suffering from a mental or physical order or any other fatal medical condition should have the chance to avail surrogacy services for the second time and recommended that an amendment be made to that effect.119 • On the Definition of ‘Surrogacy’ The bill under Clause 2(zb) defined surrogacy as a ‘practice where one woman bears and gives birth to a child for an intending couple for the purpose of handing over the child to them post birth.’ The committee was of the opinion that the definition failed to mention pregnancy through ART like the IVF. The committee was of the view that the definition of surrogacy should be clear and unambiguous and thus completely devoid of any arbitrary interpretation. The definition should be precise, explicit and descriptive in nature. The committee recommended the

118

Id., paras 5.78 to 5.83. Id., para 5.47.

119

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legislature to look into the definition provided by the ART Bill, 2014 which was more inclusive in nature and contained all the relevant ingredients necessary to completely understand surrogacy. Hence, it was suggested that definition provided in the 2014 bill be included in Clause 2(zb) of the Surrogacy Bill.120 • On the Rights of the Surrogate Mother The committee was of the belief on the issue regarding payment of expenses being limited to only medical and insurance coverage during the period of pregnancy and thus, thereby leaving no scope for any other reasonable expenses, it was observed that these are not the only expenses incurred by a surrogate during the process of pregnancy which also involves other invaluable things such as loss of health, absence from regular work, absence of family members and especially distance from their own children which one cannot be measured in monetary terms. As such, it was recommended that the surrogate be sufficiently compensated for the services rendered by her which should be fixed keeping in mind the aforementioned circumstances and be proportionate to her loss of income as a result of the surrogacy procedure and which should also cover other ancillary activities such as medical screening, counseling of not just the surrogate but also her husband and her children, nutritional and dietary supplements of the surrogate, pre and postdelivery care, etc. A compensation to the kin in case of the death of surrogate as a result of surrogacy procedure was also recommended by the committee.121 It was also observed that the existence of a private contract model across the country that relied on the bargaining power of the parties had made the procedure of surrogacy an exploitative process for the surrogate since a high majority of surrogates came from weak, educational and financial backgrounds and therefore, incapable of resorting to a sound legal representative. In this view of the matter, the committee recommended for fixation of the quantum of compensation by relevant authorities rather than being a matter of bargaining power between the parties. Further, it was recommended by the committee that the compensation for the procedure should start at the first day of medication or when any procedure related to surrogacy takes place and that the said compensation should be directly transferred into the bank account of the surrogate.122 Another pertinent observation by the committee was the fact that due to most of the surrogates being illiterate and uneducated, they remain unaware of the side effects of the entire procedure of surrogacy and also are not all well-versed with the terms of the surrogacy contract which makes them quite vulnerable and as such, their consent may not amount to informed consent. In the light of this, the committee first recommended for laying out an elaborate mechanism to obtain the consent of the surrogate, and secondly, the consent of the surrogate’s husband should also be taken. Thirdly, the committee recommended that there should be an 120

Id., para 5.71. Id., para 5.24. 122 Id., para 5.25. 121

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option provided to the surrogate to opt out of surrogacy any time prior to the start of the procedure.123 Further, it was recommended that since the surrogate/birth mother and the intended mother are involved in child birth and child rearing, respectively, both of them should be provided with maternity benefits and also continuity of their services for the benefit of the child.124 • On the Welfare of Surrogate Child The committee advocated strongly in favor of rights of the surrogate child and recommended that the legislation should contain provisions regarding insurance adequate coverage for the unborn child. The committee observed that the bill did not provide for social security insurance in favor of the surrogate child in case of the death of the commissioning parents during pregnancy. It was of the view that mere insurance provisions would not suffice and the legislation should also contain provisions regarding bank guarantees and fixed deposits to take care of the needs of the surrogate child, should any unforeseen contingency arise like death or divorce of commissioning parents. Therefore, there must be inclusion of the definition of insurance for surrogate child in the bill. Also, it recommended for a separate cover for a child born with any abnormality or disability.125 Further, it was recommended that an abandoned child must be taken care of by the State Government. Lastly, a separate definition of surrogate child was recommended so as to differentiate them from children born to couples who have themselves undergone ART procedures to beget a child.126 • On Surrogacy Agreements The committee observed that a merely obtaining a parentage order from a First-Class Magistrate to obtain the custody of the child born from surrogacy should not be sufficient and, therefore, recommended incorporation in the bill as well as in the surrogacy agreement, of proper legal framework for the protection of surrogate and the child along with necessary compensation for the surrogate, mandatory insurance coverage, nourishment during the delivery as well as the postdelivery care, legal medical and psychological counseling and a comprehensive health care for a period of five years starting from the date any medication for surrogacy procedure is begun. It was further recommended that the surrogacy agreement be made available in a language which the surrogate understands or a representative be made available to her who can explain to her in case she is unable to read or write in any language. Further it recommended that the surrogacy agreement should be registered before the Registrar where the surrogate mother resides or where the intending parents reside or where the agreement is executed and which will act as bedrock of the surrogacy arrangement and shall have a legal binding effect on all 123

Id., Id., 125 Id., 126 Id., 124

para para para para

5.121. 5.62. 6.11. 6.12.

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the parties involved in surrogacy and will also solidify the rights and duties of both the participants. Therefore, the committee recommended that an agreement of surrogacy among all the stakeholders of the facility, i.e., the intending parents, surrogate mother and the surrogacy clinic should be made as a mandatory document for the surrogacy arrangement for them and suggested that necessary amendments/ alternate clauses may accordingly be incorporated in the bill.127 Unfortunately, the recommendations of the 102nd Parliamentary Standing Committee Report on the 2016 bill were not heeded to by the legislature, and in the year 2019 Surrogacy (Regulation) Bill, 2019 was introduced by the cabinet. The Surrogacy Bill, 2019 was mostly identical to the 2016 bill with the same drawbacks as existing in 2016 bill.

3.11

The Surrogacy (Regulation) Bill, 2019

Since the Surrogacy Bill, 2019 was mostly identical to the 2016 bill as the recommendations of the 102nd Parliamentary Standing Committee Report on the 2016 bill were not heeded to by the legislature while drafting the 2019 bill, therefore, without entering into the details of the same, it is deemed apposite to look into the Report of the Select Committee on the Surrogacy (Regulation) Bill, 2019 which was presented to the Rajya Sabha on February 5, 2020, which made various recommendations after interacting with the various stakeholders involved and after looking into the report on the 2016 bill resulted in putting in domain Surrogacy (Regulation) Bill, 2020.

3.12

Recommendations of the Select Committee on the Surrogacy (Regulation) Bill, 2019

While again, the provisions of the Surrogacy (Regulation) Bill, 2019 were addressed as ‘Sections’ in the bill, the select committee referred to them as ‘Clauses.’ Some of the recommendations put forward by the select committee on the Surrogacy (Regulation) Bill, 2019 can be seen as under.128 • On Altruistic Surrogacy The committee recommended for the altruistic surrogacy where the surrogate mother shall be genetically related to either person from the intended couple. It also looked into the argument of Department of Health Research which presented the

127

Id., para 6.6. The Select Committee Report (2020). Available at https://prsindia.org/files/Bills_acts/Bills_ parliament/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf. Accessed on March 4, 2020.

128

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view that compensated surrogacy may lead to commercialization of the process and in turn lead to the exploitation of the surrogate mother. Similar views were provided by the 228th Report of the Law Commission of India which advocated for prohibition of commercial surrogacy. Like the previous report on the 2016 bill, even the 2019 report was critical of the definition of altruistic surrogacy in Clause 2(b) which is identical to the definition in 2016 bill. This report like the previous one reiterated the fact that framers of the bill made a mistake in assuming that unpaid surrogacy is not exploitative which is not true. Further, the report also pointed out that the bill ignored the potential loss in earnings of the surrogate since she has to put her life on hold for two years to successfully complete the process of surrogacy where she is supposed to bear all the mental physical and emotional stress of bearing the child in her womb and that too free of cost and out of compassion. The committee members strongly felt that the word ‘altruistic’ should be replaced by the term ‘compensated’ and that it should be termed as ‘compensated surrogacy’ instead of the former. The term was deemed appropriate since it was felt that it would compensate for the loss of wages, work and health, suffering, etc., of the surrogate mother. The committee opined that surrogacy should be classified on the basis of the intention of the surrogate mother to volunteer for surrogacy, that is, if the intention of the surrogate is to make money, then it should be classified as commercial surrogacy and if the intention is to render a paid service, then it should be termed as compensatory surrogacy. It was thought fit by the committee that to preserve the sanctity of the institution of ‘motherhood’ it was imperative that surrogacy remain altruistic in nature. Thus, after a lot of deliberations of the issues in question, the committee decided that the definition of surrogacy in Clause 2(b) needed modification and recommended amendment by addition of expression ‘and such other prescribed expenses’ in the definition of altruistic surrogacy which was proposed to be read as follows: “Altruistic surrogacy means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative.”129

• On Infertility Another contention, before the committee was the definition of infertility provided by the bill as being ‘unable to conceive a child till five years of unprotected sexual intercourse between a heterosexual married couple.’ The committee members were of the opinion that the time frame of five years was too long for a couple to wait for a child. The members also looked into the definition of infertility as provided by the World Health Organization (WHO) which stipulates a time frame of 12 months.

129

Id.,para 4.11&4.13 also see para 3.2.

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Recommendations of the Select Committee on the Surrogacy …

107

Further, on the requirement to obtain a certificate of infertility from District Medical Board under Clause 4(iii)(a)(I), the same was looked upon being as offensive and a breach of the person’s right to privacy under Article 21 of the Constitution. Also, the committee believed that the time frame provided by the 2019 bill was too long a period particularly in cases of absent or damaged uterus and removal of uterus as a result of cancer, etc. Therefore, in light of the above reservations, the committee recommended the deletion of Clause 2(p) of the bill.130 • On Intending Couple Following the deletion of Clause 2(p), the committee recommended that Clause 2 (r), which defined intending couples ‘as a couple who have certified medically infertile’ should be amended and should instead read as follows: ‘intending couple means a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy.’

Further, the committee also took note of the situation where a single person may want to avail surrogacy such as a young widow who cannot carry a child in her womb due to the fear of stigmatization from the society. Similarly, there might be the case of a divorced woman who does not want to remarry but wants a child. Therefore, it was recommended by the committee that it was important to insert the definition of ‘intending woman’ which should defined under Clause 2(r)(a) to reads as follows: ‘Intending woman means an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail surrogacy.’131

Other consequential amendments to the bill were also recommended. The committee recommended amendment to Clause 2(zf) which defines ‘Surrogate mother’ by inserting intended woman in it to clarify that a surrogate can carry a child for a heterosexual couple as well as a single woman. Consequentially, the clause was proposed to read as follows: “surrogate mother means a woman who agrees to bear a child (the Child who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb and fulfills the conditions as provided in sub-clause (b) of clause (iii) of section 4.”132

It is pertinent to note that some members and stakeholders desired to include ‘single men’ (including divorcees and widows), live-in and gay couples in the eligible category for availing surrogacy services but ultimately, it was not included in the recommendations. The proponents of inclusion argued that not including the above-mentioned category of persons in the bill would be violation of not just right

130

Id.,para 4.20 &4.21. Id.,para 4.23 &4.24. 132 Id.,para 4.26. 131

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to equality but also violative of their right to reproductive autonomy under Article 21 of the Constitution of India, 1950 especially after the landmark judgement pronounced by the Apex Court of the country upholding the rights of homosexuals and transgender by affirming that they are equally entitled to the fundamental rights granted in the Constitution.133 • On Close Relative On the eligibility criteria for becoming a surrogate mother, i.e., being a ‘close relative’ of the intending couples under Clause 4(iii) (b) (II), the committee was of the view such a stipulation will reduce the availability of potential surrogate mothers over a period of time. It was felt that surrogacy is a private affair and persons pursuing parenthood through surrogacy would want to keep their diagnosis confidential and hidden from their families and thus the precondition of a close relative being a surrogate mother will be in violation of the Right to Privacy and the Right to Reproductive Autonomy under Article 21 of the Constitution of India. Therefore, it recommended for removal of the term ‘close relative’ and substituting it by a term called ‘a willing woman.’134

3.13

The Surrogacy (Regulation) Bill, 2020

Before commencing the discussion on the 2020 bill, it is apposite to mention here that this bill was introduced along with two other legislations, namely The Assisted Reproductive Technology (Regulation) Bill, 2020 (ART Bill) and the Medical Termination of Pregnancy (Amendment) Bill, 2020 (MTP Bill). The ART Bill, 2020 aims toward providing for a safe and an ethical practice of Assisted Reproductive Technology in the country by providing a regulatory framework ensuring that ART clinics are registered and are monitored closely.135 It seeks to establish a National Advisory Board, State Advisory Boards and a National Registry for accreditations, regulation and supervision of all Assisted Reproductive Technology clinics and Assisted Reproductive Technology banks.136 On the other hand, The MTP Amendment Bill has been enacted with an objective to strengthen women’s reproductive rights and to prevent unsafe abortion. The bill permits abortions to be conducted only upon the advice of a doctor up to 20 weeks of

133 Navtej Singh Johar v. Union of India AIR 2018 SC 4321.; Also see National Legal Services Authority v. Union of India AIR 2014 SC 1863. 134 The Select Committee Report (2020), Supra note 128 para 4.53. 135 The Assisted Reproductive Technology (Regulation) Bill 2020. Available at https://prsindia.org/ files/Bills_acts/Bills_parliament/Assisted%20Reproductive%20Technology%20Bill,%202020.pdf. 136 Tandon (2020), After surrogacy, Cabinet clears Bill to regulate IVF’, February 19, 2020, The Tribune India. Available at https://www.tribuneindia.com/news/nation/after-surrogacy-cabinetclears-bill-to-regulate-ivf-44199. Accessed on June 3, 2021.

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pregnancy and two doctors in case the pregnancy has completed 24 weeks.137 Both these bills have been approved by the Union Cabinet and have also been presented before the Rajya Sabha.

3.13.1 Features of the Surrogacy (Regulation) Bill, 2020 The Surrogacy (Regulation) Bill, 2020 has VIII chapters and 52 sections. It defines ‘surrogacy’ as ‘a means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.’138 Further the bill clarifies that surrogacy according to this legislation shall only mean gestational and not traditional. While the Surrogacy (Regulation) Bill, 2020 has tried to incorporate much of the recommendations of the Standing Committee Reports of Surrogacy (Regulation), 2016 and 2019 bills, some of the important provisions of the bill can be understood as under: (i) Nature of Surrogacy Arrangement The nature of surrogacy arrangement permissible under the bill is only altruistic. However, the present bill has amended the definition of altruistic surrogacy by including the recommendations of the parliamentary and Standing Committee Reports on the 2016 and 2019 bill with respect to ensuring adequate compensation to the surrogate mother in lieu of her magnanimous gesture toward the intending couple. Since the above two proposed legislations did not take into account aspects such as potential loss of income, mental and psychological toll of pregnancy, the 2020 bill by adding the term ‘and such other prescribed expenses’ tries to cure the deficiency. The new provision reads as under: Altruistic surrogacy’ means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative.139

137

The Medical Termination of Pregnancy (Amendment) Bill, 2020. Available at https://prsindia. org/files/Bills_acts/Bills_parliament/The%20Medical%20Termination%20of%20Pregnancy%20 (Amendment)%20Bill,%202020.pdf. 138 The Surrogacy (Regulation) Bill 2020,s,2(zd).Available at https://prsindia.org/files/Bills_acts/ Bills_parliament/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf. 139 Id., s. 2(b).

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(ii) Who can be a Surrogate and who can opt for Surrogacy? Taking note of the reservations expressed by the both committee reports about only close relatives being allowed to become surrogates might lead to having adverse implications in family ties, the concerns of the committee have been addressed by the current bill by allowing ‘any willing woman’ to volunteer for becoming surrogate mother to intending couple or the intending woman provided they must approach the appropriate authority with a willing woman agreed to be a surrogate. In the bill, it has also been specifically provided that no woman other than a married woman having a child of her own shall act as a surrogate mother by providing her own gametes. The surrogate shall be between 25 and 35 years of age and can only act once as a surrogate in her entire lifetime, and she would also need to acquire a certificate of medical and psychological fitness for this purpose from a registered medical practitioner.Further, the bill requires the surrogate to be in possession of eligibility certificate issued by appropriate authority on the fulfillment of the above-mentioned conditions.140 As to who can Commission a surrogacy arrangement, the present bill provides the facility of availing surrogacy services for not just Indian heterosexual married couple, but it also allows an ‘intending woman’ the liberty to do so. An intending woman has been defined by the bill as ‘an Indian woman who is a widow or divorcee between the age of 35–45 years and who intends to avail the surrogacy.’141 Thus, the recommendations of both the committee reports were heeded to, and single women have been given the opportunity to become parents via surrogacy. So far commissioning couple is concerned, the Surrogacy Bill, 2020 makes it mandatory for the intending couple to possess a certificate of eligibility issued by the appropriate authority on the basis of following criteria; the bill requires the intending couple to be married and must be between the age of 23 and 50 years in case of female and between 26 and 55 years in case of male on the day of certification; the intending couple have not had any child biologically or through adoption or through surrogacy earlier with the exception that the existing child of the intending couple is mentally or physically challenged or suffers from life-threatening disorder or fatal illness with no permanent cure and which illness is approved by the appropriate authority along with a medical certificate from a District Medical Board, with such other conditions as may be specified by the regulations.142 In addition to this, the bill also requires the intending couple to procure a certificate of essentiality issued by the appropriate authority after getting issued a certificate of medical indication necessitating gestational surrogacy from the District Medical Board along with an order concerning the parentage and custody of the child passed by the Court of the Magistrate of the first class or above, on an application made by the intending couple and surrogate mother and which order shall be treated as a birth affidavit of the child born. Further, the bill requires 140

Id., s. 4(iii)(b) I-IV. Id., s. 2(s). 142 Id., s. 4(iii)(c)(I) to (IV). 141

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the intending couple to execute insurance coverage for a period of thirty-six months covering postpartum delivery complications in favor of the surrogate mother by an insurance company or an insurance agent recognized by Insurance Regulatory Development Authority (IRDA).143 It is worth noticing, while earlier bills mandated that no surrogacy procedure could be performed, availed or undertaken except when the couple was proven infertile, the 2020 bill vide Section 4(ii)(a) provides that the surrogacy cannot be undertaken, performed or availed except when the intending couple has a ‘medical indication necessitating gestational surrogacy,’ and further it provides the couple of Indian origin or the intending woman who wish to opt for surrogacy, must apply and obtain a certificate of recommendation from the board in the manner prescribed. Also, the present bill also gives opportunities to PIOs/NRIs/OCIs to avail of the facility in India which was previously only available to Indian citizens. (iii) Enforceability of Surrogacy Arrangements The current bill does not contain any provision regarding the necessity of having a contract citing legal aspects. However, at the time of releasing the draft, some of the stakeholders put forward the view that since the intent of the bill is to protect the surrogate mothers and children, therefore it must provide a legal framework for a comprehensive surrogacy agreement containing all safeguards clearly spelling out the rights and duties of each party. In fact the select committee also advocated for a Tripartite Surrogacy Agreement among the intending parents, the surrogate mother and the authority in order to protect the interest of the surrogate mother and the surrogate child. (iv) Legal Parenthood/Nationality of the Child The bill lays down that the intended couple or the intending woman as the case may be, shall be considered as biological parents of the child and the child shall enjoy all the rights and privileges as are available to a child born naturally.144 Thus, it is inherent in the bill that the nationality of the intended parents or the intended woman shall be nationality of the surrogate child. (v) Prohibition of Sex Selection The current bill strictly prohibits sex selection. It clearly provides that no surrogacy clinic, registered medical practitioner, gynecologist, pediatrician, embryologist, intending couple or any other person can either conduct or cause to conduct the process of sex selection for surrogacy.145 Any person found doing the same has been proposed to be made liable for punishment in the form of imprisonment for up to 10 years and a fine up to Rs. 10 lakhs.146

143

Id., s. 4(iii)(a)(I) to (III). Id. s. 8. 145 Id. s. 3(viii). 146 Id. s. 36(1)(g). 144

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(vi) Rights and Obligations of the Parties involved • The 2020 bill puts a mandate on the intending couple to execute an insurance coverage for a period of thirty-six months covering postpartum delivery complications in favor of the surrogate mother by an insurance company or an insurance agent recognized by Insurance Regulatory Development Authority (IRDA.147 It also lays down that abortion of a surrogate child would require the consent of the surrogate mother and authorization from the appropriate authority in compliance with the provisions of the Medical Termination of Pregnancy Act, 1971.148 Further under the bill the surrogate mother has the option for opting out and thus withdraw her consent for the procedure before the embryo is implanted in her womb149 and no surrogacy procedures can be conducted without explaining to the surrogate mother all the possible side effects and the after effects caused by the procedure and without after taking her informed consent in writing in a language she understands.150 The bill further vide Section 38 prohibits the intending couple or intending woman or any person from undergoing or conducting commercial surrogacy in place of altruistic surrogacy by providing punishment of imprisonment up to five years and with fine up to five lakh rupees for the first offense and for any subsequent offense imprisonment up to ten years and with fine which may extend to ten lakh rupees. • The bill mandates that the child born via surrogacy shall not be abandoned by the intending couple or the intending woman in any condition or for any reason whatsoever even if the child suffers from any genetic defect, birth defect or any medical condition or any condition developed subsequently or due to the sex of the child or due to multiple children being born out of the procedure.151 Doing so would attract a penalty of up to Rs 10 lakhs and an imprisonment term of up to 10 years.152 To protect the interest of the child, the bill contains a provision concerning the parentage and custody of the child born through surrogacy. The intending couple would have to possess a certificate of essentiality issued by the appropriate authority after which an order concerning the parentage and custody of the child will have to passed by the Court of Magistrate of first class or above on an application made by the intending couple or the intending woman and the surrogate mother, and the same shall be treated as a birth affidavit of the child born.153 147

Id, s. 4 (iii) (a) (III). Id. s. 3 (vi). 149 Id. s. 6 (2). 150 Id. s. 6 (1). 151 Id., s. 7. 152 Id., s. 36 (1) (c). 153 Id., s. 4 (iii) (a) (II). 148

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• The bill also mandates the appropriate authority to maintain the records pertaining to the registration of surrogacy clinics, cancelation and renewal of registrations, grant of certificates to the intending couple and surrogate mothers or any other matter pertaining to grant of license, etc., and also requires the appropriate authority to submit the same to the National Surrogacy Board.154 (vii) Establishment of Appropriate Authority The bill mandates the setting up of appropriate authority by the Central Government for Union Territories and State Governments for their respective States within 90 days of commencement of this act and which appropriate authority shall consist of • “An officer of or above the rank of Joint Secretary of Health and Family Welfare Department who shall act as the ex-officio chairperson • An officer of or above the rank of Director of Health and Family Welfare Department who shall act as the ex- officio Vice-chairperson • An eminent woman representing women’s organization • An Officer of the Law Department of the State or Union Territory not below the rank of Deputy Secretary • An eminent registered medical practitioner.155 The same provision also mandates to fill within a month any vacancy occurring in the board from the date of occurrence. Further, the appropriate authority shall discharge the following functions: • granting, suspending or canceling the registration of a surrogacy clinic; • enforcing standards to be fulfilled by Surrogacy clinics; • investigation of complaints of breach of the provisions of the Act, rules and regulations under the Act; • taking appropriate legal actions against the use of surrogacy by any person other than prescribed under the Act; • supervision of implementation of the provisions of the Act; • providing recommendations to the Board and State Boards about the modifications required with respect to changing technology and social conditions and taking action after investigation of complaints received against surrogacy clinics.”156 Under the Bill, the appropriate authority shall also exercise powers with respect to summoning of persons who are in the knowledge of any information related to violation of provisions of the Act or the rules and production of any document or material related to it; the search of any place which is suspected to be violating the

154

Id., s. 35(2). Id., s. 33. 156 Id., s. 34. 155

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provisions made under the Act.157 Lastly, the authority is mandated to maintain the details of the registration of surrogacy clinics, their cancellation if any, renewal of registration, grant of certificates to the intending couple and intending women and surrogate mothers. These records should be duly submitted to the National Surrogacy Boards.158 (viii) Establishment of National and State Surrogacy Boards • National Surrogacy Board The current bill provides for the establishment of the National Surrogacy Board by the Central Government with the following members • “Minister in-charge of Ministry of Health and Family Welfare shall act as the ex-officio Chairperson • Secretary to the Government of India in- charge of the Department dealing with surrogacy matters shall act as Ex-officio Vice Chairperson • Three women Members of Parliament out of whom 2 are from Lok Sabha and one from the Rajya Sabha shall be the ex officio members. • Three members of the Ministries of Central Government in charge of Women and Child Development, Legislative Department in the Ministry of Law and Justice and the Ministry of Home Affairs who are not below the rank of Joint Secretary, shall be ex officio members. • The Director General of Health Services of the Central Government, shall be ex-officio member, • Ten expert Members appointed by the Central Government and two each from amongst eminent medical geneticists or embryologists, eminent gynecologists and obstetricians, eminent social scientists, representatives of women welfare organizations and representatives from civil society working on women’s health and child issues. • Four Chairpersons of the State Boards to be nominated by the Central Government by rotation to represent the States and the Union territories, two in the alphabetical order and two in the reverse alphabetical order shall also be an ex-officio member. • An officer, not below the rank of a Joint Secretary to the Central Government, in charge of Surrogacy Division in the Ministry of Health and Family Welfare, who shall be the Member-Secretary.’159 Any vacancy occurring in the board shall be filled by the Central Government within a period of one month from the date of occurrence of such vacancy and the member appointed shall hold the office for the remainder of the term left.160 Further, the board shall discharge the following functions:

157

Id., s. 35 (1). Supra note 154. 159 Id., s. 15. 160 Id. s. 16(2). 158

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• Advising the Central Government on policy matters relating to surrogacy • Reviewing and monitoring the implementation of the act, rules and regulations under the act and recommending the Central Government, to make changes in it • Laying down a code of conduct for persons working in surrogacy clinics • Setting minimum standards of physical infrastructure, laboratory and diagnostic equipment and expert manpower to be employed by the surrogacy clinics • Overseeing the performance of various bodies constituted under the act and taking appropriate steps for ensuring appropriate performance by them. • Supervision of State Surrogacy Boards, etc.”161 • State Surrogacy Board The composition of State Surrogacy Boards is similar to the National Surrogacy Boards, and the members of the State Board are their counterparts at the State level.162 The functions to be undertaken by the State Surrogacy Boards include reviewing the activities of the appropriate authorities functioning in the State or Union Territory and recommend appropriate action against them, sending consolidated reports of various activities undertaken in the State under the act, to the board and the Central Government, etc.163 (ix) Offenses and Penalties The bill stipulates a punishment of up to 10 years of imprisonment and up to Rs 10 lakh rupees of fine for any person, organization, surrogacy clinic, laboratory or clinical establishment advertising or undertaking commercial surrogacy, selling or importing human embryos for surrogacy, exploiting the surrogating mother or the surrogate child, disowning the child and sex selection. The bill further prohibits the intending couple or intending woman or any person from undergoing or conducting commercial surrogacy in place of altruistic surrogacy by providing punishment of imprisonment up to five years and with fine up to five lakh rupees for the first offense and for any subsequent offense imprisonment up to ten years and with fine which may extend to ten lakh rupees.164 It is pertinent to mention here that unlike the Surrogacy (Regulation) Bills of 2016, 2019, the Surrogacy (Regulation) Bill, 2020 contains a provision of appeal by the intended couple or the intending woman against the rejection of their certificates under Section 4. The said bill also provides an opportunity of appeal to the surrogacy clinic against an order of rejection/suspension/cancellation of registration of their application by the appropriate authority, under Section 13, within a period of thirty days from the date of communication of the impugned order.165

161

Id. s. 23. Id. s. 25. 163 Id. s. 24. 164 Id. s. 36(1)(a-g)&(2). Also see s., 38. 165 Id., s. 14(1). 162

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3.13.2 Drawbacks of the Surrogacy (Regulation) Bill, 2020 Though the 2020 bill has tried to incorporate much of the recommendations of the Standing Committee Reports of 2016 and 2019, the endeavor to address the previously held reservations of the stakeholders is apparent. However, a few flaws still remain and which can be seen as under: • The bill defines altruistic surrogacy and mandates intending couples to provide medical expenses, insurance coverage and ‘other such prescribed expenses’ to the surrogate mother, and the term ‘other such prescribes expenses’ leaves plenty of room for interpretation and can lead to a lot of confusion and consequent litigation. One has to bear in mind that since the bill also allows ‘willing woman’ a lot of volunteers for acting as surrogate mothers hailing from the backward sections of the society who do not have the adequate resources, may also volunteer to surrogates. It may lead to exploitation of poor surrogates, the same purpose for which the regulatory framework is being enacted. Further, if the surrogate mother is a close relative or genetically related to the intending couples, a vague provision like this might lead to internal family feuds and obliterate familial ties. • The bill, while incorporates single women between the age of 35 and 45 years who are either widows or divorcees into the surrogacy fold, neglects a huge chunk of the society by leaving out single unmarried women, single unmarried men, gays, lesbians, transgenders and unmarried hetrosexuals couples. Leaving out singles unmarried men and women, unmarried hetrosexuals may amount violation of Article 14 of the Constitution, i.e., the right to equality. It is also a violation of right to reproductive autonomy granted under Article 21 of the Constitution. • The bill does not seem to be in consonance with the recent judgments pronounced the Supreme Court of India with respect to right to life and privacy of transgenders and homosexuals and the right to privacy as part of right to life and personal liberty in general. The Apex Court in K.S. Puttaswamy v. Union of India166 while holding right to privacy as a part of right to life and personal liberty enshrined under Article 21 of the Indian Constitution held that the right to privacy also entail ‘Decisional Privacy’ which is the right to make intimate personal decisions of like such as sexual and reproductive decisions. Since this bill also ignores transgenders and homosexuals, it becomes pertinent to mention the judgments pronounced by the Supreme Court in National Legal Services Authority (NALSA)167 and Navtej Singh Johar168, respectively. In NALSA, the right of all persons to self-identify their gender was upheld by the Supreme Court by upholding the right of transgenders to legally identify themselves as

166

2017 10 SCC 1. National Legal Services Authority v. Union of India AIR 2014 SC 1863. 168 Navtej Singh Johar v. Union of India AIR 2018 SC 4321. 167

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‘third gender.’ Further, it was held by the Court that transgenders were entitled to the fundamental rights provided under Articles 14, 15, 16, 19(1)(a) and 21 and directed the government to make legal provisions for recognition of ‘third gender’ in all documents along with taking steps for framing laws and policies for their social welfare. In Navtej, the issue for consideration before the Supreme Court was whether Section 377 of the IPC criminalizing consensual sexual intercourse between persons of the same sex is Constitutional or not. The Court held it to be contrary to Article 14 of the Constitution on the ground of unequal treatment of the LGBTQ community as well as violative of human dignity, decisional autonomy and the fundamental right to privacy. However, in addition to above mentioned glaring loopholes, the current pending Bill also seems to lack many other safeguards with respect to the surrogate mother, intended parents and children born out of such arrangements which the author shall be dealing elaborately in the next chapter Titled “Surrogacy Arrangements: The Stake Holders Perspectives”.

3.14

Judicial Approach in India Toward Cross-Border Surrogacy Cases

As already stated above, due to the unenforceable nature of National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005 promulgated by the Ministry of Health and Family Welfare, Government of India and the Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences as well as lack of adequate legal framework for the ever-growing market of commercial surrogacy in India, the Indian Courts, including the Supreme Court of India have witnessed a host of issues related to parenthood and nationality in cross-border surrogacy cases.169 The major challenge for the Courts, faced with international surrogacy cases, was to ensure the welfare and best interests of the child by liberalizing interpretation in order to safeguard the interests of children. Some of the important cases may be discussed here under: • Baby Manji Yamada v. Union of India.170 In this case, a baby called Manji was born to an Indian surrogate mother and to commissioning parents belonging to Japan. The Japanese couple had used the husband’s (Mr. Yamada’s) sperm and an Indian donated egg to create the embryo. The baby hung in legal limbo when her biological parents (the Japanese couple) got divorced, and the wife was not ready to accept the child and even the surrogate 169

Jan Balaz v. Anand Municipality and Ors, AIR 2010 Guj 21; Union of India & ANR v. Jan Balaz and others, Special Leave to Appeal (Civil) No.31639, Supreme Court of India, 2009; and Baby Manji Yamada v. Union of India, (2008) 13 SCC 518. 170 Baby Manji, supra note 27.

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mother too abandoned the child. Japanese authorities told Mr. Yamada that he would be able to bring Manji to Japan only by adopting Manji pursuant to both Japanese and Indian Laws. The father could not adopt the child as under the Indian Law, a single father cannot adopt. During all this, a petition came to be filed before the Rajasthan High Court by ‘Satya,’ a NGO praying for preventing Manji from being taken out of India. A challenge was laid to the commercial surrogacy, and it accused the clinic of illegal infant trade where Manji was born. The petitioner alleged and argued that since there was no legislation on surrogacy in India, therefore, as such, nobody could claim parenthood over Manji, including Mr. Yamada. The Rajasthan High Court required Manji to be brought to them within four weeks. In response, Mr. Yamada’s mother filed a writ petition on Manji’s behalf before the Supreme Court of India.171 The Supreme Court granted temporary custody of Manji to Mr. Yamada and in an order dated September 29, 2008, while disposing of the case, it stated that the Commission formed under the Protection of Children Right Act, 2005 was the appropriate authority to hear the complaints of the type made by Satya and on that basis the Supreme Court disposed of Satya’s proceedings pending before the Rajasthan High Court.172 On the issue of commercial surrogacy, while validating the same a pertinent observation was made by the Court saying saying ‘Commercial surrogacy is legal in several countries including India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms ‘wombs for rent’, ‘outsourced pregnancies’ or ‘baby farms’.’173 Post the judgment of the Supreme Court, Baby Manji was provided with a certificate of identity by the Jaipur Passport Office as a special dispensation along with a one-year visa on humanitarian grounds, by the Japanese embassy in India which later resulted in Baby Manji traveling to Japan with her grandmother on November 2, 2008.174 However, this still did not resolve the question of her nationality and the law remained unclear as to whether a child born to an Indian surrogate is a citizen of India or not, though the case was successful enough to receive national and international media attention and bringing to light various issues relating to cross-border surrogacy contracts in the lack of any regulation governing the same. • Jan Balaz v. Anand Municipality175 The question of statelessness of a child born through surrogacy again came to the forefront in the Jan Balaz case where a German couple commissioned a surrogacy

171

Smerdon (2008). Baby Manji, supra note 27. Para 13. 173 Id at para 9. 174 Smerdon U, supra note 171. 175 Jan Balaz v. Anand Municipality, No. 3020, Special Civil Application (Gujarat High Court, November 11, 2009.). 172

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in India by using Mr. Balaz’s sperm and a donated egg. Consequently, in 2008, twins named Leonard and Nikolas were born in India. However, they had to remain in India for two years due to their statelessness. While the twins came to be originally registered and issued with Indian birth certificates with Balaz’s as their parents, litigation ensued when the German authorities refused to grant recognition to the birth certificates for granting German nationality due to surrogacy being illegal and punishable in Germany.176 The German couple had to resort to the Court to obtain Indian passports for their twins. Since, the twins lacked an ‘Indian parent,’ a lower Court refused to recognize them as Indian. The authority that had issued the birth certificates then recalled them and replaced Mrs. Balaz with the Indian gestational surrogate as the children’s ‘mother,’ while Mr. Balaz remained identified as the ‘father’ and subsequently two Indian passports were issued for the twins.177 However, the Ministry of External Affairs vide its letter dated 6.05.2008 asked for the surrender of the passport till the time the petition remained pending before the High Court.178 While Balaz surrendered the passport, nevertheless he filed a petition before the Gujarat High Court alleging violation of Article 21 of the Constitution of India, 1950 and prayed for getting back the passport enabling him to take back the twins to Germany.179 The petition was resisted by the authorities asserting that as per Section 3 of Citizenship Act, 1955, a child born as a result of a surrogacy procedure cannot be treated as an Indian citizen, and as such, the surrogate mother cannot be treated as the mother of the twins. Thus, the twins, as a result, cannot apply for an Indian passports. Balaz argued that since the twins were born to an Indian mother, be it surrogate, the children were Indian citizens under Section 3 of the Citizenship Act, 1955.180 It was also pointed out that since Germany did not legally recognize surrogacy, the children would not be granted German citizenship.181 While acknowledging the unprecedented peculiar facts of the case and the fact that the citizenship issue was a momentous question, the High Court, while observing that the rights of the babies was of prime concern, held: “Surrogate mother is not the genetic mother or biologically related to the baby, but, is she merely a host of an embryo or a gestational carrier? What is the status of the ova (egg) donor, which in this case is an Indian national but anonymous. Is the ova donor the real mother or the gestational surrogate? Are the babies motherless, can we brand them as legal orphans or stateless babies? So many ethical and legal questions have come up for consideration in this case for which there are no clear answers, so far, at least, in this country. True, babies conceived through surrogacy, encounter a lot of legal complications

176

Times of India (2010). Jan Balaz, Supra note 175. 178 Ibid. 179 Murari (2009). 180 The Citizenship Act, 1955 s. 3(1)(c)(ii) provides: ‘except as provided in sub-section (2), every person born in India, (c)on or after the commencement of the citizenship (amendment act, 2003 … (ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth.’ 181 Jan Balaz, Supra note 175. 177

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on parentage issues, this case reveals. Legitimacy of the babies is therefore a live issue. Can we brand them as illegitimate babies disowned by the world?”182

In the entire proceedings, the High Court emphasized on a comprehensive legislative framework needed to be enacted in order to define and protect the rights of the parties involved in surrogacy. In absence of there being any legislation on the subject, the Court was inclined to consider the surrogate mother rather than the egg donor or the intended mother, as the natural mother of the child by stating thus183: “Resultantly, the only conclusion that is possible is that a gestational mother who has blood relations with the child more deserves to be called as the natural mother. She has carried the embryo for [the] full 10 months in her womb, nurtured the babies through the umbilical cord. Even if we assume the egg donor is the real natural mother, even then she is an Indian national so revealed before the learned single judge, we are told. Both the egg donor as well as the gestational surrogate are Indian Nationals, and hence the babies are born to an Indian National.”184

Finally, while relying upon Section 3(1)(c)(ii) of the Citizenship Act, 1955, the High Court ruled that the twin children so born were Indian citizens by birth and were entitled to Indian passports and that any denial to this would be contrary to Article 21 of the Indian Constitution, and, therefore, it directed for the release of their passports. Despite the above decision, the passport authorities did not comply with the directions and refused to release the passports until consultation with the Union Home Ministry.185 A contempt petition was filed by Balaz. Upon notice being issued, the Central Government approached the Supreme Court challenging the judgment of the High Court. It contended before the Supreme Court that the surrogate mother could not have been held to be the mother of the twins since as per the recommendations of the Law Commission Report, the birth certificate of the child/children would only contain the name of the commissioning couple/intended parents; that the surrogacy contracts be upheld by the parties in case of absence of legislation186; and lastly that in view of the specific clauses in the surrogacy contract could the surrogate mother claim any parental right over the child.187 The SLP so filed was admitted by the Apex Court and was converted into Civil Appeal No. 8714/ 2010 for a decision on the legal issues. The Court urged the Indian authorities for non-judicial avenues and also suggested adoption as a solution. A one-time exemption for Balaz and Lohole was suggested to the Central Adoption Resource Agency (CARA) by the Apex Court so that they could adopt the twins. Though CARA agreed to issue a no-objection certificate regarding the same,

182

Id. at para 9. Id., at Para 14, 19–21. 184 Id., at para 16. 185 Times of India (2009). 186 Union Of India & Anr. v. Jan Balaz and Others, Civil Appeal No. 8714/2010 (Order dated November 25, 2009). 187 Ibid. 183

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it stated that this exemption would not be treated as a precedent in future. Finally, in May 2010, more than after two years of the birth of the twins, they were allowed to be adopted and Germany granted the twins the necessary travel documents to travel to Germany. Final adjudication of the appeal is still pending before the Supreme Court.188 Thus, neither of the above two cases provided the Courts with an instructive framework for resolving future cases. In the absence of any regulations or case precedent, it is unclear as to how in future, the Courts in India would address cases of stateless surrogate children. • Jayashree Wad v. Union of India189 India’s surrogacy market by October 2015 generated between $500 million and $2.3 Billion annually with India easily being the world leader.190 Also, cities like Anand in Gujarat had become world surrogacy hubs to an extent where foreigners accounted for up to 90% occupancy of the city’s hotels. Foreign nationals accounted for a large majority of cases which led the previous Governments pandering to the market with liberal policies. As surrogacy matters peaked in the country, a Public Interest Litigation (PIL) was filed by advocate Jayashree Wad in 2015 seeking a ban on commercial overseas surrogacy for foreigners in India on the ground of exploitation of poor Indian women as well as asking that the import of embryo as “goods” subject to a no-objection certificate from the ICMR be declared illegal and quashed. The petitioner argued that not only was there no informed consent provided by the surrogates but also, they were exploited along with having to suffer adverse health consequences. At the same time, a new Government was sworn in at the Centre. Internationally, India’s neighbors viz. Cambodia and Nepal, also imposed a ban on surrogacy. On account of this, when the Supreme Court asked the new Government, which was sworn in around the same time, to take a stand on the position, it declared on october 2015 that it did not support commercial surrogacy and would allow only infertile Indian couples to avail of altruistic surrogacy. Infact, the Surrogacy (Regulation) Bill of 2016 was a result of this change of intentions. The Surrogacy Bill 2016 not only banned commercial surrogacy but also restricted the import of human embryos to research purposes only. Even altruistic surrogacy was restricted to needy and infertile couples after multiple checks and balances as has been dealt earlier. Thus, it can be said that this petition by Advocate Wad played a major role in strengthening the need to bring about a regulatory framework for Surrogacy in the country.

188

Id. Jayashree Wad v. Union of India, Writ Petition 95 of 2015. 190 Arathi (2018). 189

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Recent Development

Recently vide the Notification No. 11/2015-2020 dated June 12, 2020, the Government of India, Ministry of Commerce & Industry, Department of Commerce, Directorate General of Foreign Trade Udyog Bhawan, has permitted the import and export of human embryos into India. It is to be noted that several intended parents were unable to import/export their gametes after the Indian government banned the international import and export of embryos in the year 2015 vide Notification No.25/2015-2020 dated October 26, 2015.191 It is also worth noticing here that several foreigners had come down to India for the purpose of taking up surrogacy arrangements, but were unable to take back the embryos when international surrogacy arrangements were banned in 2012 for foreign nationals. This may be a piece of good news to prospective parents who have their embryos stored in India and want to export the same back to their country.192

3.16

Conclusion

As one can witness from the discussion above that how in India, various legislations have been proposed from time to time, in addition to certain notifications/ guidelines, for the purposes of regulating the practice of surrogacy wherein the endeavor has always been to protect the legal and human rights of various stakeholders involved in a surrogacy arrangement for the reason in the absence of any specific law dealing with surrogacy, various complicated social and legal issues affecting the rights and interests of children born from such arrangements were witnessed along with exploitation of surrogate mothers. Resultantly, various guidelines and bills regarding regulation of surrogacy were introduced by the legislature in India with the objective to regulate the practice of surrogacy and to ensure that there is no exploitation of surrogate mothers and children. Unfortunately, however, none of the proposed bill proved to be a water tight legal framework. Nevertheless, these proposed legislations have, however, paved the way toward realizing the dream of becoming parents for some at least. In this context, the author has also put forth certain suggestions qua the Surrogacy (Regulation) Bill, 2020 which is currently awaiting nod by the Parliament, which have been elaborated in the subsequent chapters.

191

The Directorate General of Foreign Trade (2015). Notification no. 25/2015-2020. Available at https://main.icmr.nic.in/sites/default/files/art/Guidelines.pdf. Accessed January 15, 2017. 192 Ministry of Commerce & Industry (2020) Notification No. 11/2015-2020. Available at http:// blog.indiansurrogacylaw.com/wp-content/uploads/2020/10/Noti-11-.pdf. Accessed January 12, 2021.

References

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References Arathi, P. M. (2018). Report of a study to understand the legal rights and challenges of surrogates from Mumbai and Delhi (p. 44). National Human Rights Commission. Centre for Social Development. Aditya, B. (2003). Why adoption is not an option in India: The visibility of infertility, the secrecy of donor insemination, and other cultural complexities. Social Science & Medicine, 56(9), 1870. Centre for Social Research Report. (2010). Surrogate motherhood-ethical or commercial. Available at http://www.womenleadership.in/Csr/SurrogacyReport.pdf. Accessed September 13, 2013. Department Related Parliamentary Committee on Health and Family Welfare. (2017). 102nd report on the surrogacy (regulation) bill, 2016, available at http://164.100.47.5/committee_ web/ReportFile/14/100/102_2018_6_15.pdf. Accessed June 8, 2018 Editorial. (2009). Despite HC order, surrogate kids yet to get passports. Times of India. https:// timesofindia.indiatimes.com/city/ahmedabad/despite-hc-order-surrogate-kids-yet-to-get-passports/ articleshow/5240943.cms. Accessed July 23, 2014 Editorial. (2010). Bar our nationals. European Countries Tell Surrogacy Clinics. The Times of India. Available at https://timesofindia.indiatimes.com/india/bar-our-nationals-europeancountries-tell-surrogacy-clinics/articleshow/6164949.cms. Accessed April 20, 2014 Editorial. (2015), Outsourcing motherhood: India’s reproductive Dysopia. Sunday Hindustan Times, July 26, 2015. Available at https://www.hindustantimes.com/india/outsourcingmotherhood-india-s-reproductive-dystopia/story-iCG1IuJJYMV994Gus2LZuK.html. Accessed October 22, 2018. Hawkins, J. (2013). Selling ART: An empirical assessment of advertising on fertility clinic’s websites. Indian Law Journal, 88, 1147. Indian Council of Medical Research. (2005). National guidelines for accreditation, supervision and regulation of ART clinics in India. Available at https://main.icmr.nic.in/sites/default/files/art/ ART_Pdf.pdf. Accessed June 8, 2014 Law Commission of India. (2009). 228th report on need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy. Available at https://lawcommissionofindia.nic.in/reports/report228.pdf. Accessed June 8, 2018. Ministry of Commerce & Industry. (2020). Notification No. 11/2015-2020. Available at http:// blog.indiansurrogacylaw.com/wp-content/uploads/2020/10/Noti-11-.pdf. Accessed January 12, 2021 Munjal Shankar, D. (2014, January–March). Medical tourism, surrogacy & the legal overtones. The Indian Journal of the Indian Law Institute, 56(1), 62–77. Murari, S. (2009). Children have Right to Surrogate Mother’s Citizenship, says Indian Court. Asian Tribune. http://www.asiantribune.com/news/2009/11/15/children-have-right-surrogatemothers-citizenship-says-indian-Court. Accessed February 20, 2013 Porecha, M. (2011). Surrogates may get respite with bill in the offing: Experts. The Free Press Journal Mumbai. Available at http://www.freepressjournal.in/news/34865-surrogates-may-getrespite-with-Bill-in-the-offing-experts.html. Accessed February 23, 2017. Quadeer, I. (2009). Social and ethical basis of legislation on surrogacy: Need for debate. Indian Journal of Medical Ethics, 6(1), 29. Sarojini, N., Marwah, V., & Shenoi, A. (2011). Globalization of birth markets: Case study of assisted reproductive technologies in India. Journal of Globalization and Health, 7(1), 27. Smerdon, U. (2008). Crossing bodies, crossing borders: International surrogacy between the United States and India. Cumberland Law Review, 39, 15, 22. Tandon, A. (2020). After surrogacy, Cabinet clears Bill to regulate IVF, 19 February 2020. The Tribune India. Available at https://www.tribuneindia.com/news/nation/after-surrogacy-cabinetclears-bill-to-regulate-ivf-44199. Accessed June 3, 2021.

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The Directorate General of Foreign Trade. (2015). Notification No. 25/2015-2020. Available at https://main.icmr.nic.in/sites/default/files/art/Guidelines.pdf. Accessed January 15, 2017. The Ministry of Home Affairs. (2012). New Visa Regulations for People Seeking Surrogacy issued on 9th July 2012. Available at https://www.mha.gov.in/PDF_Other/surrogacy03112015.pdf. Accessed February 20, 2016. The Ministry of Home Affairs. (2015). Instructions prohibiting commercial surrogacy in India vide letter dated 4.11.2015. Available at https://main.icmr.nic.in/sites/default/files/art/Document.pdf . Accessed February 20, 2016. The Select Committee Report. (2020). Available at https://prsindia.org/files/Bills_acts/Bills_ parliament/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf. Accessed March 4, 2020.

Cases B.K. Parthasarathi v. State of Andhra Pradesh, AIR 2000 AP 156. Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746. K.S. Puttaswamy v. Union of India 2017 10 SCC 1. National legal Services Authority v. Union of India (2014) 5 SCC 438. Navtej Singh Johar v. Union of India AIR 2018 SC 4321. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. R. Rajagopal v. State of Tamil Nadu AIR 1995 SC 264. Roe v. Wade 410 U.S. 113. Skinner v. Oklahoma 316 U.S. 535 (1941).

Chapter 4

Surrogacy Arrangements: The Stakeholders Perspectives

4.1

From the Perspective of Surrogate Mother Concerns

Surrogate mothers are most vulnerable in any surrogacy arrangement. Often seen in majority of the cases, the surrogate mother is from the most backward strata of the society with low educational levels and from families whose financial conditions are extremely poor. Talking about the developing nations, the poverty, illiteracy and vulnerability of the families put pressure on women to offer their wombs on rent. They are often persuaded to become surrogates by their husbands or middlemen to earn money. They have no autonomy on their bodies and their life. This leaves them vulnerable to exploitation by prosperous intended parents and surrogacy professionals, and therefore, such conditions do not create a level playing field for surrogates’ vis-à-vis intended parents. Therefore, there is an urgent need to frame stringent laws regulating surrogacy which should give women the autonomy over their bodies by giving them the right to act as a surrogate while simultaneously providing a watertight framework protecting their medical and commercial rights.

4.2

Proposed Surrogacy Bills in India Vis-a-Vis Rights of the Surrogate Mother

Commercial surrogacy was made legal in India in the year 2002. Since then, India has become a hub for commercial surrogacy in the world. As discussed in previous chapters, lack of a binding legal framework coupled with availability of women willing to be surrogates in lieu of a meagre compensation had made India an attractive destination for foreign citizens, NRIs/PIOs/OCIs to Commission surrogacy. Indian women from lower income backgrounds were led into surrogacy as a

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 H. Kaur, Laws and Policies on Surrogacy, https://doi.org/10.1007/978-981-16-4349-1_4

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means to earn additional income to support their families and make ends meet.1 Majority of the women who became surrogates were illiterate or with primary education at best and sans any education about surrogacy and its procedures and processes. The commissioning couple, in most cases, did not adhere to the rules and regulations. Moreover, the ICMR guidelines in vogue governing surrogacy agreements in India, while demarcating a maximum age for a surrogate mother to be 45 years, do not lay down a minimum age for them2 which led young and minor girls of age 16–17 years to act as surrogates. These girls were provided with fake documentation to show that they are older than their actual age.3 A study involving surrogate women in Kolkata, India, revealed that most of the women who became surrogates were either unemployed or were engaged in temporary low paying jobs and had basic primary level education. Most of them were married, and even their husbands were mostly uneducated and unemployed.4 The broad reason for all these women becoming surrogates was identical in nature, i.e., the need for money to lead a decent life. According to the 2005 Guidelines, all ART clinics are required to have a counselor to ensure that the patients are informed as to what to expect from the treatment.5 However, most of these women were not completely aware about the procedures involved in surrogacy. A classic example of this given in this study was that of a 27-year-old woman named Rita who revealed that due to her being illiterate she was unable to understand the medical aspects of surrogacy and neither did she understand English. As a result, she was unable to comprehend the surrogacy agreement and had to do whatever was told to her.6 In another case, a 28-year-old Rina who was pregnant as a surrogate mother during the study being conducted complained of being in tremendous pain during her pregnancy as a surrogate which she had not felt when she was having her own children.7 Therefore, it is clear that these women were just not able to understand as to what was written in their surrogacy agreements and were also unable to understand the medical complications involved. Another research study published in 2013 shed light on the approach taken by couples while selecting a surrogate. It revealed a couple of ways in which surrogates could be found. The first approach was where clinics hired agents to find women willing to be surrogate mothers, and the second approach was in family owned nursing homes that worked as IVF centers to highly sophisticated third party

1

Jargilo (2016) Indian Council of Medical Research (2005), National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (hereinafter referred to as ICMR Guidelines) at para 3.10.5. Available at https://main.icmr.nic.in/sites/default/files/art/ART_Pdf.pdf. Accessed June 8, 2014. 3 Jargilo, Supra,note 1. 4 Id. 5 ICMR Guidelines, Supra note 2 at 1.5.4. 6 Mukherjee (2016). 7 Ibid. 2

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agencies which provided hostels to surrogate mothers to live in.8 The study revealed that a parallel industry had been set up by the IVF industry which involved the sale or hire of bodies or wombs for rent in the name of social development.9 These clinics practice cost cutting on the amount that they pay to the surrogate mother and provide no postnatal care since there is no financial incentive involved for them. It is clear from the above examples that a regulatory mechanism needs to be put in place to stop the exploitation of poor surrogates. As mentioned earlier, the present regulations governing surrogacy in the country are the ICMR guidelines which are non-binding in nature and do not have the force of law which provides ample room to ART/surrogacy clinics, agents and intended parents to forego their responsibilities and exploit poor surrogates. It is for this reason that a legally binding legislation setting out the rights of the surrogate mother and the duties of the intended parents as well as surrogacy clinics is required. In light of this, the Surrogacy (Regulation) Bill 2016 was the first proposed legislation that pertained only to surrogacy and no other procedures of ART while the previously proposed legislations in the year 2008, 2010 and 2014 were concerned with all the procedures of ART.10

4.2.1

The Surrogacy (Regulation) Bill 2016

One of the objectives mentioned in the 2016 Bill was the prevention of surrogate mothers from exploitation and unethical practices, and therefore, with a view to achieve the same, the Surrogacy (Regulation) Bill 2016 prohibited commercial surrogacy, and while permitting altruistic surrogacy, it put a mandate on part of the intending couple to execute an insurance coverage in favor of the surrogate mother by an insurance company or an insurance agent recognized by Insurance Regulatory Development Authority (IRDA).11 The bill also contained provisions which mandated explaining to the surrogate mother, all known side effects and after effects of surrogacy procedures and required her written informed consent in a language which she understands prior to her undergoing the procedure.12 Further, the bill laid down that the surrogate mother could not be forced by any person, organization, surrogacy clinic, laboratory or clinical establishment to abort at any stage during the pregnancy. If such a situation were to arise, then the bill provided that a written consent of the surrogate mother and an authorization by the

8

Deepa (2013). Ibid. 10 The Assisted Reproductive Technology Bill, 2010 and 2014. 11 The Surrogacy (Regulation) Bill 2016,s. 4(iii) (a)(III). Available at https://prsindia.org/files/ Bills_acts/Bills_parliament/Surrogacy%20(Regulation)%20Bill,%202016.pdf. 12 Id., s. 6. 9

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appropriate authority would be required in compliance with the Medical Termination of Pregnancy Act, 1971.13 The exploitation of the surrogate mother was made punishable with imprisonment of not less than ten years along with a fine that may extend up to rupees ten lakh.14

4.2.2

102nd Report of the Parliamentary Standing Committee on the Surrogacy (Regulation) Bill 2016

However, the Standing Committee in its 102nd Report (2017) found the provisions of the bill as half-baked when it came to prevention of exploitation of surrogates and accordingly gave certain recommendations regarding the same. The committee accepted that surrogate mothers mostly hailed from a poor economic background and got involved in it for economic benefits and got exploited in the process. Since they were poor, they were not capable of exercising autonomy, and therefore, it was out of necessity that they got engaged in surrogacy. It was observed that the current model of surrogacy lacking a regulatory mechanism and legal protection could exploit surrogate women and the same could be corrected by setting robust legislative norms and proper regulatory oversight. The committee in its interactions with surrogate mothers learnt that most of them engaged in it for economic purposes.15 In view of the above observations on the plight of surrogate mothers, the committee recommended the following: 1. On the issue regarding payment of expenses being limited to only medical and insurance coverage during the period of pregnancy and thereby leaving no scope for the any other reasonable expenses, it was observed that these were not the only expenses incurred by a surrogate during the process of pregnancy but also involves other invaluable things such as loss of health, absence from regular work, absence of family members and especially distance from their own children which could not be measured in monetary terms. As such, it was recommended that the surrogate be sufficiently compensated for the services rendered by her which should be fixed keeping in mind the aforementioned circumstances and be proportionate to her loss of income as a result of the surrogacy procedure and which should also cover other ancillary activities such as medical screening, counseling of not just the surrogate but also of her children, nutritional and dietary supplements of the surrogate, pre and postdelivery

13

Id. s. 3 (vi). Id s. 35(1) (d) & s.35(2). 15 Department Related Parliamentary Standing Committee on Health and Family Welfare(2017), 102ND Report on the Surrogacy Regulation Bill, 2016, para 5.17. Available at http://164.100.47.5/ committee_web/ReportFile/14/100/102_2018_6_15.pdf. Accessed June 8, 2018. 14

4.2 Proposed Surrogacy Bills in India Vis-a-Vis Rights …

2.

3.

4.

5.

16

care, etc. A compensation to the kin in case of the death of surrogate as a result of surrogacy procedure was also recommended by the committee.16 It was further observed that the existence of a private contract model across the country that relied on the bargaining power of the parties had made the procedure of surrogacy an exploitative process for the surrogate since a high majority of surrogates came from weak, educational and financial backgrounds and therefore incapable to resort to a sound legal representative. In this view of the matter, the committee recommended for fixation of the quantum of compensation by relevant authorities rather than being a matter of bargaining power between the parties. Further, it was recommended by the committee that the compensation for the procedure should start at the first day of medication or when any procedure related to surrogacy takes place and that the said compensation should be directly transferred into the bank account of the surrogate.17 Another pertinent observation by the committee was the fact that due to most of the surrogates being illiterate and uneducated, they remain unaware of the side effects of the entire procedure of surrogacy and also were not all well-versed with the terms of the surrogacy contract which made them quite vulnerable, and as such, their consent was not actually informed consent. In the light of this, the committee first recommended for laying out an elaborate mechanism to obtain the consent of the surrogate, and secondly, the consent of the surrogate’s husband should also be taken. Thirdly, the committee recommended that there should be an option provided to the surrogate to opt out of surrogacy at any time prior to the start of the procedure.18 The committee agreed with the provision provided under the bill which restricted women to become surrogates more than once since it did not want to encourage surrogacy to become a profession. While concurring with the views of the National Commission for Women, it advocated for education and vocational training of these women to empower them financially. It also remarked that surrogacy was a way to come out of poverty for these women who hailed from the lowest strata of society and it simply could not deny them one opportunity against it. Thus, it rejected the argument to completely ban commercial surrogacy.19 It was recommended that since the surrogate/birth mother and the intended mother are involved in child birth and child rearing, respectively, both of them should be provided with maternity benefits and also continuity of their services for the benefit of the child.20

Id., Id., 18 Id., 19 Id., 20 Id., 17

129

para para para para para

5.24. 5.25. 5.121&5.122. 5.26. 5.62.

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6. After analyzing the definition of Intending Couple under Clause 2(r) of the bill which provided an ‘intending couple’ means ‘a couple who have been medically certified to be an infertile couple and who intend to become parents through surrogacy’,21 the committee recommended that the term ‘legal’ be added before the words ‘parents through surrogacy’ since it will have a binding effect over the commissioning couple/intending parents and the scope of exploitation of surrogate and surrogate child would be lessened as the former can then be held legally accountable.22 7. On the provision pertaining to allowing only a close relative of the commissioning couple to act as a surrogate, the committee thought it was not pragmatic to do so considering the social, ethical and emotional dynamics of Indian families. It was felt that doing so would be contrary to the objectives of the bill as it would lead to further exploitation of women in Indian families. Therefore, it was recommended that the appropriate modifications be made to Clause 4 (iii) (b) (II) along with other related clauses and freedom should be provided to commissioning couple to choose either a related or an unrelated woman to act as a surrogate mother to their baby.23 8. Lastly, the committee observed that a merely obtaining a parentage order from a First-Class Magistrate to obtain the custody of the child born from surrogacy should not be sufficient and therefore, recommended incorporation in the bill as well as in the surrogacy agreement of proper legal framework for the protection of surrogate and the child along with necessary compensation for the surrogate, mandatory insurance coverage, nourishment during the delivery as well as the postdelivery care, legal medical and psychological counseling and a comprehensive health care for a period of five years starting from the date any medication for surrogacy procedure is begun. It was further recommended that the surrogacy agreement be made available in a language which the surrogate understands or a representative be made available to her who can explain to her in case she is unable to read or write in any language. Further, it recommended that the surrogacy agreement should be registered before the Registrar where the surrogate mother resides or where the intending parents reside or where the agreement is executed and which will act as bedrock of the surrogacy arrangement and shall have a legal binding effect on all the parties involved in surrogacy and will also solidify the rights and duties of both the participants. Therefore, the committee recommended that an agreement of surrogacy amongst all the stakeholders of the facility, i.e., the intending parents, surrogate mother and the surrogacy clinic should be made as a mandatory document for the surrogacy arrangement for them and suggested that necessary amendments/ alternate clauses may accordingly be incorporated in the bill.24 It is pertinent to

21

The Surrogacy (Regulation) Bill 2016, Supra note11, s. 2 (r). Department Related, supra note 15, para 5.67. 23 Id., para 5.83. 24 Id., para 6.6. 22

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note here that even The ART Bill 2014 also provided for all the consent forms and agreements to be in local language thereby equipping surrogates with complete knowledge of what they had actually agreed to undertake or perform or deliver.25

4.2.3

The Surrogacy (Regulation) Bill 2019

Unfortunately, the recommendations of the 102nd Parliamentary Standing Committee Report on the 2016 Bill were not heeded to by the legislature, and in the year 2019, The Surrogacy (Regulation) Bill 2019 was introduced by the Cabinet. The Surrogacy (Regulation) Bill, 2019 did not incorporate any of the recommendation of the committee report. In fact, it was a largely unmodified version of the 2016 Bill. The Report of the Select Committee on The Surrogacy (Regulation) Bill, 2019 which was presented to the Rajya Sabha on February 5, 2020 made various recommendations after interacting with the various stakeholders involved and after looking into the report on the 2016 Bill and which resulted in putting into domain, the Surrogacy (Regulation) Bill 2020.

4.2.4

The Surrogacy (Regulation) Bill 2020

With respect to the concerns raised regarding the protection of the surrogate mother, The Surrogacy (Regulation) Bill 2020 does incorporates some of recommendations of the committee reports such as replacing the provision mandating a close relative to become surrogate mother to ‘any willing woman’.26 Also, the definition of the term ‘insurance’ has been expanded to include compensation for ‘specified loss, damage, illness or death of surrogate mother and other prescribed expenses incurred on such surrogate mother during the process of surrogacy.’27 Similar to the previous bills, it also places a prohibition on the conduct of surrogacy procedures without explaining to the surrogate mother all the possible side effects and the after effects caused by the procedure and without taking her informed consent in writing in a language she understands.28 Further, the bill permits the surrogate mother to opt out and thus withdraw her consent for the procedure before the

25

The Assisted Reproductive Technology Bill, 2014, s. 47 (5). Available at https://www.prsindia. org/uploads/media/draft/Draft%20Assisted%20Reproductive%20Technology%20(Regulation)% 20Bill,%202014.pdf. Accessed 8 April 2018. 26 Surrogacy (Regulation) Bill, 2020, s. 4 (iii) (b) (II). Available at https://prsindia.org/files/Bills_ acts/Bills_parliament/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf. 27 Id., s. 2 (q). 28 Id. s. 6 (1).

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embryo is implanted in her womb.29 It also lays down that abortion of a surrogate child would require the consent of the surrogate mother and authorization from the appropriate authority in compliance with the provisions of the Medical Termination of Pregnancy Act, 1971.30 Further, the bill makes it obligatory on the part of the intending couple to execute an insurance coverage for a period of thirty-six months covering postpartum delivery complications in favor of the surrogate mother by an insurance company or an insurance agent recognized by Insurance Regulatory Development Authority (IRDA).31 The exploitation of surrogate mother by any person, organization, surrogacy clinic, laboratory or clinical establishment in addition to any one advertising or undertaking commercial surrogacy, selling or importing human embryos for surrogacy, exploiting, disowning the surrogate child and conducting sex selection has been made punishable with a punishment of up to 10 years of imprisonment and up to Rs 10 lakh rupees of fine.32 Though the 2020 bill has tried to incorporate much of the recommendations of the Standing Committee Reports of 2016 and 2019 from the point of view of protection of surrogate mothers. However, despite this, there are still some glaring loopholes in the bill which one can see. For example, though the bill defines altruistic surrogacy and mandates intending couples to provide medical expenses, insurance coverage and ‘other such prescribed expenses’ to the surrogate mother, the term ‘other such prescribed expenses’ leaves plenty of room for interpretation and can lead to a lot of confusion and consequent litigation. One has to bear in mind that since the bill also allows willing woman, a lot of volunteers for acting as surrogate mothers hailing from the backward sections of the society who do not have the adequate resources may offer to become surrogates. It may lead to exploitation of poor surrogates, the same purpose for which the regulatory framework is being enacted. Further, the most glaring loophole in the bill is the omission of a legislative framework regarding surrogacy agreements as the bill does not provide any provision regarding the same. Till the time, an express provision laying down the framework of a surrogacy agreement is incorporated in the legislation, and the objective of achieving zero exploitation of the surrogate mother will only remain a dream. Basis the discussion on laws and policies regarding surrogacy across the Globe in the foregoing Chap. 2 titled ‘Surrogacy: Laws and Policies Across the Globe’ where it was gathered that countries like South Australia, Western Australia and Canada have clear provisions relating to payment of surrogacy costs including medical expenses, fertility treatment expenses, postnatal care, out of pocket expenses, loss of work-related income, premium payments for insurance claims, counseling costs, fee for care of dependents and pets, purchase of groceries, maternity clothes, etc., the same could also be incorporated under the expression

29

Id. Id. 31 Id, 32 Id. 30

s. s. s. s.

6 (2). 3 (vi). 4 (iii) (a) (III). 36(1)(a-g)&(2).

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‘other such prescribed expenses’ in the current bill (pending nod Indian Parliament). Further, just like the Parliament of South Australia which has recently passed the Surrogacy Act, 2019, where under a surrogacy agreement needs to be in writing and should be containing a lawyer's certificate certifying that both parties have obtained independent legal advice on the agreement along with a counselor's certificate, verifying that both parties have undergone the required counseling, similar provisions could also be incorporated in the pending bill to safeguard the interest of the surrogate mothers in altruistic surrogacy arrangements and protect them from any kind of exploitation. The guidance can also be taken from the Child Parent Security Act 2020 and the Surrogates Bill of Rights in existence in New York for framing the effective mechanism to protect the rights of the surrogate mother and child in India.

4.3

From the Perspective of Surrogate Child Concerns

When we speak of rights of child, these include rights to be protected and cared for, right to association with both the biological parents, right to identity as well as the right to basic needs such as food, health care, State-paid education and laws aimed at development. While there are a plethora of legislations, conventions, enforcement agencies and mechanisms to ensure children’s rights, however, it was the UN Convention on the Rights of Child (UNCRC), a first globally binding agreement on nations promulgated in the year 1989 which proved to be milestone in protecting the interest of children by viewing the child to be a subject of rights. In fact, the International Conventions and Instruments have contributed considerably to the issue of child abuse and child rights. International law stresses upon participation as a core value along with survival, protection and development. It also stresses that laws and legal strategies must be derived to encourage these values. However, varied legal approaches by different countries toward surrogacy have given rise to a number of legal issues which encroach upon the basic rights of surrogate children as they prove to be easy targets. Since UNCRC recognizes certain rights of the child from the moment he is born and though the said convention does not directly address the issue of surrogacy, at the same time, it does not discriminate between children born through the natural process or surrogacy. Some of the rights, relevant in the present context, may be analyzed as under: 1. 2. 3. 4.

A child’s right to know and right to family care A child’s right not to be separated from his or her parents A child’s right to preserve his or her identity Right to physical and psychological health, i.e., the right to live a healthy life free from manmade abnormalities 5. Right to parentage and nationality.

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6. A Child’s Right to know and Right to Family Care. Article 7.1 of the UNCRC provides that ‘the child shall be registered immediately upon birth and from birth itself, shall have a right to a name, right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.’ The right to a birth certificate and acquiring nationality are fundamental concerns under International Commercial Surrogacy (ICS). Children born under ICS are often deprived of these rights and have been rendered stateless and parentless because the country where surrogacy takes place though permits surrogacy but denies citizenship to the child on its land and the country in which intended parents reside, it refuses recognize such child as a legal child and therefore, refuses to grant citizenship to such child.33 (ii) A Child’s Right Not to be Separated from His or Her Parents Article 9.1 of the UNCRC provides ‘State parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.’ Similarly, principle 6 of the Declaration of the Rights of the Child 1959 (DRC) States: ‘…a child of tender years shall not, save in exceptional circumstances, be separated from his mother.’ However, under every surrogacy arrangement, the intention of removing the child from his/her gestational mother or from the biological mother, in case where the embryo has been created using gametes donated by a woman who is not the child’s intended social mother, is explicit. Therefore, such arrangements may amount to violation of article 9.1 of the UNCRC and principle 6 of the DRC. (iii) A Child’s Right to Preserve His or Her Identity According to UNCRC, the States are obliged to respect the rights of the child and to preserve their identity which includes nationality, name and family relations as recognized by law without any unlawful interference.34 In some cases, a complexity may arise where children born of surrogacy have anonymous donors as one or both genetic parents. (iv) Right to Physical and Psychological Health The right to health is deeply embedded in International Human Rights Law as well as National Law. According to Article 25 of UN Declaration of Human Rights (UDHR), everyone has the right to a standard of living which is adequate for his/her 33

The United Nations Convention for the Rights of The Child, art 7. Available at https://www. ohchr.org/Documents/ProfessionalInterest/crc.pdf. Accessed 8 April 2018. 34 Id., art 8.1.

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health and for well-being of himself and his family including food, clothing, shelter, housing, etc. Again, Article 11 of the International Covenant on Economic, Social and Cultural rights (ICSCR) provides that parties to the covenant should recognize the right of everyone to adequate food, clothing and housing, and Article 12 formulates the right to health as an autonomous and independent right.35 The UNCRC also, while addressing the issue of health, provides for a mandate on the State parties to recognize the right of the child to the enjoyment of the highest attainable standard of health and to the facilities for the treatment of illness and rehabilitation of health and take appropriate measures for the achievement of the same, combat disease and malnutrition through the provision of adequate nutritious foods and clean drinking-water and health care.36 The convention also made it obligatory for the State parties to recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development, and it further provides that in case of need, the State shall provide material assistance and support programs, particularly with regard to nutrition, clothing and housing.37 Talking about the Constitution of India,38 Article 39(e) & (f) also provides that the State shall, in particular, direct its policy toward securing the health of children and giving children the opportunity and facilities to develop in a healthy manner and in condition of freedom and dignity and to be protected against exploitation and against moral and material abandonment. Further, under Article 47 of the Constitution, the State is directed to raise the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties, and in particular, the State shall endeavor to bring about the prohibition of the consumption, except for medical purposes, of intoxicating drinks and of drugs which are injurious to health. Unfortunately, in the Constitution of India, the right to health is not a recognized fundamental right. However, the Supreme Court has observed that the right to life includes within itself, the right to live with human dignity and along with it goes, the bare necessities of life such as adequate nutrition, clothing and shelter.39 Further, when speaking of a child’s right to health, minority of studies undertaken on children born using ARTs reveal that these children are more likely to be born at a low birth weight or very low birth weight, and as a result thereof, such children have a greater probability of being born with serious birth defects.40 The use of ovulation-stimulation hormones, a popular method used for assisting unproductive couples, creates a heightened risk of high order multiples, ranging

35 International Covenant on Economic, Social and Cultural Rights, available at https://www.ohchr. org/documents/professionalinterest/cescr.pdf. 36 UNCRC supra note 33 at art. 24. 37 Id., art. 27. 38 The Constitution of India (1950). Available at https://legislative.gov.in/sites/default/files/COI_1. pdf. 39 Francis Coralie Mullin v. Union Territory of India, AIR 1981 SC. 40 Rosato (2004)

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from triplets to septuplets as ovaries are stimulated to release multiple eggs at the same time.41 Several recent studies also found ‘an-unexpectedly high incidence of Beckwith–Wiedemann syndrome42 in children conceived with IVF.’43 It is also found that an IVF child could have a 25–60% higher incidence of congenital disabilities and illnesses (compared to 1–3% in the general population).44 However, many researchers have stated that a greater and a detailed study on this aspect is required. It is also seen that owing to early separation of the surrogate child from the surrogate mother immediately upon birth, the newly born baby is deprived from its right to breast-feeding which may expose the child to various medical problems in future. It is common knowledge that breast milk is considered an ideal food for infants as it provides numerous benefits such as age-appropriate nutrition as well as immunological protection.45 Therefore, surrogacy practices require creation of milk banks. However, in surrogacy arrangements, it is witnessed that the interests and welfare of the child are least measured46 and various rights are overlooked. (v) Right to Parentage and Nationality Article 15 of the Universal Declaration of Human Rights (UDHR) provides that ‘[e]veryone has the right to a nationality’ and that ‘[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.’ Enshrining citizenship and the right to be free from arbitrary deprivation of citizenship as human rights, Article 15 of the UDHR establishes the bedrock of legal relationship between individuals and States. While all States are bound to respect the human rights of all individuals without distinction, an individual's legal bond to a particular State through citizenship remains in practice as an essential prerequisite to the enjoyment and protection of the full range of human rights. Further, the UNCRC also provides that ‘the child shall be registered immediately upon birth and from birth itself, shall have a right to a name, right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.’47 However, children born via surrogacy often face an uncertain status as regards their parentage and nationality. Conflicting laws on parentage, citizenship and surrogacy indicate that a child can end up with no legal parents or nationality. Since a child’s citizenship is usually based on parentage and place of birth, the respective nation’s understanding/interpretation of parenthood has wide implications on a child’s nationality which can be problematic for the child and in cases where the

41

Ibid. Beckwith–Wiedemann syndrome is a rate congenital growth disorder that causes large baby size, large organs and other problems. 43 Galpern (2013). 44 Ibid. 45 The Lawyers Collective (2003). 46 Chatterjee (2012). 47 UNCRC, supra note 33, art 7. 42

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commissioning parents hail from nations which ban surrogacy, commercial or otherwise, the situation may worsen. This generally happens due to the intending parents’ desire for a child which is often fueled by agencies facilitating international surrogacy encouraging couples to ignore laws prevalent in their own countries and downplay the risk to their parental rights over the child which in turn results in violation of various rights of the surrogate child. Conflicts among legal frameworks on parentage, citizenship and surrogacy put the surrogate children at a risk of being born with an uncertain status regarding its identity, parenthood and nationality which in turn renders the child with no legal parents or nationality.48 In fact granting parenthood does not concern a single right but is the genesis of various other invaluable rights. Having legal parents grants children several rights and protections including right to citizenship, access to Medicare and medical benefits, access to medical treatment, applications for passports and anything requiring a Birth Certificate, inheritance rights, right to identity, right to vote, right to apply for a government posts and rights to enjoy other benefits of schemes which may be introduced by the government. Thus, the practice of surrogacy exposes parenthood, not as a biological fact, but as a legally and socially constructed status with responsibilities, obligations and benefits. Further, varied legal rules of countries on the acquisition of nationality contribute to the risk of surrogate born children being rendered stateless and expose the child to an increased risk of becoming a victim of human trafficking or other forms of exploitation. It is relevant to note, the acquisition of nationality commonly operates under the principle of either jus soli (the right of soil) or jus sanguinis (the right of blood). In a country which subscribes to the jus soli principle, the child so born will obtain citizenship of the country by virtue of his/her birth in that country. Problems arise when the country of birth or intended country of residence applies the principle of jus sanguinis which implies establishment of legal parentage. In fact, one can witness a number of cases that have arisen in international surrogacy arrangements where the commissioning parents were unable to establish their legal parenthood and secure a national identity for their child. Some of these cases are being discussed hereunder.

4.3.1

Cross-Borders Surrogacy Cases

• Baby Manji Yamada v. Union of India.49 In this case, a baby called Manji was born to an Indian surrogate mother and to commissioning parents belonging to Japan. The Japanese couple had used the husband’s (Mr. Yamada’s) sperm and an Indian donated egg to create the embryo. 48

Henaghan (2013). Baby Manji, AIR (2008) 13 SCC 518.

49

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The baby hung in legal limbo when her biological parents (the Japanese couple) got divorced, and the wife was not ready to accept the child and even the surrogate mother too abandoned the child. Japanese authorities told Mr. Yamada that he would be able to bring Manji to Japan only by adopting Manji pursuant to both Japanese and Indian Laws. The father could not adopt the child as under the Indian Law, a single father cannot adopt. During all this, a petition came to be filed before the Rajasthan High Court by ‘Satya’, a NGO praying for preventing Manji from being taken out of India. A challenge was laid to the commercial surrogacy, and it accused the clinic of illegal infant trade where Manji was born. The petitioner alleged and argued that since there was no legislation on surrogacy in India, therefore, as such, nobody could claim parenthood over Manji, including Mr. Yamada. The Rajasthan High Court required Manji to be brought to them within four weeks. In response, Mr. Yamada’s mother filed a writ petition on Manji’s behalf before the Supreme Court of India.50 The Supreme Court granted temporary custody of Manji to Mr. Yamada, and in an order dated September 29, 2008, while disposing of the case, it stated that the Commission formed under the Protection of Children Right Act, 2005, was the appropriate authority to hear the complaints of the type made by Satya and on that basis the Supreme Court disposed of Satya’s proceedings pending before the Rajasthan High Court.51 On the issue of commercial surrogacy, while validating the same a pertinent observation was made by the Court saying “Commercial surrogacy is legal in several countries including India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms ‘wombs for rent’, ‘outsourced pregnancies’ or ‘baby farms’”.52 Post the judgment of the Supreme Court, Baby Manji was provided with a certificate of identity by the Jaipur Passport Office as a special dispensation along with a one-year visa on humanitarian grounds, by the Japanese embassy in India which later resulted in Baby Manji traveling to Japan with her grandmother on November 2, 2008.53 • Jan Balaz v. Anand Municipality54 The question of statelessness of a child born through surrogacy again came to the forefront in the Jan Balaz case where a German couple commissioned a surrogacy in India by using Mr. Balaz’s sperm and a donated egg. Consequently, in 2008, twins named Leonard and Nikolas were born in India. However, they had to remain

50

Smerdon, U. (2008). Baby Manjhi supra note 49. Para 13. 52 Id at para 9. 53 Smerdon U, supra note 50. 54 Jan Balaz v. Anand Municipality, no 3020, special civil application (Gujarat High Court November 11, 2009). 51

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in India for two years due to their statelessness. While the twins came to be originally registered and issued with Indian birth certificates with Balaz’s as their parents, litigation ensued when the German Authorities refused to grant recognition to the birth certificates for granting German nationality due to surrogacy being illegal and punishable in Germany.55 The German couple had to resort to the Court to obtain Indian passports for their twins. Since, the twins lacked an ‘Indian parent’, a lower Court refused to recognize them as Indian. The authority that had issued the birth certificates then recalled them and replaced Mrs. Balaz with the Indian gestational surrogate as the children’s ‘mother’, while Mr. Balaz remained identified as the ‘father’, and subsequently, two Indian passports were issued for the twins.56 However, the Ministry of External Affairs, vide its letter dated 6.05.2008, asked for the surrender of the passport till the time the petition remained pending before the High Court.57 While, Balaz surrendered the passport, nevertheless he filed a petition before the Gujarat High Court alleging violation of Article 21 of the Constitution of India, 1950, and prayed for getting back the passport enabling him to take back the twins to Germany.58 The petition was resisted by the authorities asserting that as per Sect. 3 of Citizenship Act, 1955, a child born as a result of a surrogacy procedure cannot be treated as an Indian citizen, and as such, the surrogate mother cannot be treated as the mother of the twins. Thus, the twins, as a result, cannot apply for Indian passports. Balaz argued that since the twins were born to an Indian mother, be it surrogate, the children were Indian citizens under Sect. 3 of the Citizenship Act, 1955.59 It was also pointed out that since Germany did not legally recognize surrogacy, the children would not be granted German citizenship.60 While acknowledging the unprecedented peculiar facts of the case and the fact that the citizenship issue was a momentous question, the High Court, while observing that the rights of the babies was of prime concern, held “Surrogate mother is not the genetic mother or biologically related to the baby, but, is she merely a host of an embryo or a gestational carrier? What is the status of the ova (egg) donor, which in this case is an Indian national but anonymous. Is the ova donor the real mother or the gestational surrogate? Are the babies motherless, can we brand them as legal orphans or stateless babies? So many ethical and legal questions have come up for consideration in this case for which there are no clear answers, so far, at least, in this

55

Times of India (2010). Jan Balaz, Supra note 54. 57 Ibid. 58 Murari (2009). 59 The Citizenship Act, 1955s. 3(1)(c)(ii) provides: ‘except as provided in sub-Sect. (2), every person born in India, (c)on or after the commencement of the citizenship (amendment act, 2003 … (ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth’. 60 Jan Balaz, Supra note 54. 56

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country. True, babies conceived through surrogacy, encounter a lot of legal complications on parentage issues, this case reveals. Legitimacy of the babies is therefore a live issue. Can we brand them as illegitimate babies disowned by the world?”61

In the entire proceedings, the High Court emphasized on a comprehensive legislative framework needed to be enacted in order to define and protect the rights of the parties involved in surrogacy. In absence of there being any legislation on the subject, the Court was inclined to consider the surrogate mother rather than the egg donor or the intended mother, as the natural mother of the child by stating thus62: “Resultantly, the only conclusion that is possible is that a gestational mother who has blood relations with the child more deserves to be called as the natural mother. She has carried the embryo for [the] full 10 months in her womb, nurtured the babies through the umbilical cord. Even if we assume the egg donor is the real natural mother, even then she is an Indian national so revealed before the learned single judge, we are told. Both the egg donor as well as the gestational surrogate are Indian Nationals, and hence the babies are born to an Indian National.”63

Finally, while relying upon Sect. 3(1)(c)(ii) of the Citizenship Act, 1955, the High Court ruled that the twin children so born were Indian citizens by birth and were entitled to Indian passports and that any denial to this would be contrary to Article 21 of the Indian Constitution and, therefore, it directed for the release of their passports. Despite the above decision, since the passport authorities did not comply with the directions, even after the decision of the High Court, the Regional Passport Office refused to release the passports until consultation with the Union Home Ministry64, a contempt petition was filed by Balaz. Upon notice being issued, the Central Government approached the Supreme Court challenging the judgment of the High Court. It contended before the Supreme Court that the surrogate mother could not have been held to be the mother of the twins since as per the recommendations of the Law Commission Report, the birth certificate of the child/ children would only contain the name of the commissioning couple/intended parents; that the surrogacy contracts be upheld by the parties in case of absence of legislation65 and lastly that in view of the specific clauses in the surrogacy contract, could the surrogate mother claim any parental right over the child.66 The SLP so filed was admitted by the Apex Court and was converted into Civil Appeal No. 8714/2010 for a decision on the legal issues. The Court urged the Indian authorities for non-judicial avenues and also suggested adoption as a solution. A one-time exemption for Balaz and Lohole was suggested to the Central Adoption

61

Id. at para 9. Id., at Para 14, 19–21. 63 Id., at para 16. 64 Times of India (2009). 65 Union Of India & Anr. v. Jan Balaz and Others, Civil Appeal No. 8714/2010 (Order dated November 25, 2009). 66 Ibid. 62

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Resource Agency (CARA) by the Apex Court so that they could adopt the twins. Though, CARA agreed to issue a no-objection certificate regarding the same but stated that this exemption would not be treated as a precedent in future. Finally, in May 2010, more than after two years of the birth of the twins, they were allowed to be adopted, and Germany granted the twins the necessary travel documents to travel to Germany. Final adjudication of the appeal is still pending before the Supreme Court.67 However, this still did not resolve the question of her nationality, and the law remained unclear as to whether a child born to an Indian surrogate is a citizen of India or not. Though the case was successful enough to receive national and international media attention and bringing to light various issues relating to cross-border surrogacy contracts in the lack of any regulation governing the same. Thus, neither of the above two cases provided the Courts with an instructive framework for resolving future cases. In the absence of any regulations or case precedent, it is unclear as to how in future, the Courts in India would address cases of stateless surrogate children. In fact parentage and citizenship issues are also interconnected with issues relating to immigration of the surrogate child to the country of his commissioning parents. In the Goldberg Twins Case, where a gay couple from Israel arranged surrogacy in India through a donated egg and by using sperm from one of them. This was so arranged as Israel although permits surrogacy but does not grant parental rights to gay couples via surrogacy. Surrogacy resulted in the birth of twins and as expected, the couple were denied paternity test by the Jerusalem Family Court for initiating the process for acquiring Israeli citizenship for the twins. Resultantly, the gay couple remained stranded in India. The issue was delved into detail by the Israeli Parliament and upon an appeal having been filed before the Jerusalem district Court, the gay couple were allowed the paternity test in the best interests of the child. Since the DNA test confirmed that one of them was the biological father of the surrogate twins, the Israeli authorities issued them Israeli passports enabling the couple to return home with their children after having remained for three months in India.68 All the three cases supra highlighted the confusion and the lack of regulations in India which created the potential for leaving the legal and nationality status of child born from surrogacy in doubt thereby highlighting the insufficiency and lacunae of the ICMR guidelines in addressing the problem of parenthood of surrogate children. Further in Volden case, a single Norwegian woman spent over an year in attempting to take twins born in India in 2009 to Norway due to a number of difficulties because the children were not Norwegian citizens and could not be issued Norwegian passports.69 In this case, a single Norwegian woman had commissioned pregnancy using an egg donated by an Indian donor and a Scandinavian

67

Id. Malhotra and Malhotra (2013). 69 Ibid. 68

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sperm donor.70 The surrogate mother gave birth to twins, but the twins could not get Norwegian passports since they were not Norwegian citizens, and secondly, Norway recognized only the birth mother as the child’s mother.71 The Norwegian authorities suggested adoption as the only method by which motherhood could be gained in this case under the Norwegian law.72 After prolonged negotiations, the twins were granted residence permit in Norway in April 2011 by the Norwegian Government, and it was expected that they would attain Norwegian citizenship once they were legally adopted. Another reported case of twins born through surrogacy arose in connection with a Canadian couple who commissioned surrogate pregnancy in India using the husband’s sperm and a donated egg which resulted in the birth of twins, a baby girl and a baby boy in 2006, and consequently, the couple applied for Canadian citizenship for their children.73 For a child born via surrogacy, the procedure for obtaining Canadian citizenship is that the applicant has to be genetically linked to at least one of the commissioning Canadian parents. While the DNA tests confirmed that the baby girl was genetically linked to the commissioning father; however, either due to some medical error or due to a fraud played, the baby boy was not found linked.74 As this was a peculiar situation and the Canadian law being silent on such situations, it was only in 2011 that the Canadian Government granted a non-biological child an entry visa. The couple planned to apply later for the grant of Canadian citizenship for their non-biological child on compassionate and humanitarian grounds.75 Similarly, in another case, twins were born to a British commissioning couple with the help of an Indian surrogate mother where the gamete was provided British commissioning couple.76 Since the twins were born in India to an Indian surrogate mother, the British High Commission initially denied their passports. However, a six-month legal battle ensued, and the commissioning couple was able to secure the twins’ entry into the country on a one-year fixed-term entry visa.77 Further, Indian media also reported the story of a gay French father who encountered difficulty in immigrating to France, his twins who were born in 2010, through surrogacy in Mumbai.78 For him, trouble began when he took the twins’ Indian birth certificate to the French consulate and asked for the children to be

70

Roy (2010). Ibid. 72 Id. 73 Aulakh (2010) 74 Ibid. 75 Aulakh (2011). 76 Ibid. 77 Ibid. 78 Deb Roy (2010). 71

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entered on the French birth register so that he could obtain French passports for them.79 It took at least four months trying to sort out the issues80, and till that time, he remained in India. Similar were the hurdles faced by the first Indian surrogate baby who was born to Icelandic commissioning parents. The couple encountered lengthy delays in immigrating to Iceland. The baby was born in November 2010, but only after the intervention of a Senator, the child was granted a social security number by the Icelandic Parliament a month later.81 According to the Iceland Ministry of Interior Affairs, even though the baby was granted Icelandic citizenship, there was a delay in issuing the child an Icelandic passport because Iceland had requested data from the Indian authorities about the child’s parentage.82 In interviews with the Indian media, the commissioning parents attributed the delay to an attempt by the Icelandic Government to thwart cross-border surrogacy arrangements.83 The child was granted an Icelandic passport and left India in February 2011.84 Another case reported was that of a biological daughter of an Irish commissioning couple who was born to an Indian surrogate on September 25, 2010.85 In India, at the Irish Embassy, the couple received an emergency travel document for the child which they used to take their daughter to the UK where they were residing at that time. When the baby was three months old, the couple relocated to Ireland, where they attempted to obtain a passport for the child but which was refused. The commissioning father attempted to seek a declaration of parentage in June 2011, but the Court refused to hear the application, stating that it was a High Court matter since it involved surrogacy.86 Sometime later, an American woman created a stir when she left a baby at the passport office in Secunderabad on January 25, 2012, out of frustration of being unable to secure an Indian passport for the child who was born in December 2011.87 The police traced the woman through documents left with the baby, to an ART clinic.88 The American woman stated that she had brought seven samples of her husband’s sperm from New York89 and the child was reportedly conceived with eggs from an Indian egg donor and the sperm of the woman’s husband, a Jamaican citizen, using a surrogate mother in Hyderabad.90 The woman was unable to secure

79

Ibid. Ibid. 81 Kurjan (2010). 82 Iceland Review (2011). 83 Icenews(2011). 84 Ibid. 85 Hourican (2011). 86 S O’Connor (2011). 87 Ramu (2012.). 88 Ibid. 89 Ibid. 90 Ibid. 80

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a Jamaican passport for the baby because there was no Jamaican embassy in India. She approached the Consul of the Jamaican Government in Delhi, who referred her to the passport office in Hyderabad.91 The woman said she believed that the baby was an Indian citizen since he was born on Indian soil.92 Before she flew to India from New York, the woman reportedly approached the Jamaican embassy in New York for guidance as to the baby’s exit procedures.93 She claimed she was advised that the baby would be issued with an Indian passport which she could use to fly the child to Jamaica and that she would not need a visa for the child since India does not require visa to fly to Jamaica.94 The passport office in Hyderabad sought the advice of the Ministry of External Affairs. Because an egg donor’s identity is confidential under a surrogacy arrangement, the Ministry of External Affairs advised that the only means for the child to be issued an identity card were proof of the husband’s DNA linking the child biologically to him or legal adoption documents.95 The American woman countered that her husband could not fly to India for DNA testing due to a fear of flying prompted by his father’s death in an air crash.96 However, she was eventually able to leave India with the baby after the US Consulate intervened.97 In the year 2000–2001, in another case popularly known as the California– French Case of the Mennesson and Labassees,98 the Mennessons on the one hand and the Labassees on the other obtained children through surrogate mothers following an oocyte donation in the United States—where surrogacy and oocyte donations are remunerated. The wives were 45 and 49 years old, respectively. On the American birth certificates, the applicants were indicated as the fathers and mothers of the children, but they did not obtain the transcription on the French civil records. The applicants’ claims were dismissed at final instance by the French Court of Cassation on April 6, 2011 on the grounds that recording such entries in the register would give effect to a surrogacy agreement that was null and void on public policy grounds under the French Civil Code. The Court found that there had been no infringement of the right to respect for private and family life since the annulment of the entries had not deprived the children of the maternal and paternal legal relationship recognized by the laws of California and Minnesota and had not prevented them from living in France with Mr. and Mrs. Mennesson and Mr. and Mrs. Labassee. Thus, based on its policy which rejects parentage by surrogacy, the French case de Cassation (French Supreme Court) ruled that the children were not

91

Ibid. Times of India (2012). 93 Ibid. 94 Ibid. 95 DNA (2012). 96 Deccan Chronicle (2012). 97 Srinivas (2012). 98 Application numbers 65192/11 and 65,941/11 Council of Europe: European Court of Human Rights (2014). 92

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French citizens.99Applicants, in both cases, complained to the European Court arguing first that, on the detriment of the best interests of the child, they were unable to obtain recognition in France of parent–child relationships that had been legally established abroad vide Art. 8 of the ECHR and Art 3 of the UNCRC.100 Secondly, it was argued that their children had been placed in a discriminatory legal situation compared with other children when it came to exercising their right to respect for their family life. The ECHR examined surrogacy from the point of view of the surrogate children and held that France’s refusal to recognize, or permit the establishment of, the legal relationship between children, born in the USA following ISAs, and their genetically related intending fathers was in violation of Article 8 of the European Convention on Human Rights (ECHR) dealing with the right to respect for private and family life. Another case on the issue whether the commissioning couple had parental rights over the surrogate child born to them in USA, came before the British High Court in Re: L (A Minor) Case.101 In this case, a commissioning couple from UK entered into surrogacy agreements in Illinois (USA) which resulted in the birth of Baby L. Baby L. was issued a US passport, and the couple brought the surrogate child to UK after temporary leave was granted for his travel. The question before the British Court was to determine whether the commissioning couple had parental rights over the surrogate child born to them in USA. The challenge before the Court was that the British couple entered into commercial surrogacy in USA and payment for surrogacy outside ‘reasonable expenses’ was considered illegal in the United Kingdom under Sect. 54(f) of the Human Fertilisation and Embryology Act 2008. Hedley J held that the welfare of Baby L. born to British couple in USA as a result of international commercial surrogacy was paramount consideration and L’s welfare outweighed any public policy considerations regarding surrogacy

99

Ibid. European Commission on Human Rights, Article 8 provides that ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.(2). There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ Further art.3 of UNCRC provides that In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (2) States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.(3)States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.’ 101 Re: L (A Minor) [2010] EWHC 3146 (Fam). 100

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arrangements. Therefore, the judge ordered a parental order in favor of British couple. The policy arguments described by Hedley J in Re S (parental order) can be summarized thus i. To ensure that commercial surrogacy agreements do not circumvent child care laws ii. The Court should be careful not to be involved in any arrangement allowing any payment being done for effectively buying children overseas. iii. The Court should be astute to ensure that sums of money which may seem to be modest in nature are actually not of such a character that they may overbear the will of a surrogate. Hedley J stated that ‘it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making.’102 Further, in two Ukrainian cases Re: IJ (A child)103 and Re: X&Y (Foreign surrogacy)104 having similar facts and circumstances as discussed in the case of Baby L once again came before the British Court on the issue of citizenship and nationality of the surrogate child. In each of the mentioned cases, the commissioning couple from UK arranged for commercial surrogacy in Ukraine. The embryo was prepared by using the sperm from the male partner and a donated egg. The surrogate hired was married, and British law would regard the surrogate and her husband as the legal parents under the under British Human Fertilization and Embryology Act, 1990. Under the Ukrainian law of surrogacy, the commissioning couple is considered to be the legal parent of the surrogate child, whereas the surrogate mother relinquishes all her parental rights over the child she gestated under the surrogacy contract. This implied that the surrogate child so born to a foreign couple in Ukraine had no right to residence or citizenship in Ukraine. In these cases also, the children born were left legally orphaned and stateless. However, the British Court favored the welfare of the child over public policy concern about commercial surrogacy and ordered the entry of these children in UK by passing its national legislation prohibiting commercial surrogacy. DNA testing was conducted to establish the genetic relation between the commissioning father and the surrogate child. Keeping in mind the welfare of children, Hedley J passed a parental order in favor of the commissioning couples in both circumstances and held the requirement in the Human Fertilization and Embryology (Parental Orders) Regulations, 2010 of giving notice to the home office, of any parental order that would provide a child with British citizenship, to be dispensed with in cases of international surrogacy.105

102

Henaghan, Supra note 48. Re: IJ (A child) [2011] EWHC 291 (Fam). 104 Re X and Y (Foreign surrogacy) [2008] EWHC 3030 (Fam). 105 Henaghan Supra note 48. 103

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In another Ukraine–French case of Le Roches106, the French citizens Patrice and Aurelia Le Roch, citizens of France, traveled to Ukraine to hire a gestational surrogate in 2010. The surrogacy contract was concluded as per the terms, and the surrogate delivered birth to twins. Under Ukrainian law, commissioning parent is treated as legal parent of the child. On the contrary, France does not recognize surrogacy in any form and does not grant French citizenship to children born from cross-border surrogacy to French Nationals, though it may grant permission to surrogate child to live in France with intended parents. Therefore, under Ukrainian law, the commissioning parents are the legal parents, while under the French law, no one is treated as the legal parents of the surrogate child. The agency in Ukraine advised the couple not to reveal the details of surrogacy to French authorities in order to obtain French citizenship for the surrogate child born in Ukraine. Thereafter, the French couple applied for the French passports at the French embassy claiming that the children were naturally born to the couple in Ukraine. The French embassy suspected it to be a case of international commercial surrogacy and requested for medical records and supporting documentations. When the couple was unable to produce the required documents, their application was rejected, and the baby was refused entry into France. Since Ukraine does not recognize surrogate mother as the legal mother of the child, the children were denied Ukraine Citizenship as well. The baby was virtually left stateless. Stuck in this legal rut, Patrice Le Roch and his father hid the twins under their car mattress and without proper legal documentation attempted to cross into Hungary from Ukraine.107 Upon discovery, Ukrainian authorities charged both men with attempting to illegally transport children without proper documentation under Ukrainian child trafficking laws.108 Patrice and Aurelia Le Roch tried to petition other European countries to give their twins a passport and remain in Kyiv with their twins waiting for French authorities to rule on their daughter's status.109 Recently, in 2020, the English Court was confronted with the issue of grant of a parental order in Re X[2020[EWFC 39].110 In the said case, 4 months prior to the birth of the surrogate child, the intended father who had donated gametes, suddenly died. Having no other option, the intended mother filed an application seeking grant of parental order, and the said application was filed by the intended mother jointly in the name of the intended father [who was no longer living], as she could not have applied in her own name owing to the conditions laid under Sect. 54 of the Human Fertilization and Embryology Act 2008. The Court, after considering all the facts and the peculiar situation with which it was faced with, while holding the welfare of the child to be of paramount importance, granted the parental order in the name of the intended parents. The primary reason which weighed with the Court was that

106

Grushenko (2011). Daily Mail (2011). 108 Ibid. 109 Mohapatra (2012). 110 Re X[2020]EWHC 39. 107

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non-grant of the parental order would mean depriving the child from legal recognition and relationship with his father and which amount to breach of the child’s right to enjoy the rights enshrined under Article 8 of the European Convention on Human Rights (ECHR). And in this manner, the Court read down Sect. 54 (1), (2) (a), (4) (a) of the HFEA 2008. Similarly, again in the case of Re: A (Surrogacy s. 54 Criteria) [2020],111 a parental order was granted despite the commissioning parents having been separated at the time of application for grant of parental order and the separated father having minimal contact with the child. In fact, in this case, the Court held that the word ‘home’ must be accorded a wide and purposive interpretation and must not be held to mean that the applicants must be living together under one roof. The Court observed that an outdated legislation should not be allowed to prevent the welfare of a child who is placed at the center of any surrogacy arrangement. Thus, the above-referred cases illustrate the plight of babies born via surrogacy who fall prey to the legal harm of lack of citizenship due to inconsistent laws related to surrogacy across nations. However, at the same time, it is seen that Courts have always held that the interests and welfare of the child are of paramount importance thereby requiring recognition of the child’s legal parentage due to the fact that the child cannot be made responsible for the actions of adults. It is somewhat surprising that in a time when human rights have emerged as the highest form of law in a globalized world, the practice of surrogacy is breeding in spite of the fact that it breaches certain fundamental child rights. Therefore, upon analyzing the various rights guaranteed to children under the UNCRC and other International Instruments and in the light of various issues and cases arising from surrogacy, the immediate requirement of the hour is to have an effective legislation for dealing with the rights and interests of surrogate children. Therefore, a truly multilateral approach is the need of the hour.

4.3.2

Trafficking, Physical Abuse and Abandonment of the Surrogate Child

The links between commercial surrogacy and trafficking, physical abuse and abandonment of surrogate children are also not far-fetched but real. For instance, in 2013 in India, it came to light that under the garb of surrogacy, illegal trafficking of children was taking place by one Dr. Bharat Atit who was running a fertility clinic in Gujarat. It was so revealed that two babies were sold to a childless couple from Porbander by the said doctor. The childless were under his treatment, for rupees eight lakhs.112 This case came into light when one of the surrogate mother Mona alias Manjula Thakur filed a complaint of rape against her boyfriend Rajkumar. 111

Re: A (Surrogacy s. 54 Criteria) [2020] EWHC 1426 (Fam.). Press Trust of India (2013).

112

4.3 From the Perspective of Surrogate Child Concerns

149

During probe, it was found that Mona had entered in surrogacy for Dr. Atit, and her boyfriend had taken some of the money she got from Dr. Atit. Therefore, she wanted to trap her boyfriend by filing a false complaint of rape against him but ended up exposing Dr. Atit’s racket. The doctor was charged with criminal case of human trafficking/illegally selling babies in addition to fraud, forgery and conspiracy under the Indian Penal Code (IPC) and finally got handcuffed for the heinous crime.113 This was the first case in India where a doctor was involved in human trafficking and highlighted the emerging form of trafficking under the garb of commercial surrogacy. The need of strict monitoring of role of doctors involved in surrogacy procedures was thus highlighted vis-a-vis the limitation in the ART Bill 2010, which does not mention offense of child trafficking. Cases of child abandonment following ISAs were also reported in Thailand and India causing media ‘storms’ and illustrating the risks inherent in ISA cases for children, particularly in an unregulated environment. In 2012, in India, an American woman created a stir when she left a baby at the passport office in Secunderabad on January 25, 2012, out of frustration of being unable to secure an Indian passport for her surrogate child who was born in December 2011.114 On being traced by the police through the documents left with the baby to an ART clinic, the woman said she believed that the baby was an Indian citizen since he was born on Indian soil and in fact before she flew to India from New York, she approached the Jamaican embassy in New York for guidance as to the baby’s exit procedures and was advised that the baby would be issued with an Indian passport which she could use to fly the child to Jamaica and that she would not need a visa for the child since India does not require visa to fly to Jamaica.115 However, because an egg donor’s identity was confidential under a surrogacy arrangement, the Ministry of External Affairs advised the passport Authority of Hyderabad that the only means for the child to be issued an identity card were proof of the husband’s DNA linking the child biologically to him, or legal adoption documents but the American woman countered that her husband could not fly to India for DNA testing due to a fear of flying prompted by his father’s death in an air crash.116 However, she was eventually able to leave India with the baby after the US Consulate intervened.117 In 2014, in Thailand also, a case of child abandonment was reported when a West Australian couple Wendy and David Farnell abandoned Baby Gammy with Thai surrogate after they discovered that the child was suffering from ‘Down Syndrome’ and returned to Western Australia with his healthy twin sister.118 Again in 2014 in India again, one of the twins was abandoned by Australian intending parents as the couple only wanted

113

Express News Service (2013). M Ramu, Supra note, 87. 115 Times of India, Supra note, 92. 116 Deccan Chronicle, Supra note, 96. 117 Srinivas M, Supra note, 97. 118 Antony Starza-Allen (2014). 114

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4 Surrogacy Arrangements: The Stakeholders Perspectives

one of them because they already had a child of the same sex,119 highlighted yet again, the need for an international discussion on many issues, including what should happen when arrangements break down and to what checks the intending parents should be subjected to before they are permitted to enter into ISAs. The point could not have been made more starkly when, in the Baby Gammy case, it was subsequently revealed that the intending father had been previously convicted in Australia for offenses against children. In 2013, in India also, an Israeli pedophile who was convicted for sexually abusing children and was jailed for one-and-a-half years was able to manage adoption of a girl of four years through surrogacy contract with a woman in India. In fact in addition to the cases of trafficking and abandonment of children born through ISAs, an instance of physical abuse by the intended parents also came into limelight in the case of Huddlestone v. Infertility Centre of America Inc.120 In this case, the surrogate mother in Pennsylvania was artificially inseminated with the intended father’s sperm. She handed over the child to the father after the child’s birth in accordance with the surrogacy agreement. However, the child died six weeks later as a result of repeated physical abuse causing him to suffer severe head and brain injuries, including ‘shaken baby syndrome’ which in turn raised another concern, i.e., whether child abuse is a foreseeable risk of surrogacy and if yes, it requires to be addressed before legalizing such activities.

4.4

Proposed Surrogacy Bills in India Vis-a-Vis Rights of the Surrogate Child

Speaking of India, it has undoubtedly emerged as one of the most popular destination for commercial surrogacy especially due to low costs involved in such procedures when compared to other countries. However, in the absence of any specific law dealing with surrogacy in India or globally, various complicated social and legal issues affecting the rights and interests of children born from such arrangements arose. Resultantly, various guidelines and bills regarding regulation of surrogacy have been introduced by the legislature in India to regulate surrogacy in the country with primary objective to curb exploitation of surrogate mothers and surrogate children. The manner and extent to which the rights of surrogate children have been taken care of in terms of India’s commitment to UNCR can be analyzed as under:

119

Ahmad (2014). 700 A.2d 453 (Pa. Super. Ct. 1997).

120

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4.4.1

151

Indian Council for Medical Research Guidelines (ICMR), 2005

In 2002, Indian Council of Medical Research (ICMR) promulgated the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India which were revised in 2005.121 These guidelines by ICMR can be regarded as the first document or the Magna Carta of Indian Law on ART. The guidelines also enlist the rights of the child born as a result of ART Technologies and which can be understood as under: 1. According to the Guidelines, the child born to the intended couple as a result of an ART procedure is presumed to be the legitimate child of intending couple, born from the wedlock, with consent of both spouses and have all the legal rights which a child born from sexual intercourse between a couple has, like the right to parentage, support, inheritance, etc.122 2. Children born through the use of donor gametes, and their ‘adopted’ parents shall have a right to available medical or genetic information about the genetic parents that may be relevant to the child’s health.123 3. Children born through the use of donor gametes shall not have any right whatsoever to know the identity (such as name, address and parentage.) of their genetic parent(s). A child thus born will, however, be provided all other information (including that mentioned in Sect. 3.4.8) Guidelines for ART Clinics in India about the donor as and when desired by the child, when the child becomes an adult. While the couple will not be obliged to provide the above ‘other’ information to the child on their own, no deliberate attempt will be made by the couple or others concerned to hide this information from the child as and when asked for by the child.124 4. In the case of a divorce during the gestation period, if the offspring is of a donor programme—be it sperm or ova—the law of the land as pertaining to a normal conception would apply.125 5. Despite the fact that a single unmarried woman is not barred from undergoing ART, under the guidelines, however, keeping in mind the best interests of the child, the guidelines advise that ART procedures should be performed only on a married woman with the written consent of her husband as a two-parent family would be better for the child than a single parent, and the child’s interests must outweigh all other interests.126

121

ICMR (2005) Supra note 2. Id., para 3.16.1. 123 Id., para 3.12.2. 124 Id., at 3.12.3. 125 Id., at 3.12.4. 126 Id., at 3.16.4. 122

152

4.4.2

4 Surrogacy Arrangements: The Stakeholders Perspectives

The Assisted Reproductive Technology (Regulation) Bill, 2008

The Assisted Reproductive Technology (Regulation) Bill, 2008 too provided for the legitimacy of a child born through any ART process on same lines as provided under the ICMR guidelines. It also provided that a child after attaining majority could apply for any information about relating to his/her genetic parents or surrogate mother apart from personal identification.127 The legal guardian of a minor child could also apply for information regarding his/her genetic parents or surrogate mother whenever required for the welfare of the child.128 However, personal identity of the genetic parents or the surrogate mother could only be revealed if the child was suffering from any life-threatening medical condition that required either physical testing or samples of the surrogate mother or the genetic parents and further such information regarding personal identification could only be revealed after taking prior informed consent of the surrogate mother or genetic parent/s.129

4.4.3

228th Law Commission Report on Surrogacy

In August, 2009, the Law Commission of India delivered Report No.228, titled ‘Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy’.130 The Law Commission report while admitting that the 2008 bill was full of lacunas, however, observed that it provided a path to move forward in the direction of creating a suitable legislation not only for regulating the functioning of ART clinics but also the rights of the parties in surrogacy as well as the rights of the child. With respect to the rights of the surrogate child, it recommended the following: 1. There should be provision for financial support for the surrogate child in case of death of intended parent(s), prior to delivery of child or in case of divorce between them and none of them wish to take the child. 2. Sex selection should be prohibited. 3. The surrogate child should be recognized as the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian. 127

Assisted Reproductive Technology (Regulation) Bill 2008, s. 36(1). Available at https://www. prsindia.org/uploads/media/vikas_doc/docs/1241500084**DraftARTBill.pdf. 128 Id. s. 36(2). 129 Id. s. 36(3). 130 Law Commission of India, Report No. 228 on Need For Legislation to Regulate Assisted Reproductive. Technology Clinics As well As Rights And Obligations Of Parties To A Surrogacy (August 2009). Available at https://lawcommissionofindia.nic.in/reports/report228.pdf. Accessed June 8, 2018.

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4. Keeping in mind the fact that the bond of love and affection with the child primarily emanates from a biological relationship, the Commission recommended the option of one of the intended parents to be donor. The Commission was of the view that this would bring down cases of child abuse which were frequently noticed in adoption cases. It was additionally recommended that in case of a single intended parent, he/she shall mandatorily be required to be a donor as well.131

4.4.4

The Assisted Reproductive Technology (Regulation) Bill, 2010132

The provisions under the ART Bill 2010 regarding the rights of the child were identical to the ones under the ART Bill 2008. The Draft ART Bill, 2010 however, seemed to have taken care most of the issues and various rights discussed above. (i) The concerned draft legislation provided that a child delivered through the means of ART shall be presumed to be legitimate to the intending couple as born from the wedlock with consent of the spouses, and the birth certificate issued with respect to the child born through surrogacy will bear the names of the commissioning parties as the child’s parents.133 The child shall also have rights similar to that of a child born through the natural biological process. Similarly, a child born to an unmarried couple or with their consent through the means of ART shall be considered legitimate.134 The bill also recognized a single man and a woman as legitimate parents under surrogacy contracts by providing that a child born out of an ART procedure to a single man or a single woman shall be considered to be a legitimate child.135 Having the harsh experience from baby Manji case, the bill tried to deal with the situation where commissioning parents get separated after entering into the surrogacy contract but before the birth of the surrogate child by providing that if a married or an unmarried couple gets separated or divorced prior to the birth of the child and having consented to the ART procedure, the child shall be considered to be the legitimate child of the intending couple.136At the same time, the bill made it clear that the child born from surrogacy in India to a foreign couple shall not

131

Id., at 26. Assisted Reproductive Technology (Regulation) Bill 2010. Available at https://main.icmr.nic. in/sites/default/files/guidelines/ART%20REGULATION%20Draft%20Bill1.pdf.herin after referred as Draft ART Bill, 2010. 133 Id., s. 35(1). 134 Id., s. 35(2). 135 Id.,s. 35(3). 136 Id.,s. 35(4). 132

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4 Surrogacy Arrangements: The Stakeholders Perspectives

be the citizen of India, thereby making its stand clear in cases involving International Surrogacy Arrangements (ISAs).137 (ii) In order to protect a child’s right to parentage and nationality and to prevent the surrogate child from being parentless and stateless, a remarkable step taken under the bill was vide Clause 19 of section 34. The bill required the Commissioning parties from countries other than India to prove via documentation to the ART clinic that firstly, the country of which they hold the nationality permits surrogacy138 and that the child born out of surrogacy would be permitted to enter into that country as an biological child of the commissioning couple along with an obligation on the part of the commissioning parents to appoint a local guardian, who would be legally responsible for taking care of the surrogate during and after the pregnancy until the child was delivered to the commissioning parties or the local guardian.139 The commissioning parties were made legally bound to accept the custody of the child, regardless of any abnormality of the child140 and refusal to take delivery of the child was considered an offense, punishable by imprisonment for up to three years, or a fine or both.141Also, if the foreign person/couple seeking surrogacy did not take delivery of the child, the bill required the local guardian to be under an obligation to take delivery of the child and also to be held responsible for ensuring the well-being of the child during the transition period. It further prescribed that the local guardian was free to hand over the child to an adoption agency if the commissioning party or their legal representatives failed to claim ownership of the child within one month from the date of birth. In case of adoption or the legal guardian opting to bring up and rear the child, the child was to be granted Indian citizenship.142 Therefore, the obligation cast under the UNCRC to the effect that ‘the child who is temporarily and permanently deprived of the family environment shall be entitled for the protection and assistance by the state’143 was very well taken care of in the Draft Bill. (iii) As far as parental right was concerned, the bill provided for the relinquishment of the parental rights by the surrogate in favor of the intended parents.144 Further, if embryo was formed using gametes from the donor, then in such cases, it provided for the relinquishment of the parental rights by the donor over the child who may be conceived from his or her

137

Id.,s. 35(8). Id., s. 34(19). 139 Ibid. 140 Id., s. 34(11). 141 Id., s. 40. 142 Supra note., 138. 143 UNCRC, 1989, Supra note 33 art.20. 144 Draft ART Bill 2010, Supra, note132 at s. 34(4). 138

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155

gametes.145 The Draft Bill also answered the question raised in the case of baby Manji as to whose name shall be endorsed on the birth certificate of a child born through surrogacy. This question was pertinent in case of commercial surrogacy because surrogacy has the potential to split the parenthood between as many as three mothers and two fathers. The bill expressly mentioned that ‘The birth certificate issued in respect of a baby born through surrogacy shall bear the names of individual/individuals who commissioned the surrogacy, as parents.’146 (iv) Further, in context of the child right to know about his/her ancestry and right to family care, the draft bill granted the surrogate child, right to information with respect to the identity of the surrogate child born. Under Sect. 36 (1) of the proposed ART Bill 2010, the child born as a result of surrogacy procedure had been provided the right to seek information upon reaching the age of 18 years regarding donors/surrogates but excluding personal identification of the donor or surrogacy. In fact, under the bill, the legal guardian of a minor child was also entitled to seek for any information, excluding personal identification, about the genetic history of the child or surrogate mother when required, and to the extent necessary for the welfare of the child.147 However, the personal identification of the genetic parent(s) —surrogate mother, may also be provided in the interest of the surrogate child but only in cases of existence of life-threatening medical conditions requiring physical testing or samples of the genetic parent(s) or surrogate mother with the prior consent of the genetic parent(s) or the surrogate mother.148 (v) On the issue as to what shall be the regulatory mechanism to protect the child who goes to foreign parents and is exposed to abuse later on—Under the Draft ART Bill, 2010, it was mandatory for foreign couples to submit two documents—one was their country’s policy on surrogacy and the other stating that the child born from surrogacy will be permitted entry in the country as a biological child of the commissioning couple/individual. These twin conditions seemed to be reasonable as they were planned to deal with legal uncertainties which may crop up at the end of the foreign couple choosing surrogacy. While the Draft ART Bill 2010 was pending, in the meanwhile, with an intend to standardize the business, the Ministry of Home Affairs issued guidelines in this regard on July 9, 2012, whereby foreigners visiting India for commissioning surrogacy would need to apply for a Medical Visa instead of a Tourist Visa. According to the conditions put forth by the Home Ministry, foreign couples who intend to have an Indian surrogate should provide a letter from the Foreign Ministry of their

145

Id., s. 33(3). Id.,s. 34(10). 147 Id., s. 36(2). 148 Id.,s. 36(3). 146

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4 Surrogacy Arrangements: The Stakeholders Perspectives

Country or the Embassy in India, certifying that the home country recognizes surrogacy and the surrogate child born therefrom will be treated as biological child of the couple. This was imperative because a lot of countries such as Norway, Italy, France and Germany do not recognize surrogacy, and because in the recent past, as seen in some of the above-mentioned instances, a lot of babies born from cross-border surrogacy were denied acceptance as a biological child. The guidelines further required the commissioning couples to supply an undertaking that they would take care of the child and shall also produce a notarized agreement between themselves and to their home country. Further, the couple will have to apply to the FRRO/FRO to seek an exit permission, and before granting ‘exit’, the FRRO/FRO will see whether the foreign couple is carrying a certificate from the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the foreigner and that the liabilities toward the Indian surrogate mother have been fully discharged as per the agreement. A copy of the birth certificate(s) of the surrogate child/ children will be retained by the FRRO/FRO along with photocopies of the passport and visa of the foreign parents. Further, for drawing up and executing the agreement, the couple would be allowed to visit India on a reconnaissance trip on a Tourist Visa, but no samples can be given to any clinic during such visit. All these conditions have been provided only with a view to safeguard the interest of the child and secure his welfare. (vi) Further, on the issue that in case the surrogate mother decides to keep the baby herself, or the surrogate mother does not want the intended couple to raise the child, even though she does not want to raise the child herself, the Draft ART Bill, 2010, under Sect. 34 (13), provided that a surrogate mother shall not act as an oocyte donor for the couple or individual as the case may be, seeking surrogacy thereby, permitting only gestational surrogacy through IVF and embryo transfer (ET) to rule out genetic surrogacy in order to close the possibility of any contesting claims over the baby by the surrogate thereby preserving the contract. Further, the bill requires the surrogate mother to relinquish all her parental rights over the child.149 (vii) In order to protect the right of the child to live a healthy life free from man-made abnormalities and dealing with the issue regarding the surrogate mother or donor having some genetic disease which leads to a disability or chronic illness in the child and which was not detected in the process of surrogacy, then what would be the rights of such abnormal or disabled child and upon whom the responsibility will be laid with a view ensure the right of the child to live a healthy life free from man-made abnormalities the ART Bill 2010 provided that a prospective surrogate shall be tested for sexually

149

Id., s. 34(4).

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157

transmitted diseases as well as communicable diseases which may endanger the health of the child.150 The ICMR too provided for a similar guideline.151 The bill also cast an obligation on the surrogate mother to not to indulge in any act that would harm the fetus till the time of handing over the child to the intended person(s), after its birth.152 Further, under the proposed law, surrogacy could not be misused for sex selection153 and made such practice a criminal offense. It also imposed a bar on the ART clinics from advertising in respect of facilities of prenatal determination of sex. Further on the issue regarding the surrogate mother or donor having some genetic disease which leads to a disability or chronic illness in the child and which was not detected in the process of surrogacy, then what would be the rights of such abnormal or disabled child and upon whom the responsibility will be laid. The ART Bill, 2010 mandatorily required the intended parents to take the custody of the child irrespective of any abnormality that may occur in the child at the time of birth and any failure on part of the intended parents in this regard constituted an offense under the bill.154 (viii) With a view to prohibit the practice of transferring embryos to more than one surrogate mother at the same time, the Draft ART Bill, 2010 contained Clause 34(20) prohibiting couples and individuals seeking surrogacy to avail the services of more than one surrogate at any given time.

4.4.5

The Assisted Reproductive Technology (Regulation) Bill, 2014

The 2014 Bill, like its previous versions, vide Section 61(1) conferred legitimacy to the child born to a couple via ART procedure as if the child was born from the wedlock with the consent of both the spouses with similar rights and privileges as a child born through sexual intercourse has.155 Similar status was bestowed on the child born to an ever-married woman through the use of ART procedure considering him to be the legitimate child of that woman.156 Further, the bill clarified that the child shall be deemed to be the legitimate child of the commissioning couple whether married or unmarried in the case they get divorced or separated, before the child is born157 and even in the case where the child is born to an ever-married

150

Id., s. 34(6). ICMR, Supra note 2 at para 3.10.7. 152 Draft ART Bill 2010, Supra note 132 at s. 34(23). 153 Id., s. 25(3). 154 Id.,s. 34(11). 155 Assisted Reproductive Technology (Regulation) Bill, 2014, Supra note 25, s. 61(1). 156 Id., s. 61(2). 157 Id., s. 61(3). 151

158

4 Surrogacy Arrangements: The Stakeholders Perspectives

woman through artificial insemination of the stored semen of her dead husband.158 With a view to ensure the good health of the child, the bill also provided that in case of a donated ovum containing ooplasm from another donor ovum, both the donors shall be medically checked for sexually transmitted diseases like HIV/AIDS and other communicable diseases having the potential of endangering the health of the child and at the same time, requiring both the donors to relinquish all parental rights in relation to such child.159 It was further provided that a child shall not be granted Indian citizenship if born through surrogacy or egg donation to an OCI, PIO or a foreigner married to an Indian citizen. However, the child so born was held to be entitled to an Overseas Citizenship of India under Section 7A of the Citizenship Act, 1955.160 It was also mentioned in the bill where the donor of egg/sperm was an Indian and the other corresponding sperm or egg was that of a foreigner married to a person who is or whose children were entitled to an OCI citizenship, though the OCI was not of the biological parent, but shall be considered to be a legal parent of the child and similar was the case with NRIs married to foreign citizens.161 The provisions regarding the rights of the child to information regarding the donors or surrogates were the same as provided for in the 2008 and 2010 bills. Further to ensure the well-being of the child, the ART Bill 2014 provided for insurance of the child born through surrogacy at the time of signing the agreement, till the age of twenty-one years or till the time of custody of the child or children is taken through appropriate Insurance Policy like Jeevan Balya, whichever is earlier, for well-being and maintenance of the child or children and also made it mandatory for the commissioning parent to provide for insurance of abnormal child if abnormalities were detected in the child/children during the gestation period and compensation to be used for the development and growth of the child/children by the next in the family, in case of accidental death of the commissioning parents during delivery or in the process of delivery of the surrogate child.162

4.4.6

The Surrogacy (Regulation) Bill 2016

With a vision to protect the surrogate child, Surrogacy (Regulation) Bill 2016 provided that the intending couple shall not abandon the child born via surrogacy, whether in India or outside, for any reason such as any genetic defect, birth defect, any medical condition, subsequent defects, sex of the child or conception of more than one baby.163 The child born via surrogacy procedure shall be considered to be

158

Id., s. 61(4). Id., s. 61(5). 160 Id., s. 61(7). 161 Id., s. 61(8). 162 Id., s. 60 21(a) (iv) and s. 60 11(c). 163 Surrogacy (Regulation) Bill, 2016 Supra note 11, s. 7. 159

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159

a biological child of the intended couple along with being entitled to all the rights and privileges available to a naturally born child.164 The bill also included provisions against exploitation of surrogate child as it forbids any person, organization, surrogacy clinic, laboratory or clinical establishment of any kind to abandon, disown or exploit any child born via a surrogacy procedure.165 The bill classified the contravention of the above provision as an offense and laid down a punishment of imprisonment of not less than ten years along with a fine that may extend up to rupees ten lakh.

4.4.7

102nd Parliamentary Standing Committee Report on Surrogacy (Regulation) Bill, 2016

Considering the surrogate child’s rights to be of paramount importance which needs to be secured in all circumstances including unforeseen conditions, The 102nd Parliamentary Standing Committee Report on 2016 Bill recommended 1. The legislation to contain provisions regarding insurance adequate coverage for the unborn child. The committee observed that the bill did not provide for social security insurance in favor of the surrogate child in case of the death of the commissioning parents during pregnancy. It was of the view that mere insurance provisions would not suffice and the legislation should also contain provisions regarding bank guarantees and fixed deposits to take care of the needs of the surrogate child, should any unforeseen contingency arise like death or divorce of commissioning parents. It also recommended inclusion of the definition of insurance for surrogate child in the bill.166 2. The responsibility to take care of all the abandoned children born from surrogacy to be that of the State Government. 3. That the term ‘Surrogate child’ be defined separately in the act to differentiate them from children born to couples out of ART procedures.167 4. That a provision regarding breast-feeding of the surrogate child via Human Milk Bank services should be introduced as the child needs mother’s milk for adequate nutrition and well-being. The committee was of the view that breast-feeding by the surrogate mother will establish an emotional bond between the child and surrogate mother which will make it difficult for the surrogate to part with the child leading to complications.168

164

Ibid s.,7 (proviso). Id., s. 35. 166 Department Related (2017), Supra note 15, para 6.11. 167 Id., para 6.12. 168 Id., para 6.15. 165

160

4 Surrogacy Arrangements: The Stakeholders Perspectives

5. The committee observed that while the Draft Bill prohibited abandonment of a child based on sex, it, however, did not prohibited sex-selective surrogacy and sex-selective techniques as surrogacy could be used as a camouflage to beget a child of desired sex. The committee was of the view that not having any provision against sex-selective surrogacy would defeat the entire purpose bringing in a legislation to protect exploitation of surrogate mothers and surrogate children. Thus, the committee recommended that provisions regarding prohibition of sex-selective surrogacy should be incorporated but to harmonize it with Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.169 Therefore, it can be observed that The Surrogacy (Regulation), 2016, by not defining the term surrogate child and by not having provisions prohibiting sex-selective surrogacy neglected the basic regulations which were needed to achieve the objectives of the bill, such as curbing of unethical practices in the field of surrogacy and eliminating exploitation of the surrogate mother and child. The recommendations by the Parliamentary Standing Committee on the bill were comprehensive in nature and addressed not just financial care but also nutritional care of the surrogate child.

4.4.8

The Surrogacy (Regulation) Bill 2019

The 2019 bill on Surrogacy, as mentioned before, was a largely unmodified version the 2016 Bill, and hence, no new provisions regarding the rights of the surrogate child were introduced. None of the recommendations by the Parliamentary Standing Committee were incorporated in the bill, and this unmodified nature of the bill was a sign of the casual approach of the legislature toward surrogacy regulation in the country.

4.4.9

The Surrogacy (Regulation) Bill 2020

• Similar to the previous bills, this bill also provides that a child born as a result of surrogacy procedure shall be considered the biological child of the intended parents or the intended woman and shall be entitled to all the rights and privileges available to a natural child.170 Further, it lays down that abortion of a surrogate child would require the consent of the surrogate mother and

169

Id., para 5.150. Surrogacy (Regulation) Bill, 2020, Supra note 26,s. 8.

170

4.4 Proposed Surrogacy Bills in India Vis-a-Vis Rights …

• •

•

•

161

authorization from the appropriate authority in compliance with the provisions of the Medical Termination of Pregnancy Act, 1971.171 The bill defines ‘abandoned child’ as a child born out of a surrogacy procedure who has been deserted by his intended parents and declared abandoned after due enquiry by the appropriate authority.172 The bill forbids the intending couple and the intending woman to abandon the child born out of surrogacy, whether in India or outside for any genetic defect, birth defect, any medical condition, sex of the child or any defect that develops subsequently after birth or conception of more than one baby. The reasons provided above are not exhaustive in nature.173 The bill includes provisions against exploitation of a surrogate child as it forbids any person, organization, surrogacy clinic, laboratory or clinical establishment of any kind to abandon, disown or exploit any child born out of surrogacy procedure and also prohibits them to conduct sex selection and penalizes the same with a punishment that may extend till ten years of imprisonment or a fine of up to rupees ten lakh.174 To protect the interest of the child, the Surrogacy Bill 2020 makes it mandatory for the intending couple to possess a certificate of eligibility issued by the appropriate authority on the basis of the following criteria; the intending couple must be married and must be between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification; the intending couple have not had any child biologically or through adoption or through surrogacy earlier with the exception that the existing child of the intending couple is mentally or physically challenged or suffers from life-threatening disorder or fatal illness with no permanent cure and which illness is approved by the appropriate authority along with a medical certificate from a District Medical Board, with such other conditions as may be specified by the regulations. In addition to this, the bill also requires the intending couple to procure a certificate of essentiality issued by the appropriate authority after getting issued a certificate of medical indication necessitating from the District Medical Board along with an order concerning the parentage and custody of the child passed by the Court of the Magistrate of the first class or above, on an application made by the intending couple and surrogate mother and which order shall be treated as a birth affidavit of the child born.175

Despite the above provisions having been made as a part of the 2020 Bill, when it comes to preservation of the best interests of the surrogate child, it is disappointing that the recommendations of the Parliamentary Standing Committee Report on 2016 find no place in 2020 Bill. It is pertinent to note that the 2016 report 171

Id., Id., 173 Id., 174 Id., 175 Id., 172

s. 3 (vi). s. 2 (a). s. 7. s. 36(1) (c, d,g) & s. 36 (2). s.4 (iii) (a) (II).

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contained a comprehensive set of recommendations, given after an extensive amount of analysis and deliberations done by the committee in tandem with various stakeholders. While the only recommendation implemented is the prohibition of sex-selective surrogacy, there is no provision for the following essential requirements: • The bill does not provide for a comprehensive insurance coverage for the child including bank guarantees or fixed deposits to meet the contingent situations and is silent on any requirement of appropriate insurance policy for the maintenance of child till the age of 21 years at the time of signing the agreement. • The provision for adequate nutrition and breast-feeding has not been included in either of Surrogacy (Regulation) Bills of 2019 or 2020 even when it was clearly recommended by the Parliamentary Standing Committee Report in the Surrogacy (Regulation) Bill, 2016. Even the World Health Organization recommends breast-feeding within one hour of delivery and its continuance until 3–6 months for the better health of the child. • The current bill does not provide for the appointment of a ‘local guardian’/ custodian having the responsibility of taking care of the child till he or she is delivered to intended parents/parent to ensure the well-being of the child during the transition period. • Further, the bill lacks the provision requiring the Commissioning parties from countries other than India to prove via documentation, to the ART clinic that firstly, the country of which they hold the nationality permits surrogacy and that the child born from the surrogacy arrangement shall be permitted to enter into that country as a biological child of the commissioning couple, along with an obligation on the part of the commissioning parents to appoint a local guardian, who would be legally responsible for taking care of the surrogate during and after the pregnancy until the child is delivered to the commissioning parties or the local guardian. • Since the 2020, bill is silent on screening of couples regarding their socioeconomic background, criminal records, their health, age and family information check prior to commissioning of surrogacy, this places the child’s interest at considerable risk. This risk came to be highlighted when an Israeli pedophile, after taking custody of a girl surrogate child which he commissioned, left the country. It was only later that the Israeli authorities discovered that he had been criminally charged of child sexual abuse in the past. Therefore, a mandate can be imposed under the statute requiring parties to provide each other with their criminal history report for the previous 12 months period prior to entering into the surrogacy agreement and at least one of the following circumstances to exist, i.e., inability to carry a pregnancy or medical risk associated with pregnancy or inability to give birth, by the reason of gender identity, sexuality or any other reason, which regulation can also be seen under South Australian laws. • The current bill does not seem to be in consonance with obligations cast under the UNCRC, i.e., child right to know about his/her ancestry and right to family care, right to information, etc. Since under the bill, the child born as a result of

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surrogacy procedure has not been provided with any right to seek information upon reaching the age of 18 years regarding donors/surrogates excluding personal identification of the donor or surrogacy, except in cases where the child suffers from life-threatening medical conditions requiring physical testing or samples of the genetic parent(s) or surrogate mother with the prior consent of the genetic parent(s) or the surrogate mother. • The Parliamentary Standing Committee Report on the 2016 Bill also recommended that the State Government should take care of the abandoned child born via surrogacy procedure. However, the 2020 Bill does not include any provision regarding such a situation. The bill also does not address situations whereby the intended parents may not be able to take immediate custody of the child post its birth. There are no provisions for any immediate custodian in case of contingent situations arising. • Also, there is neither a mention of a surrogacy agreement in the bill nor is there any mention of writing down or recording of reciprocal promises made by the couple and vice versa. Thus, if a situation arises that a surrogate mother has refused to hand over the surrogate child to the intended couple, no legal recourse can be taken against her. A classic example of this was witnessed in the United Kingdom where in a case of surrogacy arrangement, the agreement broke down as differences between the surrogate and the commissioning couple cropped up. As a result, the surrogate refused to sign parental order which vests the custody and parentage of the surrogate child in the couple. The UK Family Court had no option but to adjourn the case leaving the new born child in limbo which led to his alienation from his biological parents. This is a classic case of abject denial of the rights and the welfare of the surrogate child. This is a case which could occur frequently in India as well. However, it is worthwhile to mention here, similar to the Child Parent Security Act (2020) of New York, the current bill also provides for a Pre-Birth Order which confirms the legal parentage of the intended parents at the time when the child is born. However, it also needs to mandate all the parties involved, to obtain representation of counsel in order to ensure that they are properly informed at the time of entering into the arrangement. Further with the vision to protect the rights of the surrogate mother and the needs of the surrogate child, the bill also mandates the designation of a guardian by the intended parents for the purposes of ensuring welfare of the child and the name of the guardian shall also be provided in the will signed by the intended parents which has to be executed prior to the implantation of the embryo in the surrogate. The will would also specify the name of the executor who shall perform the obligations of the intended parents under the surrogacy agreement.

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4.4.10 Recent Judicial and Legislative Developments in India (i) Judicial Developments: Maternity and Child Care Leave in Case of Surrogate Child In the middle of these slow legal developments which were proposed to meet the challenges inherent in surrogacy arrangements, the Indian Courts came up for the protection of children born out of surrogacy arrangements by granting legal recognition to the commissioning or intending mother as the legal mother on same equal footing as adoptive mother and thereby allowing them the maternity/child care leave in order to ensure the special care for the newly born child and to build emotional bonding or attachment between the mother and the child. Some of those leading cases of different State High Courts are being discussed hereunder. In the case of K. Kalaiselvi v. Chennai Port Trust176 where the commissioning mother an employee of the Chennai Port Trust, who lost her 20-year-old son in the year 2009 took up a surrogacy arrangement and was blessed with a baby girl. She applied for maternity leave which was rejected by the concerned authorities. Remaining dissatisfied, the mother filed a petition before the Madras High Court praying inter alia, she be held as the de jure mother of the surrogate child and be provided with all statutory maternity benefits as would be granted to a person in case of natural birth. On the other hand, the authorities resisted the petition by contending that since there was no specific rule/provision granting maternity benefits to such surrogate children, the same cannot be extended to the commissioning mother. The Madras High Court, however, held that the petitioner was eligible for leave which would be normally granted to persons who were otherwise eligible under the normal course in terms of Rule 3-A of the of the Madras Port Trust (Leave) Regulations, 1987 [i.e., the rules in question] as the purpose of the said rules was to ensure proper bonding between the parents and the child. The Court observed that even in adoption cases, the mother adopting the child, though she does not give birth, was entitled to maternity leave in order to ensure proper bonding with the mother and which was also recognized by the Central Government. Thus, the Court held that the petitioner was held entitled for maternity leave.177 Subsequently, in P. Geetha v. The Kerala Livestock Development Board ltd178 where the petitioner, a Dy. Gen. Mgr. employed with the Respondent Board, after remaining childless for around two decades entered into an arrangement with a fertility clinic in Hyderabad in order to have a baby through surrogacy. The birth took place on 18.06.2014 through a host mother and was immediately handed over to the petitioner, i.e., the genetic mother. With a view to take care and look after the

176

2013 (2) KLT 567. Kaur, Harleen. (2018). 178 2015(1) KLJ 494. 177

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new born baby, the petitioner submitted an application for maternity leave which was rejected on the premise that the relevant Staff Rules/Regulations did not allow maternity leave to employees on any other ground other than what was envisaged under ‘normal circumstances.' Being aggrieved, the petitioner filed the Writ Petition. The Court while allowing the petition held that the petitioner was entitled for the leave.179 In the case of Dr. Hema Vijay Menon v. State of Maharashtra180 also, the petitioner, a Central Railway employee, asked for maternity leave for the purpose of taking care of her surrogate child. The Railway Board rejected the same by holding that there was no provision in the extant rules providing for maternity leave to a mother having a surrogate child. The Board, in fact, directed the petitioner to apply for child care leave and which too came to be rejected at a later stage. The petitioner challenged this by filing petition before the Bombay High Court. While adjudicating the claim of maternity leave by the commissioning mother, the Court held the term ‘mother’ includes within itself a ‘commissioning mother securing a child through surrogacy’ and under the Railway Service (leave) Rules. After observing that ‘there is nothing in Rules 551(C), (E) of Child Adoption Leave and Rules, that would disentitle maternity leave to a women who has attained motherhood through surrogacy procedure, therefore, there should be no discrimination amongst women in entitlement to maternity leave on the ground using surrogacy to attain maternity.’ The purpose, meaning of maternity leave, is inclusive of prenatal and postnatal periods. With respect to the functions regarding postnatal maternal care, the role of the biological mother and the commissioning mother is the same such as rearing and taking care of the new born child considering the special needs of the child, extremely essential for ensuring good health, for breast-feeding and for building emotional bond with the child during the first year of its birth. Thus, it was held by the Court that granting postnatal maternity leave to the commissioning mother is in the best interest of the child so as to ensure early care, healthy growth and survival of child and denial of the same shall frustrate the very purpose of maternity leave, and therefore, the Court directed Central Railway to grant maternity leave for 180 days. Further, in the case of Rama Pandey v. Union of India & Ors.,181 the High Court of Delhi, in a similar matter, while adjudicating the claim of maternity leave by the commissioning mother, held that a commissioning mother needs to bond with the child and at times takes over the role of a breast-feeding mother, immediately after the delivery of the child and that the commissioning mother would become the principal caregiver upon the birth of the child and plays a very important role in rearing the child. In the instant case, the petitioner, who was a government employee and was unable to bear a child, opted for having one through surrogacy. Upon being blessed with twins, she applied 6 months maternity leave as well as

179

Kaur, Harleen. (2018) supra note 177. 2015 SCC OnLine Bom 6127. 181 2015 221 DLT 756. 180

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child care leave for three months which were in accordance with the extant rules. However, the same was denied on the premise that she did not have a biological child and therefore the leave was not admissible. The fact that she did not undergo any mental and physical fatigue and stress, both during and after pregnancy, was much stressed by the employer. While adjudicating the claim of maternity leave by the commissioning mother, the Court observed that pregnancy has two stages: prenatal and postnatal, no bifurcation of maternity leave has been provided by the rules of the government meaning thereby, and a female might avail the whole of maternity leave in prenatal stage or she might avail the whole in postnatal stage or she may divide her leave in both these stages. Though many female employees avail a large proportion of maternity leave in postnatal stage as it involves taking care and nurturing of a new born, therefore, postnatal stage is common to all females having a child, irrespective of the route they take to bear the child. While employing a legal technique known as ‘updating principle’ in the present case, the Court further took note of the fact that advancement in science and changes in societal attitude often raise concerns, which require Courts to infuse fresh insight into existing law. Accordingly, the Court ruled that women having child through surrogacy are also entitled to avail the maternity leave. However, a little keener scrutiny is required in such cases while granting leave in prenatal stage and while relying upon Article 39 (f) of the Constitution of India, 1950 which relates to development of children in a healthy manner… The claim of maternity leave was allowed by the Court observing that since the term ‘maternity leave’ has not been defined under the existing Central Government Service Rules, 1972 (Rule 43). Therefore, in the absence of any such definition, nothing could prevent the commissioning mother from availing maternity leave.182 Also, in the case of Pooja Jignesh Doshi v. The State of Maharashtra and Ors183, the High Court of Maharashtra discussed the concept of motherhood and maternity relying on its judgment in Hema Vijay Menon case. Without going into the merits of the case, the Court observed that the reasons behind granting maternity leave to pregnant women are firstly, for the protection of the dignity of motherhood and secondly, to ensure the well-being of the child and thirdly, to ensure that a healthy bond develops between the child and the mother. The Court held that it was unfair to differentiate between a woman who begets a child biologically and one who begets through surrogacy as it amounts to insulting the womanhood and motherhood of the woman who raises a surrogate child. The Court also observed that if the government can grant maternity leave to an adoptive mother, the same can certainly be granted to a mother who begets a child through surrogacy. Accordingly, the Court held the petitioner entitled to the relief sought for in her petition. Recently, the Himachal Pradesh High Court in Sushma Devi v. State of Himachal Pradesh and others184 held that a surrogate mother is entitled to

182

Kaur, Harleen. (2018) supra note 177. 2019 SCC OnLine Bom 1433. 184 CWP No. 4509 of 2020. 183

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maternity leave benefits under Rule 43(1) of CCS (Leave) Rules, 1972. It was opined by the Court that it would be an ‘insult to womanhood’ if one distinguishes between motherhood as a result of surrogacy and natural motherhood. It was further observed by the Court that motherhood does not end with the birth of the child and thus a commissioning mother cannot be denied paid maternity leave. Therefore, provisions regarding maternity leave should be incorporated in the bill so that both the surrogate mother and the commissioning mother are not discriminated just because they were involved in a procedure that was not natural. (ii) Legislative Developments In the light of the above consistent wider interpretation of the Central Government service rules on maternity by Indian Courts, the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training vide Office Memorandum, No.13018/1/2014-Estt(L) dated 01.04.2016 proposed a 180 days child care leave to all the Central Government female employees attaining motherhood either as surrogate mother or as intending mother, in addition to allowing male Central Government employees attaining fatherhood as intending or commissioning fathers using surrogacy, to avail paternity leave. Further, considering the special health needs of a disabled child (surrogate child or otherwise), a female employee (either surrogate mother or an intending mother) working with the Central Government has been allowed child care leave of 730 days or two years during the entire service span, irrespective of age limit of 18 years of the child.185 It is opposite to mention here, while all earlier Government Orders/notifications and judicial pronouncements dealt only with granting of maternity leave or child care leave to the intending or commissioning mother who used surrogacy to have child and not to surrogate mother, notification dated 01.04.2016 has also focused on the surrogate mother. Maternity Benefit (Amendment) Act, 2017. The primary legislation in India regulating the provision of maternity benefits for female employees is the Maternity Benefit Act, 1961 which is applicable to all establishments which are factories, mines, the circus industry, plantations and shops or government establishments employing ten or more persons, except the employees who are covered under the Employees’ State Insurance Act, 1948. With a view to ensure adequate pre/postnatal health care of the mother as well as the child, various amendments in the Maternity Benefit Act 1961 have been introduced vide the Maternity Benefit (Amendment) Act, 2017 which has come into force w.e. f. 1 April 2017. Amongst various amendments introduced, the most important amendment with regard to the surrogate child is that for the first time a provision 185

Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training Proposals on Child Care Leave (CCL) and Maternity Leave –DOPT, Office Memorandum, No.13018/1/2014-Estt(L) 01.04.2016, Proposals on Child Care Leave (CCL) and Maternity Leave – Reg., April 5, 2016. Available at http://it.delhigovt.nic.in/writereaddata/ Cir201655282.pdf. Accessed April 20, 2018.

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has been introduced for adopting and commissioning mother/s to avail a letter and spirit while dealing with the applications for maternity leave from commissioning mothers.186 Also, the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India, New Delhi, vide an office memorandum dated January 29, 2018, advised all Ministries/Departments to give wide publicity to the contents of Delhi High Court order in Rama Pandey v. Union of India & Others till the time the competent authority make necessary amendments in CCS (Leave) Rules for the purpose of laying down a clear and uniform policy in this regard and to implement the order in letter and spirit while dealing with the applications for maternity leave from commissioning mothers.187 The object being welfare and upliftment of the newly born, what is imperative is that a bond should develop between the child and the mother, irrespective of the fact that the child is surrogate or not. Indeed, this kind of progressive liberal interpretation of Indian judiciary coupled with such legislative course of action is a remarkable step in taking forward India’s commitments and obligations under the Constitution of India, the UN Convention on the Rights of Child and various other instruments for the protection and enhancement of most basic human rights of the children born via surrogacy as well as ensuring the welfare and health of the child’s mother.

4.5

From the Perspective of Intended Parents

When a couple commissions surrogacy, it is due to their yearning to become parents and to start a family. As surrogacy cases grew during late 19th and the early twentieth century, many western countries imposed a ban on the procedure due to various ethical, moral, social and legal issues associated with it. This gave a rise to cross-border surrogacy cases where couples from one country started commissioning surrogacy in another country. Most of the times, the couple hailed from a western country, whereas the country where the surrogacy was to be commissioned would mostly be a developing or a third world country. A prime reason for this was low costs coupled with the lack of legislative framework regarding surrogacy in these countries along with them to procreate and to rear the family in view of the fact that most of the countries were allowing only married homosexuals thereby ignoring the rights of single parents, homosexuals and transgenders to become parents. However, the lack of legislative framework which worked to the benefit of 186

The Maternity Benefit (Amendment) Act, 2017s. 5(4): A woman who legally adopts a child below the age of 3 months or a commissioning mother (who uses her egg to create an embryo to be implanted in another woman)will be entitled to maternity benefit for a period of 12 weeks which will be calculated from the date the child is handed over to the adopting or commissioning mother. 187 Available at http://documents.doptcirculars.nic.in/D2/D02est/13018_6_2013-Estt-L-29012018. pdf.

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commissioning couples/intended parents backfired since there was no coherence in different jurisdictions regarding cross-border surrogacy laws which in turn led the intended parents to face various complications in their native countries since the child born via cross-border surrogacy procedure was not accorded citizenship by the country of the intended parents.188 The cases of Baby Manji Yamada and Jan Balaz clearly exposed the problems which the intended parents faced due to a lack of proper legal framework thereby paving the way for an urgent need not just for the enactment of legally binding surrogacy laws across jurisdictions, but also a legal regulatory framework in international law to which all its signatories could adhere to while framing their own laws.

4.5.1

Intended Parents and Their Right to Procreation in India

The right of a person to procreate in India falls under the right to life and personal liberty enshrined under Article 21 of the Indian Constitution. In the case of B.K. Parthasarathi189 the High Court of Andhra Pradesh, while following the judgments of the United States Supreme Court in the case of Roe v. Wade190 wherein it was held ‘that a citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters’ and another case of Skinner v. Oklahoma191 which characterized ‘the right to reproduce as one of the basic civil rights of man’, recognized the right to procreation to be implicit in the right to privacy and held “the personal decision of the individual about the birth and babies called ‘the right of reproductive autonomy’ is a facet of a ‘right of privacy.’” In 2017, the nine-judge bench Supreme Court of India in the K.S. Puttaswamy v. Union of India192 held that right to privacy of an individual is protected under Article 21 which includes a person’s right to reproduction and the right to sexual orientation. This has been reiterated by the Court in the cases of NALSA v. Union of India193 with respect to transgenders and in the case of Navtej Singh Johar v. Union of India194 with respect to homosexuals.

188

Henaghan Supra note 48. AIR 2000 AP 156. 190 410 U.S. 113. 191 316 U.S. 535 (1941). 192 (2017) 10 SCC 1. 193 AIR 2014 SC 1863. 194 AIR 2018 SC 4321. 189

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Proposed Surrogacy Bills in India Vis-a-Vis Intended Parents

Currently, there is no statutory law governing surrogacy in India except for the 2005 ICMR guidelines on Assisted Reproductive Technology which remain as the only regulation in force, although the said guidelines are unenforceable in the Court of Law. These guidelines permit only heterosexual couples and single women to avail surrogacy. Also, these guidelines do not bar foreigners to avail surrogacy services from Indian surrogates. Subsequently, while various draft Assisted Reproductive Technology (Regulation) Bills and Draft Surrogacy (Regulation) Bills have been introduced, but they have not seen the light of the day. However, one can gauge the intent of the legislature from the various bills so proposed. While the Assisted Reproductive Technology (Regulation) Bill, 2010 permitted Indian couples, singles as well as foreigners to avail surrogacy in India, the 2014 ART Bill only permitted people of Indian origin (OCIs/PIOs/NRIs) to avail surrogacy procedures while ignoring homosexuals, single men and transgenders. In fact, the manner and the extent to which the global concerns with regard to the rights of intended parents have been taken care of in terms of India’s proposed visions under various proposed legislations can be seen as under:

4.6.1

The Surrogacy (Regulation) Bill, 2016

• The Surrogacy (Regulation) Bill, 2016 allowed only Indian heterosexual married couple to avail surrogacy services and barred couples who were capable of procreating normally. Therefore, clearly NRIs/PIOs/OCIs were not permitted vide the 2016 Bill to avail surrogacy services in India.195 Further, the bill mandated the intended couple to prove infertility in order to avail the services of a surrogate196 by describing infertility as a condition when a couple was not able to conceive after five years of unprotected coitus.197 However, this definition did not cover all the possible situations due to which a couple could not procreate as well as other medical complications that can hamper in successful pregnancies such as diabetes, hypertension and even multiple fibroids in the uterus. • Under the bill, the intended couple and the surrogate had to obtain a certificate of essentiality198 and a certificate of eligibility199 for undergoing the process. However, the bill failed to specify the time limit under which appropriate 195

The Surrogacy (Regulation) Bill, 2016, Supra note 11, Id., s. 4(iii)(c)II. Id. s. 4(iii)(a)(I). 197 Id s. 2(p). 198 Id., s. 4(iii)(a)(I-III). 199 Id., s. 4(iii)(c) (I-IV). 196

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authorities needed to grant certificates. It also did not specify a review or appeal process in case the application for surrogacy was rejected by the authority. • The bill laid down the requirement of a written consent of the surrogate mother and an authorization from the appropriate authority for the process of abortion.200 Further, it stated that the surrogate mother cannot be coerced into aborting the fetus.201 However, there was no mention of authorization or consultation from the intending parents even when the bill explicitly mentioned that the intended parents will be considered as biological parents of the surrogate child and will also bear the responsibility of bringing up the child. Though this was in line with the provisions of the Medical Termination of Pregnancy Act, 1971 which states that abortion in the above-mentioned cases can only be allowed on the consent of the pregnant woman and no one else, however, in case of surrogacy, the situation is much more complex where two parties are involved. Therefore, the provisions of the bill did not take into account the complexities of the process of surrogacy while drafting this particular provision.

4.6.2

102nd Report of the Parliamentary Standing Committee on the Surrogacy (Regulation) Bill 2016

• Observing some inherent flaws in the surrogacy regulation Bill, 2016, the 102nd Report of the Parliamentary Standing Committee on the Surrogacy (Regulation) Bill 2016 put forward its recommendations which have already been discussed in the chapter-III of this book titled ‘Surrogacy in India’. However, some of the recommendations proposed for the welfare of the intended person can be understood hereunder: • The committee observed that by limiting the option of surrogacy to heterosexual couples only, the bill overlooked a large section of the society and denied the opportunity to have a biological child by an alternative method to widows and divorcees. Further, it also observed that by keeping live-in couples out of the purview of availing surrogate services, the bill was too myopic in its approach and too narrow in its understanding of the modern society.202 • Since Clause 4(iii)(c) (II) of the bill provided that the couple in order to be eligible for availing surrogacy services should be Indian citizens, the committee recommended for extending the services of surrogacy to NRIs, PIOs and OCIs, as their country of origin was India. It was also recommended by the committee that a mechanism needs to be put in place for background check of the NRI/PIO/ OCI couple commissioning a surrogacy in India along with documental scrutiny 200

Id. s. 3(vi). Id., s. 9. 202 Department Related, supra note 15, para 5.40. 201

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by the appropriate authority for granting permission to avail surrogacy services in addition to ‘declaration’ or an ‘NOC’ by the commissioning couple stating that the child born via surrogacy shall bear the same nationality as that of the commissioning couple.203 • Looking into Clause 2(p) of the said bill which defined infertility as ‘The inability to conceive after five years of unprotected coitus’ as well as Clause 4 (iii)(c)(II) which specified that the intended couple should be married for at least five years without having a child to avail for them to be eligible for the service, the committee opined that the said requirement violated the right to reproductive autonomy of people in and was not based on any due diligence or an understanding of ground realities of the society and it was also not based on any sound medical reasoning.204 Unfortunately, the recommendations of the 102nd Parliamentary Standing Committee Report on the 2016 Bill were not heeded to by the legislature while introducing the Surrogacy (Regulation) Bill 2019.

4.6.3

Recommendations of the Select Committee on the Surrogacy (Regulation) Bill, 2019

• Since the Surrogacy Bill 2019 was mostly identical to the 2016 Bill and the recommendations of the 102nd Parliamentary Standing Committee Report on the 2016 Bill were also not heeded to by the legislature, some of the recommendations put forward by the Select Committee on the Surrogacy (Regulation) Bill, 2019 in the interest of the intended parent/s were as under: • Looking into the definition of infertility under the bill as being ‘unable to conceive a child till five years of unprotected sexual intercourse between a heterosexual married couple,’ the committee members were of the opinion that the time frame of five years was too long for a couple to wait for a child. The members also looked into the definition of infertility as provided by the World Health Organization (WHO) which stipulates a time frame of 12 months.205 • Further, on the requirement to obtain a certificate of infertility from District Medical Board under Clause 4(iii)(a)(I), the same was looked upon being as offensive and a breach of the person’s Right to Privacy under Article 21 of the Constitution. Also, the committee believed that the time frame provided by the 2019 Bill was too long period particularly in cases of absent or damaged uterus

203

Id., para 5.42. Id., para 5.44. 205 The Select Committtee Report (2020), para 3.9. Available at https://prsindia.org/files/bills_acts/ bills_parliament/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf. Accessed 4 March 2020. 204

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and removal of uterus as a result of cancer, etc. Therefore, in light of the above reservations, the committee recommended that Clause 2(r), which defined intending couples ‘as a couple who have certified medically infertile’ be amended and should instead read as follows: • ‘intending couple means a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy.’206 • Further, the committee also took note of the situation where a single person may want to avail surrogacy such as a young widow who cannot carry a child in her womb due to the fear of stigmatization from the society. Similarly, there might be a case of a divorced woman who does not want to remarry but wants a child. Therefore, it recommended for consequential amendments to the bill so that a surrogate can carry a child for a heterosexual couple as well as a single woman.207

4.6.4

The Surrogacy (Regulation) Bill, 2020

Though the 2020 Bill has tried to incorporate much of the recommendations of the Standing Committee Reports of 2016 and 2019, it also gives opportunities to PIOs/NRIs/OCIs also to avail of the facility in India which was previously only available to Indian citizens, in addition to allowing single women between the age of 35–45 years who are either widows or divorcees into the surrogacy fold.208It is also worth noticing, while earlier bills mandated that no surrogacy procedure could be performed, availed or undertaken except when the couple was proven infertile, the 2020 Bill, vide Sect. 4(ii)(a), provides that the surrogacy cannot be undertaken, performed or availed except when the intending couple has a ‘medical indication necessitating gestational surrogacy’ and further, the couple of Indian origin or the intending woman who wish to opt for intend to avail surrogacy must apply and obtain a certificate of recommendation from the Board in the manner prescribed. In addition, unlike the Surrogacy (Regulation) Bill 2016, the Surrogacy (Regulation) Bill 2020 contains a provision of appeal by the intended couple or the intending woman against the rejection of their certificates under Sect. 4. The said bill also provides an opportunity of appeal to the surrogacy clinic against an order of rejection/suspension/cancelation of registration of their application by the appropriate authority, under Sect. 13, within a period of thirty days from the date of communication of the impugned order.209

206

Id., para 4.20&4.23. Id., para 3.21. 208 The Surrogacy Regulation Bill 2020, Supra note 26. s.4(iii)(c)(I). also see s.2(g)&s.4(ii)(a) proviso. 209 Id., s.14(1). 207

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However, in giving the opportunity to rear family via surrogacy, the bill neglects a huge chunk of the society by leaving out single unmarried women, single unmarried men, gays, lesbians and transgenders and live-in couples which may amount to violation of Article 14 of the Constitution, i.e., the Right to Equality as well as a violation of Right to Reproductive autonomy granted under Article 21 of the Constitution. In the next chapter, the author will be analyzing the position of homosexuals, transgenders, single men and live-in couples with respect to surrogacy under the various regulations proposed in India as well as internationally, by discussing the latest judicial and legislative trends with respect to reproductive autonomy and recognition of the status of members belonging to such community. The Surrogacy (Regulation) Bill, 2020 like the previous ART Bills and the Surrogacy (Regulation) Bills of 2016 and 2019 also seems to have taken a narrow approach by keeping the doors of surrogacy shut for intended parents of foreign nationality. In this regard, it becomes opposite to state that once we accept that within a comprehensive regulatory administrative framework, surrogacy can be practiced, there is no reason to deny foreigners the relief from the agony of the infertility. The need of the hour is not to have selective barring foreign nationals but to establish a strong mechanism which ensures that the rights of the surrogate mother and child are protected. The decision of the Ministry of Home Affairs to debar foreign nationals from commissioning surrogacy in India was probably due to the complications revolving around grant of citizenship due to variation in approach of different countries toward the practice of surrogacy. However, barring foreigners from commissioning surrogacy in India may lead the entire activity involving foreigners going underground, thereby leading to greater exploitation of surrogate mothers.

4.7

Model Surrogacy Agreement Expected in India

In addition to the need for having an effective surrogacy law in India, there is also a need to have a carefully drafted surrogacy agreement which ensures that the rights and interests of all the parties involved in surrogacy arrangements are respected as well as their duties are clearly demarcated. Some of the rights and duties which are extremely basic in nature and need to be included in every model surrogacy agreement can be understood as under: Qua the surrogate mother: • In case the legislation chooses to be commercial in nature, in that scenario the intended parents must be made duty bound to place sufficient funds in the bank account of the surrogate mother upon execution of the surrogacy agreement and before she begins the necessary medication required for the surrogacy procedure, to cover her initial expenses and her compensation which should be done

4.7 Model Surrogacy Agreement Expected in India

• • • •

•

• •

•

•

175

under the seal of the appropriate authority, and the proof of such transfer should be given to the surrogate. In fact, commercial surrogacy can made State regulated also by fixing a basic amount of compensation as to prevent the monetary exploitation of the surrogates which will be similar to the practice followed in Israel where, vide The Embryo Carrying Agreement (Agreement Authorization & Status of the Newborn Child) 1996, a government-appointed committee first approves and then also supervises the surrogacy arrangement and thereby ensures the legality and the validity of the agreement and protects the rights of all the stakeholders involved. The intended parents should undergo necessary testing to detect if they suffer from any sexually transmitted diseases including but not limited to HIV and hepatitis, the results of which should be made known to the surrogate mother. A fixed payment after two positive blood tests confirming pregnancy and an ultrasound confirming fetal heartbeat. Post that, a fixed compensation during every month of pregnancy should be given to the surrogate. If the pregnancy is terminated due to miscarriage or any other complications due to no fault of the surrogate mother, then she should be allowed to keep the base compensation and other subsequent payments received. The intended parents should pay for the loss of income incurred by the surrogate due to medical screenings, child care, loss of income during recovery process postdelivery and the lost income of her husband if he has to take care of the surrogate. Further, if the surrogate and her husband are not able to continue caring for their children and maintain their household due to her medical condition and she needs assistance of any individual who requires compensation, then the intended parents should agree to pay adequate compensation to her. If the surrogate has to go through a caesarian section for medical reasons, then a fixed amount should be provided to her to cover for her pain, loss of health, suffering and inconvenience. The intended parents should agree to pay for a life insurance policy for the surrogate mother including premiums and should maintain it for up for at least eight weeks after the birth of the child or should subscribe to a health insurance policy which provides coverage to major medical treatments and hospitalization expenses. Mandatory psychological counseling of the surrogate mother should be resorted to in order to make her consent free, informed and voluntary. She should be given time to consider the pros and cons of the action before proceeding so as to avoid psychological tribulations later on. In fact, there is need to opt for a wider approach toward the process of counseling and to look at it as an ongoing and continuous process for surrogate and also for the commissioning parent(s). The intended parents should be made to pay for surrogacy-related counseling of the surrogate and also for the counseling of her husband and children during the period of her pregnancy. The funds provided for counseling should available for

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up to one year following the birth of the child and should be used by the surrogate for the purpose of counseling only. • The surrogate should have the right to know the provisions of the agreement. If she is illiterate and cannot read or write or comprehend the provisions of the agreement, then the same should be communicated to her by her legal counsel or a person of her choice in the manner and language which she understands. Qua the intended parents: • The right of the intended parents to go through the psychological evaluation of the surrogate and the right to terminate the agreement if the psychological evaluation is unfavorable • The right to attend all the prenatal appointments of the surrogate and the right to be present and in case of their non-availability the local guardian appointed under the agreement • The right to have all the medical reports of the surrogate including reports regarding sexually transmitted diseases prior to the commencement of the surrogacy procedure. The right to terminate the surrogacy agreement if the reports show that the surrogate is not medically fit to carry out the surrogacy • The right to know the medication and additional supplements being provided to the surrogate by the physician or obstetrician • The right to get parentage testing of the child done after the surrogate has conceived the child to determine whether the child is not the genetic child of the surrogate and her husband. If the test determines the surrogate and her husband to be the genetic parents and the conception did not occur due to a medical error, the surrogate will be in material breach of the agreement, and the intended parents will have all the remedies available in law or equity. • The intended parents have a right to receive the custody of the child as soon as the child is conceived by the surrogate. In case the legislature chooses to legalize only altruistic surrogacy arrangements, while the aforesaid rights and corresponding obligations should still remain, the compensatory aspects can be done away with. However, it should be ensured that the surrogate mother is made entitled to medical expenses and such other prescribed expenses which are incurred by her and which shall also cover postnatal care, out of pocket expenses, loss of work-related income, premium payments for insurance claims, counseling costs, fee for care of dependents and pets, purchase of groceries, maternity clothes, etc., and the same should be clearly incorporated in the agreement in writing containing a lawyer's certificate certifying that both parties have obtained independent legal advice on the agreement along with a counselor's certificate verifying that both parties have undergone the process of counseling by an accredited counselor.

4.8 Need of an International Regulation for Surrogacy

4.8

177

Need of an International Regulation for Surrogacy

While surrogacy is a global issue and India is taking its initiative to regulate it, nevertheless, there is a need for a global regulation and not by any one nation alone. Legislation at an international level to regulate and establish an ethical practice of surrogacy globally is the need of the hour. At the same time, this legislation should also keep in mind, the best interest and welfare of children born from surrogacy. Some believe that the most relevant International Convention, i.e., The Hague Convention on Protection and Co-operation in respect of Inter country Adoption (1993) to which 189 countries are party could be possibly extended to address the various issues surrounding international surrogacy.210 However, the challenge in its application is that it was not enacted keeping surrogacy in mind. Adoption under the convention is reserved to children who are ‘orphaned, abandoned or surrendered.’ In fact, the convention prohibits payment to the surrogate mother and does not provide for any mechanism to deal with ‘state’ or ‘parenthood’. Article 4 (c) states that commercial adoptions are prohibited under the convention.211 Therefore, the cases of international surrogacy would not fall within its ambit. Further, while Article 4 (c) (4) states that consent of the mother must be given after birth of the child, in surrogacy cases, the surrogate mother gives her consent before the child has even been conceived. Then, Article 4 (b) of the convention lays down the principle that consideration must be given to the possibility that the child may be placed in the state of origin, this will not apply to many surrogacy cases, particularly international cases. Further, Article 29 of the Convention sets out that there should be no contact between the prospective adopters and the child’s parents. This is unlikely to be workable in cases of surrogacy contracts where the commissioning couple has to enter into the surrogacy arrangement with the surrogate prior to conception. Despite the above, the convention can be set as a relevant example of the type of regulation that can be brought about to deal with children’s issues internationally and to curb child trafficking and exploitation. In April 2010, the Council on General Affairs and Policy of the Hague Conference on Private International Law ‘acknowledged the complex issues of private international law and child protection arising from the growth in cross-border surrogacy arrangements’ and invited the Permanent Bureau, the Secretariat of the Hague Conference responsible for researching issues undertaken by the Conference, to generate a report on the matter. Preliminary reports were produced in March 2011 and March 2012, and the Hague Conference on Private International Law Special Commission on Surrogacy rejected the Hague Convention on Protection and Co-operation in respect of Inter country Adoption (1993) as the appropriate instrument for regulating surrogacy. 210

Trimmings and Beaumont (2011). Convention On Protection Of Children And Co-Operation In Respect Of Intercountry Adoption (1993), art 4 (c) (3), Available on https://assets.hcch.net/docs/77e12f23-d3dc-4851-8f0b050f71a16947.pdf.

211

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Thus, at present, there is no international instrument which regulates the surrogacy, and in the absence of international regulation, the issue issues of conflict of laws will continue to occur. The initial step in this direction has been taken by the Hague Conference on Private International Law. The primary focus of the conference was to determine the status of surrogacy arrangements under Private International law and also to ascertain the status of child born via international surrogacy. The Hague Conference has identified the basic criteria that would need to be covered by a comprehensive International and Multinational Agreement. It has suggested for a uniform set of rules on the jurisdiction of Courts or other authorities to make decisions regarding legal parentage which would have a general effect, uniform rules on applicable law, corresponding rules providing for the recognition and enforcement of such decisions (or authentic acts, e.g., a birth certificate), uniform rules on the law applicable to the establishment of legal parentage by operation of law or by agreement and applicable law or recognition principles concerning the establishment of parentage by voluntary acknowledgment.212 When discussing cross-border surrogacy, one cannot escape the suggestions put forth by Dr. Katarina Trimmings and Professor Beaumont to whom grant was awarded by the Nuffied Foundation in July 2010 to conduct a study to determine the status of surrogacy agreement under the private international law. The object of this research was similar to that undertaken by the Hague Conference in 2011, i.e., to explore the possible types of international regulation of surrogacy arrangements and to prepare a document that could assist in preparation of possible future International Convention on surrogacy. The project was carried out in collaboration with the Hague Conference on the Private International Law, and Dr. Katarina Trimmings and Professor Beaumont suggested that an international framework for surrogacy should not only aim to unify the conflicting domestic laws of countries, but should also aim toward establishing a framework inviting international cooperation for setting up safeguards and procedures for Courts and other administrative authorities, etc., which would act as a guideline for the laws of a nation and in case of a conflict of legislations, or in the absence of a guideline on a specific issue, provide default provisions which would operate and hold the field. In this regard, certain recommendations which were proposed were as under: • Aspects to be covered by the proposed convention It was recommended that the legal structure should be in the form of a convention and should incorporate fundamentals such as: Establishment of a Central Authority for setting up contact with countries from the Hague Adoption Convention.213 This authority should also be responsible for cooperating with its foreign counterpart; regulating fertility clinics and agencies falling within its jurisdiction by setting up 212

Hague conference on Private Internationall Law (2011). Private International Laws Issues Surrounding the Status of Children, including issues arising from International Surrogacy Arrangements 3.Prel. Doc. No.11. http://hcch.net/upload/wop/genff2011pdle.pdf. Accessed 20 April 2015. 213 Trimmings and Beaumont, Supra note 207 at 641.

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accreditation systems in order to monitor and assess compliance of conditions set out in international human right treaties; making recommendations to Courts with regard to grant of parental orders214; assist commissioning parents in obtaining nationality for the child(ren) born via surrogacy arrangements, if not granted automatically.215 In addition to above, the Authority should also be responsible for obtaining a confirmation to the effect that both parties are aware of the consequences of surrogacy agreement and have obtained their independent advice on it. The authority should confirm that the surrogate mother is healthy, medically and otherwise, in order to trim down the risk of harm to her and the baby during pregnancy or after birth.216 The surrogate should be proved to be free from any sexually transmitted disease.217 The authority should obtain confirmation that the commissioning parent(s) has/have not been found guilty of violent crimes or crimes of a sexual nature or been found to be an unfit parent to other children in their care, if applicable.218 The authority be required to scrutinize and call for proof of all payments made in relation to compensation and medical or other expenses related to the surrogacy219 and should also be able to provide assistance to the parties to the surrogacy agreement in dealing with any emotional issues that may arise. Upon forwarding a report regarding compliance of all conditions set out in the convention to the concerned department, Courts, etc., the parental order may be granted after referring to the same.220 Trimmings and Beaumont further suggested the setting up of a specialized Court or a specialized seat of the High Court of the country to be granted exclusive jurisdiction to grant parental orders in domestic and International surrogacy matters with the Presiding Officers having appropriate training and experience in relation to child care matters. It was further suggested that granting of parental orders should not be made at an administrative level but at a judicial level. • A uniform set of rules, terms and conditions should apply to surrogacy arrangements. Further, it was suggested that the best interest of the child must be the primary consideration in determining whether the parental order should be granted or not. The proposed convention should provide a modern definition for a legal mother and father taking into account the medical technology advances of ART births, the changing family formations and advances in legal acceptance of gay marriages, partnerships and unions. It should provide for the establishment of legal parentage 214

Ibid. Lin T (2013). 216 Ex Parte WH (2011) 6 SA 514 (GNP) para 67. 217 Ibid. 218 Id. para 68. 219 Id. Para 64. 220 For example: a letter from the parties’ legal advisors, a medical report and written confirmation that the child will receive the necessary citizenship and nationality of the intended country of residence and failing that country, of the country of birth. 215

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by agreement between all role players and provide that the surrogate born child will for all purposes, once the parental order is granted, be considered the legal child of the commissioning parents with all rights and responsibilities, as applicable to biological or legally adopted children, flowing therefrom. The proposed convention must not exclude any person from obtaining legal parentage through surrogacy solely on the basis of the listed grounds of discrimination including race, sex, marital status or sexual orientation, provided that they fulfill all the criteria set out in the convention in order to be considered as a fit and proper parent. Member countries should commit toward enacting domestic laws in terms of which altruistic surrogacy, at the very least, gets recognized and becomes regulated in a manner which makes it possible to award parentage to the commissioning parents. In the absence of domestic laws or in the case of conflict between laws, the rules set out in the convention should apply against the backdrop of the best interests of a child being of paramount consideration It was suggested that the provisions should also be made for in cases where the either of the commissioning parent decides to relinquish his or her parental responsibilities and rights either before or after the birth, but before the granting of the parental order, the other parent may obtain sole rights. If either parent were to relinquish parental responsibilities and rights after the parental order is granted, this may only be done in terms of the child custody laws of the child’s country of residence. If either of the commissioning parents were to die before the birth of the child, the surviving parent should be granted sole custody. In the instance of both commissioning parents’ death or should both wish to opt out of the parental arrangement, the birth mother ought to be given first option to accept legal parentage of the child. In the event of her not wishing to accept the parental responsibilities and rights of the child, a provision should be made for the child to be made available for adoption, with the written consent of all relevant parties, that is, the commissioning parent(s), the birth mother, and in case she is married or in a life partnership, then the consent of her spouse or life partner be taken. It was also suggested that the child may be made available for adoption in his or her birth country or intended country of residence, at the election of his or her caregiver, and will assume the nationality of the respective country. If the surrogacy arrangement was commercial one, it was suggested that a maximum compensation payable to the surrogate mother for bearing the child, over and above expenses, must be stipulated by the government of the country. The rates that may be charged by agencies must be strictly regulated and be open for public scrutiny. The fee paid to an agency may not be grossly disproportionate to the compensation paid to the surrogate mother.221 The minimum requirements to qualify to be a surrogate mother, such as the age bracket of prospective surrogate mothers; the maximum number of children (own and surrogate children) that a surrogate mother may gestate and the physical and mental health condition of a woman, should be defined in the proposed convention. The criteria to qualify as commissioning parent(s) should also be stipulated. These should include age parameters and proof of

221

Re P-M(2013)EWHC 2328(Fam).

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financial, physical and mental ability to care for the child(ren). Persons with a criminal record for offenses of a sexual nature or offenses against women and children should be disqualified from being entitled to become commissioning parents, unless they are shown to have fully rehabilitated and pose no risk to the child. In addition to the salient terms of an agreement and the aspects highlighted above, it was suggested that the arrangement should make provisions for any compensation which may become due to the surrogate mother, including medical expenses, to be paid to the surrogate mother, if she should have a still born baby or miscarry through natural causes without self-inflicted harm or risk to the fetus. It was suggested that provision be made for the surrogate mother to be paid a pro rata fee for each month of gestation. In the event of the child’s death, the commissioning parents should be responsible for reasonable burial costs. It was suggested that while the process of establishing an international framework for surrogacy is ongoing process, a set of guidelines should be formulated, as a source of reference, which will assist a Court when faced with determining the issue of parentage of a surrogate born child and consequently his or her nationality. These guidelines may, in the absence of legal precedent, be referred to by the Courts and offer guidance, without infringing on the independence of the judiciary, in an attempt to reduce the risk of children born of cross-border surrogacy arrangements, being rendered stateless and sans legal parents. The guidelines will not be binding and may take a form similar to the Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, albeit at present without a ‘parent’ convention. It is true that an international regulation would definitely mitigate surrogacy abuse and the rights of the surrogate child would also be safeguarded. However, the issue remains as to what extent the uniform set of rules governing surrogacy need to be framed as till date, there is no consensus amongst nations on such a sensitive issue yet and which is another issue that requires consideration. The Hague Conference on Private International Law vide its preliminary report on issues arising in relation to international surrogacy arrangements mentioned that international surrogacy arrangements often infringe upon the fundamental rights and interests of children which rights and interests have already been widely recognized by the international community. The ultimate ‘need’ is therefore for a multilateral instrument which would put in place structures and procedures to enable States to ensure that these obligations are met in the context of this transnational phenomenon. This would include seeking to eliminate ‘limping’ legal parentage, ensuring children are able to acquire a nationality, ensuring their right to know their identity is secured and putting in place procedures to ensure that they are protected from harm.222 In its 2014 report, the Permanent Bureau recommended that any ‘A preliminary Report on the Issues Arising in Relation to International Surrogacy Arrangements’ Prel. Doc. No 10 of March 2012 for the attention of the Council of April 2012 on General Affairs and Policy of the Conference, para 48. Available at www.hcch.net> under the ‘Parentage/Surrogacy Project’ accessed 23 Oct 2013. 222

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future work looking to include coverage of ISAs (e.g., a ‘stand-alone’ instrument or work as part of a broader instrument) should include certain minimum fundamental substantive safeguards concerning ISAs such as 1. The free and informed consent of surrogate mothers to any ISA 2. That all parties are appropriately informed and educated about any ISA, both legally, in all relevant States, as well as medically and psychologically 3. The medical and psychological suitability of a woman to become a surrogate mother 4. The welfare of any child born to an ISA: e.g., this may include some basic checks in relation to the intending parents, including child abuse and criminal background checks and possibly upper age restrictions, as well as provisions concerning the child’s right to know his/her origins. 5. The maximum number of embryos to be transferred to any surrogate mother and the number of surrogate mothers who can be impregnated at one time for one set of intending parents 6. Provisions in case of breakdown of the ISA to protect all parties: e.g., such that, once an agreement is entered into, the intending parents will be responsible for any child born, including but not limited to circumstances in which the child has any special needs and/or if there are any errors by clinics providing medical services (e.g., due to gamete or embryo mix-ups). 7. Limitations to contract terms (including identifying impermissible terms): e.g., an ISA shall not include provisions that unduly coerce the surrogate mother to terminate or reduce a pregnancy, or provisions which would unduly penalize a surrogate mother for breach of an ISA, effectively economically coercing her to continue with an arrangement when she no longer wishes to do so. 8. The financial aspects of the arrangements: e.g., compensation should be linked with the surrogate mother’s time, effort and risk and not with the outcome of the pregnancy.223 Further in this report, the Permanent Bureau asked for further support for this work from State actors such as policy makers, judges and those commissioned to undertake studies in this field and recommended formation of an Experts’ Group with practical, ‘on the ground’ experience of cross-border problems arising in relation to legal parentage. For example, specialist legal practitioners and social work professionals with practical experience of these issues and other leading international Governmental and Non-Governmental Organisations with practical expertise in the field to facilitate further exploration on the feasibility of drawing up

‘The desirability and feasibility of further work on the parentage/surrogacy project’ Preliminary Document No 3 B of March 2014 for the attention of the council on April 2014 general affairs and policy of the Conference. Available at www.hcch.net under the ‘Parentage/Surrogacy Project’ accessed June 23, 2015. 223

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a multilateral instrument in this field or possible non-binding measures in this area.224 In its 2015 Updating Note, the Permanent Bureau requested Members to keep the Bureau closely updated regarding significant developments in their States in relation to legal parentage and surrogacy (e.g., new case law, legislation and policy approaches) wherever possible in order to save the Bureau’s resources which it would have required to invest in tracking these developments.225 In the meantime, the parentage and/or citizenship of children born via an international surrogacy arrangement will remain a significant issue for the Courts and Judges to adjudicate upon. In these cases, the International Family Court Judges need to have the courage to put the overriding principle in family law, namely the welfare and best interests of the child, before the politics of morality and legality of International Surrogacy. Not recognizing the parentage and/or citizenship of children born via international surrogacy would amount to leaving these children in a legal limbo and to disconnect them from their commissioning parents who seek to love and nurture these children.

4.9

Conclusion

Thus, it is clear from the discussion made above that the bills which have been introduced in India with the primary objective to protect the rights of the surrogate mother and the surrogate child from exploitation and unethical practices have actually not been able to achieve this objective owing to the fact that the most important and relevant provisions which will go a long way in ensuring that the interests of the surrogate mother and the child born via surrogacy are protected in consonance with India’s obligations to International Conventions are found missing. While some of the issues have been addressed in the so far proposed Surrogacy (Regulation) Bills, there are still a large number of issues that need to be addressed. Till such time, the objective of protecting surrogate mother’s rights as well as surrogate child will remain at best, a piped dream. Therefore, the urgent need of the hour is to bring about a law which is watertight in not just addressing the rights and interests of the surrogate mother and child but also lays down unambiguous rights and corresponding duties of the intended parents.

224

Id. para 69 &72. ‘The parentage/surrogacy Project: An Updating note’ Preliminary Document No 3A of February 2015 for the attention of the Council of March 2015 on General Affairs and Policy of the Conference. para 24. Available at www.hcch.net under the ‘Parentage/Surrogacy Project’ accessed June 23, 2015. 225

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Cases Bachpan Bachao Andolan v. Union of India Writ Petition (Civil) No. 75 of 2012. Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802. Dr. Hema Vijay Menon v. State of Maharashtra WP No.3288, decided on 22 July, 2015. Environment and Consumer Protection Foundation v. Delhi Administration Writ Petition (Civil) No 631 of 2004 decided on 3/10/2012. Ex Parte WH (2011) 6 SA 514 (GNP) para 67. Francis Coralie Mullin v. Union Territory of India, AIR 1981 SC. Gaurav Jain v. Union of India AIR 1997 SC 3021. Huddlestone v. Infertility Centre of America Inc 700 A.2d 453 (Pa.Super.Ct.1997). J.P. Unnikrishnan v. State of Andhra Pradesh AIR 1993 SC 2178. K. Kalaiselvi v. Chennai Port Trust 2013 (2) KLT 567. K.S. Puttaswamy v. Union of India(2017) 10 SCC 1. Lakshmi Kant Pandey v. Union of India (1982) 2 SCC 244. M.C. Mehta v. State of Tamil Nadu AIR 1997 SC 699. Mohini Jain v. State of Karnataka AIR 1992 SC 1858. National Legal Services Authority v. Union of India AIR 2014 SC 1863. Navtej Singh Johar v. Union of India AIR 2018 SC 4321. P. Geetha v. The Kerala Livestock Development Board ltd 2015(1) KLJ 494. Rama Pandey v. Union Of India & Ors WP(C) No. 844/2014 decided on 17 July, 2015. Rasiklal Chhaganlal Mehta v. Unknown, AIR 1982, Guj. 193. Re S (Parental order) [2009] EWHC 2977 (Fam), [2010] I FLR 1156. Re: L(A Minor) [2010] EWHC 3146 (Fam). Re: IJ (A child) [2011] EWHC 291 (Fam). Re X[2020]EWHC 39. Re: A (Surrogacy s. 54 Criteria) [2020] EWHC 1426 (Fam.). Re X and Y(Foreign surrogacy)[2008]EWHC 3030 (Fam). Re P-M(2013) EWHC 2328(Fam). Sheela Barse v. Union of India AIR 1986 SC 1773. Sheela Barse v. Secy Children’s Aid Society AIR 1986 SC 1773. Unni Krishnan, J.P. v. State of Andhra Pradesh AIR 1993 SC 2178.

Legislations/Bills/International Conventions/Notifications/Guidelines European Commission of Human Rights, 1948. Convention On Protection Of Children And Co-Operation In Respect Of Intercountry Adoption (1993), United Nations Convention for the Rights of the Child, 1993. Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training Proposals on Child Care Leave (CCL) and Maternity Leave–DOPT, Office Memorandum, No.13018/1/2014-Estt(L) 01.04.2016, Proposals on Child Care Leave (CCL) and Maternity Leave – Reg., APRIL 5, 2016. Available at http://it.delhigovt.nic.in/ writereaddata/Cir201655282.pdf. Accessed 20 Apr 2018. The Assisted Reproductive Technology (Regulation) Bill, 2008. The Assisted Reproductive Technology (Regulation) Bill, 2010. The Assisted Reproductive Technology (Regulation) Bill, 2014. The Citizenship Act, 1955. The Human Fertilization and Embryology Act 2008 (U.K). The Maternity Benefit (Amendment) Act, 2017. The Surrogacy (Regulation) Bill, 2016.

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The Surrogacy (Regulation) Bill, 2019. The Surrogacy (Regulation) Bill, 2020. Indian Council of Medical Research (2005), National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (hereinafter referred to as ICMR Guidelines). Available at https://main.icmr.nic.in/sites/default/files/art/ART_Pdf.pdf. Accessed 8 June 2014. Law Commission of India, Report No. 228 on Need For Legislation to Regulate Assisted Reproductive. Technology Clinics As well As Rights And Obligations Of Parties To A Surrogacy (August 2009). Available at https://lawcommissionofindia.nic.in/reports/report228. pdf. Accessed June 8, 2018. Department Related Parliamentary Standing Committee on Health and Family Welfare(2017), 102nd Report on the Surrogacy Regulation Bill, 2016. Available at http://164.100.47.5/ committee_web/ReportFile/14/100/102_2018_6_15.pdf. Accessed June 8, 2018. The Select Committtee Report (2020). Available at https://prsindia.org/files/bills_acts/bills_ parliament/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf. Accessed 4 March 2020. A preliminary Report on the Issues Arising in Relation to International Surrogacy Arrangements” Prel. Doc. No 10 of March 2012 for the attention of the Council of April 2012 on General Affairs and Policy of the Conference, para 48. Available at www.hcch.net under the “Parentage/Surrogacy Project”. Accessed 23 Oct 2013. The desirability and feasibility of further work on the parentage/surrogacy project” Preliminary Document No 3 B of March 2014 for the attention of the council on April 2014 general affairs and policy of the Conference. available at www.hcch.net under the “Parentage/Surrogacy Project”. Accessed 23 June 2015. Hague conference on Private Internationall Law (2011). Private International Laws Issues Surrounding the Status of Children, including Issues arising from International Surrogacy Arrangements 3.Prel.Doc.No.11. http://hcch.net/upload/wop/genff2011pdle.pdf. Accessed 20 April 2015.

Chapter 5

Homosexuals, Third Genders, Live in Couples, Singles and Their Right to Surrogacy

5.1

Right to Procreation as a Human Right

In order to understand the right to procreation as a basic human right vested with every human being, one needs to look into some of the important provisions of International instruments such as the Universal Declaration of Human Right (UDHR) 1948 which inter alia provides, ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’1 The above Article reveals that every human is entitled to certain rights and fundamental freedoms from birth and the enjoyment of such rights and freedoms should not be abridged in any manner on grounds of sexual orientation. This freedom to all humans, regardless of their sexual preferences or orientations dates back to the year 1948. Other International instruments such as the International Covenant on Civil and Political Rights (ICCPR) also contain provisions prohibiting discrimination on grounds of sexual orientation such as Article 26 prohibits discrimination ‘on any ground’.2 Article 17 of the Covenant provides that ‘no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence nor to unlawful attack on his honour and reputation.’ Article 16 of the covenant also provides that ‘everyone shall have the right to recognition everywhere as a person before the law.’ The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also known as the United

1

Universal Declaration of Human Right (UDHR) 1948, art. 2. Available at https://www.jus.uio.no/ lm/en/pdf/un.universal.declaration.of.human.rights.1948.portrait.letter.pdf. Accessed June 8, 2018. 2 International Covenant on Civil and Political Rights, 1966, art.16. Available at https://www. ohchr.org/en/professionalinterest/pages/ccpr.aspx. Accessed July 31, 2018. © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 H. Kaur, Laws and Policies on Surrogacy, https://doi.org/10.1007/978-981-16-4349-1_5

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Nations Convention against Torture (UNCAT)3 specifically deals with protection of individuals and groups made vulnerable by discrimination or marginalization. For instance, Para 21 of the Convention states that ‘States are obliged to protect from torture or ill-treatment all persons regardless of sexual orientation or transgender identity and to prohibit, prevent and provide redress for torture and ill-treatment in all contests of State custody or control.’ In fact, in relation to Sexual Orientation and Gender Identity, The Yogyakarta Principles occupy an important place as they advocate enjoyment of human rights without discrimination on the basis of sexual orientation or gender identity.4 These principals aim to address violations of human rights committed against persons belonging to the LGBT community due to their sexual orientation or gender identity. These principles recognize all human rights to be universal, interdependent, indivisible and interrelated. While recognizing the importance of self-defined sexual orientation and gender identity in a person’s life by defining it as one of the most important aspects of self-determination, dignity and freedom, Principle 3 of the same promotes self-identification of their own gender by every person. Principle 4 provides that everyone is entitled to right to life and that no one shall be deprived of life irrespective of their sexual orientation or gender identity and that no death penalty should be levied on persons above the age of consent involved in consensual sexual activity irrespective of their sexual orientation or gender identity. Further, the principles also grant the right to privacy to every individual without any arbitrary or unlawful interference regardless of sexual orientation or gender identity. This includes the right to protection from unlawful attacks on their honor and reputation and also includes the right to choice, the choice to reveal or not to reveal one’s sexual orientation or gender identity together with his/her choice regarding consensual sex and other relations.5 Similarly, Principle 19 of Yogyakarta Principle provides that every person has the freedom of opinion and express irrespective of their sexual orientation or gender identity including expression through speech, deportment, dress, bodily characteristics, choice of name, etc. In November 2017, i.e., ten years after the adoption of the Yogyakarta Principles, additional principles and State obligations were added to mark the ten years of the existence of the principles.6 The Yogyakarta Principles plus 10 (YP + 10) Document supplements the original 29 Yogyakarta Principles and talks about right to State protection from violence, discrimination and any other harm from the government or by any group

3

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1985. Also known as the United Nations Convention against Torture (UNCAT). 4 International Commission of Jurists (ICJ), Yogyakarta Principles (2007)- Principles On The Application of International Human Rights Law In Relation To Sexual Orientation and Gender Identity, available at https://www.refworld.org/pdfid/48244e602.pdf. Accessed July 31, 2018. 5 Id., P 6. 6 International Commission of Jurists (ICJ), Yogyakarta Principles plus 10(2017) -Principles on the application of international human rights law in relation to sexual orientation and gender identity. Available at http://yogyakartaprinciples.org/wp-content/uploads/2017/11/A5_yogyakartaWEB-2. pdf. Accessed July 3, 2018.

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or individual7 as well as right to bodily and mental integrity of every individual regardless of sexual orientation, gender identity, gender expression or sex characteristics.8 The Yogyakarta Principles however are not binding upon the States and the States cannot be held accountable for not upholding them. They are soft laws which can only act as guiding principles in formation of State legislation and policies, though, the United Nations and other human rights bodies have recognized Yogyakarta Principles as important tools for identifying the rights of gender and sexual-based minorities and the obligations of States toward protecting them.

5.2

Homosexuals, Third Genders, Live-In Couples, Singles and Their Right to Surrogacy: (I) International Scenario

Though in chapter-II of this book titled “Surrogacy: laws and Policies Across the Globe”. The author has elaborately discussed the reception and regulation of surrogacy in distinct legal systems across the globe which is remarkably diverse, however, since same-sex, live-in relationships along with single parenthood are increasingly finding greater acceptance in societies across the globe and are consequently paving the way for their right to procreation via surrogacy, the same is being specifically examined in this chapter in order to see as to how several countries around the world have provided the facility of using a surrogate to persons other than heterosexual couples in line with the Yogyakarta Principles and various international human right conventions. In the above context, it is also worthwhile noting that studies conducted worldwide have shown that being brought up by same-sex parents or heterosexual parents does not really impact a child. The development and psychological well-being of children is unrelated to parental sexual orientation and that children of lesbian and gay parents are as likely to flourish those of heterosexual parents.9 A child needs love, care, guidance and support and there is no support in the notion that children are ideally raised by ‘a’ mother and ‘a’ father. Thus, sexual orientation of parents has got nothing to do with the psychological makeup of a child. A child in his formative years is better off with having two fathers or two mothers who love and respect each other than a mother and a father who continuously bicker. The various studies on children born through ART treatment (including surrogacy) and their families have consistently shown that ART conceived children function normally and enjoy the same level of psychosocial and cognitive development as do 7

Id., P 30. Id., P 32. 9 Perrin E.C (2002). 8

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children who are conceived naturally. It is also pertinent to note that the studies to date are limited to consideration of fairly young children, meaning thereby that harm to children as a result of surrogacy cannot be ruled out, at least until long-term studies are undertaken to reach this conclusion. A contextualized approach to reproductive autonomy instructs that if women wish to act as surrogates and if commissioning parents wish to form their families through the use of surrogacy, then these parties should be permitted to engage in such arrangements. Speculative arguments and concerns—including those based in morality or fears for the future of the family—must not be permitted to take priority over the autonomy-based interests of those who seek to procreate through surrogacy arrangements. Since becoming a parent and to make a family is the basic right of every human being, it is a prerogative choice of a couple or an individual to become or not to become a parent. Surrogacy being a sensitive industry should be well regulated so that a boon does not become a bane for mankind.

5.2.1

Israel

Israel recognizes only gestational surrogacy vide the Embryo Carrying Agreements (Authorization Agreement & Statutes of the Newborn Child) 1996. Prior to 2018, surrogacy in Israel was limited to heterosexual married couples only and it was in July 2018, when laws were amended to legalize its use by single women (practically lesbians only as same-sex marriages are not been performed in the country). Therefore, under the extant regulations, sterile heterosexual couples, whether married or not, are permitted to hire a surrogate whether single/widowed/ divorced.10 Where on one hand, a single woman can have a child through surrogacy using donated sperm; a lesbian couple wishing to have a child through surrogacy cannot use the services of surrogate mother. However, one of them can become biological mother by giving birth herself using a donated sperm and her partner can apply to adopt the minor under Israeli law. Even a homosexual man cannot get a woman in Israel to act as a surrogate mother for him, and give birth to a baby using his sperm, using a donated egg. However, if he succeeds in creating a child abroad, using his sperm, donated egg and a surrogate mother in a country where it is legally permissible and obtains a foreign birth certificate wherein, he is shown to be the registered father, then he will be recognized as a biological parent under Israeli law. As already discussed, under the said regulations, only heterosexual married and single women had been allowed to access surrogacy and it still excludes single and gay men as well as same-sex couples making them search for a surrogate in another country, which may be substantially more difficult and costly in monetary terms which led to protests by such groups. However, recently on February 27, 2020, the

10

Teman (2016).

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Israeli Supreme Court recognized the rights of same-sex couples to access surrogacy on equality grounds and ruled against this surrogacy law holding the exclusion of same-sex couples and single men as discriminatory and violative of the right to equality and the right to parenthood of these groups thereby declaring it as unconstitutional and giving the government a year to amend a 2018 law.11

5.2.2

United Kingdom

At present the surrogacy arrangements in UK are subject to a framework which is a combination the Surrogacy Arrangements Act 1985 ‘The 1985 Act’ (based on the 1984 Warnock Report prohibiting the commercial surrogacy arrangements); The Adoption and Children Act 2002; The Human Fertilization and Embryology (Deceased Fathers) Act 2003; The Human Fertilization and Embryology Act (HEFA) 2008 [which amended the Human Fertilization and Embryology Act 1990]; and the Human Fertilization and Embryology (Parental Order) Regulations 2010. The primary mandate of HFEA was to introduce the concept of ‘parental order’ as means of transferring the responsibility of the surrogate child from the surrogate parent to intended parents. The Human Fertilization and Embryology Act 2008 came up with the concept of ‘supportive parenting’ instead of the ‘need of a child for a father’ thus granted the right to lesbians to avail the use of a surrogate for begetting a child.12 It also bestowed the right of legal parentage to persons in same-sex relationship or two live-in partners who were not within prohibited degrees of relationship with each other.13 However, while the amendment was for the benefit of same-sex and unmarried heterosexual couples thereby permitting them to seek a parental order, single persons still remain excluded and the status of transgender persons continued to remained ambiguous. However, in Re Z (No. 2) (2016),14 the President of the High Court Family Division, in the facts of the case, went ahead and made a formal declaration that the law discriminated against children born to single parents and that there was an incompatibility under the Human Rights Act. In this case, the applicant—a single father—was not granted the parental order who had begot a son through surrogacy in USA, thereby leaving the child as a ward of Court and the parental responsibility was shouldered on US gestational surrogate. The outcome of this decision actually resulted in the amendment carried out in the year 2019 whereby single parents were allowed to apply for a parental order.

11

781/15 Supreme Court of Israel (February 27, 2020) [Before: The Honorable President E. Hayut, The Honorable Deputy President H. Metlzer, The Honorable Justice N. Hendel, The Honorable Justice A. Fogelman, The Honorable Justice Y. Amit] [Hon. President E. Hayut:]. 12 Human Fertilization and Embryology Act 2008, s. 14. 13 Id., s. 54. 14 [2016] EWHC 1191 (Fam).

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5.2.3

United States

In USA, there is no federal law on surrogacy and the laws vary by State to State. All States license and recognize marriage between same-sex couples on account of the Supreme Court decision in Obergefell v. Hodges15 in which the Court held in a 5–4 decision that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Post the landmark judgment, a number of States have allowed gay men to access surrogacy and also provide legal recognition and protection. In the State of Utah, same-sex couples were allowed to marry post Obergefell and consequently eligible to undertake surrogacy under the State surrogacy legislation.16 Further, Texas and Florida too followed suit. The State of California provides one of the most favorable legal climates for surrogacy and egg donation arrangements for same-sex couples including placement of the names of both the partners or a single male/female parent on the birth certificate thereby preventing the need for second parent adoption. However, not all States permit same-sex family building via surrogacy. Some States do not permit gestational surrogacy at all. But in most States, heterosexual and same-sex couples are treated the same when it comes to gestational surrogacy.17 In a latest development, the State of New York in 2020, lifted its ban on gestational surrogacy thus allowing LGBTQ couples and infertile couples to start families vide Child-Parent Security Act that was signed into law by Governor Andrew Cuomo on April 3, 2020 and has come into effect on February 15, 2021.18

5.2.4

Canada

Ontario and British Columbia became the first two States in Canada to legalize same-sex marriage and the Federal Civil Marriage Act came into force in the year 2005 which made same-sex marriages legal across Canada. However, it was the enactment of the Assisted Human Reproduction Act 2004 which permitted surrogacy to same-sex and live-in- couples in Canada. In Canada, only altruistic surrogacy arrangements, whether traditional or gestational, have been recognized and held legal. There was no Federal Regulation regarding surrogacy until the Assisted Human Reproduction Act (AHRA), 2004 was passed by the Federal Government of Canada. Principle 2(e) of the 2004 Act prohibits discrimination against persons

15

83 U.S.L.W. 4592. Hinson (2016). 17 Id. 18 New law legalizes paid surrogacy in New York; opens up options for the families. Available at https://www.newsday.com/lifestyle/family/surrogacy-law-new-york-1.50151620. Accessed March 1, 2021. 16

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seeking to undergo assisted reproduction techniques including surrogacy. The Act allows spouses, ‘common law partners’ and sexual partners to avail surrogacy.19 Under the Act, Common law partner means a person who is cohabiting with another person in conjugal relationship for at least a period of one year.20

5.2.5

Australia

Unlike Canada, Australia does not have a Federal law on surrogacy. The jurisdiction to legislate regarding Family Law rests with the Commonwealth, however, matters regarding surrogacy in Australia are regulated by the provinces. Altruistic surrogacy is permitted in all Australian provinces except in the Northern Territory and there is no bar regarding the marital status or sex of the intended parents for entering into a surrogacy arrangement.21 In fact to understand as to what extent the right to procreate and raise a family through surrogacy is vested with everybody regardless of one's sexual orientation or marital status in Australia, one can look into regulations in some of the Australian States and territories. (i) Queensland Prior to the enactment of the Surrogacy Act 2010 in the State, Surrogate Parenthood Act of 1988 was in force prohibiting all forms of surrogacy, whether altruistic or commercial. It was only in the year 2008 that a recommendation regarding decriminalizing altruistic surrogacy was mooted by a Select Committee of the Parliament of Queensland.22 This led to the introduction of the Surrogacy Bill in 2009 which later became the Surrogacy Act of 2010. The Act allows altruistic surrogacy while it prohibits commercial surrogacy. There is no bar regarding the marital status or sex of the intended parents, i.e., the services of surrogate can be availed by either a married couple, same-sex couple or a single parent.23 (ii) South Australia The South Australian law on Surrogacy was initially governed according to Family Relationships Act, 1975 permitting only altruistic surrogacy. Most importantly, the right to surrogacy was only provided to married heterosexual infertile couples. 19

Assisted Human Reproduction Act, 2004s. 10 (2). Id., s. 10(5). 21 One can see the Surrogacy Act of 2010 in Queens land, The Surrogacy Act 2012 in Tasmania, in Assisted Reproduction Treatment Act of 2008 in Victoria etc. 22 Standing Comm. Of Attorneys-General Australian Health Ministers’ Conference Cmty. & Disability Serv. Ministers’ Conference, Joint Working Group, A Proposal For A National Model To Harmonise Regulation Of Surrogacy 24–32 (2009). 23 Section 9 of Queensland’s Surrogacy Act, 2010 mentions the word ‘person’, while defining a couple and not the genders man or woman. 20

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However, the Parliament of South Australia has now recently passed the Surrogacy Act, 2019. The people who were previously excluded from the opportunity of becoming parents due to their relationship status or infertility challenges, under the Act have been allowed access to parenthood via surrogacy as well as pursue IVF treatments interstate. Single men and women are also allowed access to surrogacy agreements and it has not been made limited to just married or de facto couples only.24 (iii) Tasmania In Tasmania, the surrogacy arrangements are governed by The Surrogacy Act 2012 which allows married, de facto/same-sex couples and single persons to avail the benefits of altruistic surrogacy as Sect. 5 of the 2012 Act uses the word ‘person or persons’ for ‘intended parent or intended parents.’ (iv) Victoria In Victoria, the Assisted Reproductive Treatment Act, 2008 requires the commissioning parents to be infertile, unable to carry a pregnancy or a medical risk involved with the mother or the baby if pregnancy occurs. Therefore, single parents and same-sex couples are also eligible to apply for surrogacy in Victoria. (v) New South Wales In New South Wales, surrogacy arrangements are regulated by Surrogacy Act 2010. The Act prohibits commercial surrogacy arrangements while permitting altruistic surrogacy even for the same-sex couples. The legislation provides that the intended parent may be a single person, or a member of a couple being a person and their spouse or de facto partner. (vi) Australian Capital Territory In the Australian Capital Territory (ACT) it is the Parentage Act, 2004 which deals with surrogacy arrangements and prohibits commercial surrogacy.25 While allowing male and female same-sex couples to avail surrogacy under the Act it excludes Single men and women.

5.2.6

Thailand

In Thailand, unregulated commercial surrogacy was practiced until Aug 2014 and it was a popular destination for couples seeking surrogate mothers. However, after the Baby Gammy incident in 2014, when a West Australian couple Wendy and David

Surrogacy Act 2019, s. 10(2)(b); The provision uses the words ‘a person’ or ‘both persons’ who can be a party to a lawful surrogacy agreement as an intended parent. 25 Parentage Act 2004 (ACT), s 24(c). 24

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Farnell abandoned Gammy Farnell, a twin boy—Baby Gammy—with Thai surrogate after they discovered that the child was suffering from ‘Down Syndrome’ and returned to Western Australia with his healthy twin sister, Pipah. With this case widely discussed in the international media, the Thai Authorities started crackdown operations on surrogacy industry. Another case was exposed where a Japanese single man had fathered about 16 children through surrogacy in Thailand. With these cases in hand, Thailand with effect from July 30, 2015, banned foreign nationals traveling to Thailand, to have commercial surrogacy contract arrangements under the Protection of Children Born from Assisted Reproductive Technologies Act 2015. The Act contains several provisions regulating surrogacy with the most important provision being Sect. 23 which out-rightly prohibits commercial surrogacy in Thailand. Further, vide Sect. 21(1) Only heterosexual married couples of at least 3 years as Thailand residents are permitted to avail of the services of a surrogate.26 Further, same-sex couples cannot seek surrogacy since Thailand does not recognize same-sex marriage.

5.2.7

Nepal

With the closure of commercial arrangements in Thailand and ban on seeking surrogacy by foreigner singles and gay couples by the new visa guidelines issued by the Indian Ministry of Home Affairs on July 9, 2012, Nepal emerged as the newest entrant to International Surrogacy, taking advantage of near at-hand Indian expertise and availability of surrogates and donors. Gays from Israel, UK and Australia started embarking their journey to seek parenthood in Nepal in order to fulfill their dream of becoming ‘fathers.’ However, irony about surrogacy in Nepal was that while it did not allow surrogacy for its own citizens, meaning thereby that neither the surrogate mother nor the intending parents could be from Nepal, however, intending parents from outside Nepal could choose Nepal as a destination for commissioning surrogacy. However, on August 25, 2015, the Supreme Court of Nepal issued an interim direction thereby immediately halting commercial surrogacy services in Nepal until it ruled on the legality of the practice. While the Cabinet also thereafter decided on September 19, 2015 to ban surrogacy, however, vide its final verdict, the Supreme Court announced on December 12, 2016, holding that surrogacy is legal for infertile Nepali married couples, but illegal for single men or women, transgender couples and foreign nationals. This brought an emptiness for single and same-sex couples wishing to opt for surrogacy in the South Asia region. The Court came up with an option of altruistic surrogacy, completely banning commercial surrogacy in Nepal declaring that Married Nepali couples with proven medical records of infertility and inability to have children can now practice altruistic surrogacy in the country once laws governing it are formulated while the

26

Caamano (2016).

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surrogate mothers should be married with at least one child and take their husband’s consent for it. It was also directed that a surrogate mother will not be allowed to deliver babies more than once. The government is, however, yet to take any action on the Supreme Court directive issued two years ago directing it to enact a new law to govern altruistic surrogacy.27 It is also pertinent to mention here that in the year 2007, in the case of Sunil Babu Pant v. Nepal Government,28 the Supreme Court of Nepal legalized same-sex marriages and directed the government to frame appropriate laws and regulations regarding it. In 2015, the government also constituted a committee to examine the option of legally permitting same-sex marriages in Nepal and the Committee, in its 85 pages report submitted to the Prime Minister’s office, recommended legalizing same-sex marriages.29 However, no law has been passed by the Nepal Parliament regarding it till date.

5.2.8

Ukraine

Ukraine is an important and favorable destination for commercial surrogacy which is legal on the territory of Ukraine since 2002. The practice is officially controlled and managed by Article 123 of the Family Code of Ukraine (FCU) which is the founding Legislative Act in this sphere and which guarantees all citizens the unimpeded realization of their right to motherhood and fatherhood, and Order 24 of the Health Ministry of Ukraine on ‘Approval of Conditions and Order of Employment of Artificial Insemination and Implantation of Embryo(s), and Methods of Their Performance,’ dated February 4, 1997 (‘Order’) providing for the General procedure Like Russia, Ukraine’s culture remains intolerant to same-sex or single parents. While gestational surrogacy contracts are legal, the country will only allow surrogacy only for heterosexual married couples. Gay surrogacy is absolutely illegal in the Ukraine. Similarly, Republic of Georgia allows surrogacy contracts, but only for married heterosexual couples.

5.2.9

Russia

A relatively neutral approach is adopted by Russia toward surrogacy and it is only the gestational surrogacy which is allowed in Russia. The Family Code 1995, contains two articles one of which concerns the order of registration of legal parents of a child born using a surrogate (Sect. 51, paragraph 4(2) and the other relates with the issues of contesting paternity and maternity with regard to a child conceived

27

Supreme Court of Nepal, Case 072-WO-0119 (July 14, 2016) (Nepal). Writ No. 917 of the year 2064 BS (2007 AD). 29 Sijapati & Manandhar (2019). 28

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through IVF and born to a surrogate (Sect. 52, paragraph 3(2)). There is also a provision on surrogate motherhood in the federal law on the Acts of Registration of Civil Status 1997, which having followed the legal rule contained in the Family Code, merely clarifies some details concerning registration of the birth of a child born by a surrogate mother (Sect. 16(5). A new Law on Citizen’s Health came to be adopted in November 2011 thereby adding new rules on surrogate motherhood along with introducing a clear prohibition of so-called partial or traditional surrogacy, by stating stated that a surrogate mother shall not be an oocytes donor. This new Law on Citizens Health 2011, permitted married couples and unmarried couples, including foreign citizens, the right to participate in gestational surrogacy arrangements in the country. In fact, while surrogacy in Russia for a single man/ single female is possible, however, same-sex couples are not stipulated as potential intended parents as only gestational surrogacy arrangements are permitted.30 However, recently Russia has proposed to ban foreign citizens and unmarried citizens from availing surrogacy due to the fact that surrogate women and children are being reportedly exploited by wealthy foreigners.31

5.2.10 New Zealand Legislations in New Zealand provide for altruistic surrogacy involving its citizens or residents opting for cross-border surrogacy. The Human Assisted Reproductive Technology Act 2004 deals with legality of surrogacy provisions and along with it, the Status of Children Act (SOCA) 1969 governs legal parenthood and treats children born in New Zealand and those born elsewhere, equally.32 Though the term ‘surrogacy’ under this Act does not find mention nevertheless it does have a profound impact on the legal parenthood of children born from surrogacy arrangements. Vide this Act, the surrogate mother is considered to be the legal mother of any child born, regardless of whether the child is conceived biologically or through artificial insemination, and bears all rights and liabilities of motherhood until the child is adopted.33 It is through adoption under the Adoption Act, 1955 which regularizes the parental relation between the intending parents and the surrogate child. Through the grant of an “Adoption Order” under the Adoption Act full legal parenthood is granted to the intending parents. Guardianship or parenting orders are two other options which exist under the Act to create a legal parental 30

Federal Law No. 323-FZ of November 21, 2011 on Basics of Health Protection of the Citizens in the Russian Federation as amended to December 29, 2015. 31 The Moscow Times (2021) Russia Considers Banning Surrogacy for Unmarried People, Foreigners https://www.themoscowtimes.com/2021/01/20/russia-considers-banning-surrogacyfor-unmarried-people-foreigners-rbc-a72668 Jan 20, 2021. Accessed Feb 15, 2021. 32 Status of Children Act, 1969 ss. 3(4) & 5(3). Available at http://www.legislation.govt.nz/act/ public/1969/0018/latest/whole.html. Accessed July 28, 2018. 33 Id., s. 5(1) and s. 17(2).

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relationship and both these options are available and are governed by the Care of Children Act (COCA) 2004.34 However, unlike in the case of adoption, the full legal parental relationship between the surrogate (and her partner) and the surrogate child is not extinguished with a guardianship or parenting order.35 It is also important to mention that the New Zealand Family Court, in considering cases of cross-border surrogacy involving New Zealand citizens or residents, has in some instances, also considered the potential relevance and application of the Adoption (Inter-Country) Act 1997. In 2016, the Human Rights Commission called for an urgent reform of New Zealand adoption laws, following a Human Rights Review Tribunal finding that the Adoption Act and the Adult Adoption Information Act 1985 contradict New Zealand’s human rights legislation by discriminating against people based on sex, age, marital status and disability.36 In July 2020, the Minister responsible for the Commission referred a review of surrogacy laws to the Commission as a new item to commence in 2020/2021 directing the Commission to focus on surrogacy arrangements and legal parenthood while examining both domestic surrogacy and international surrogacy in the Aotearoa New Zealand. The Commission is in the process of determining the scope and timeframe of the project.37

5.3

National Scenario: India

Talking about India, wherein religion plays a very prominent role in shaping Indian customs and traditions and the Hindu religious texts condemn premarital and extra-marital sex. The teachings of Vedanta which emphasize to pursue of ‘moksha’ allow only heterosexual sex between a married couple for the purposes of procreation. Therefore, Homosexual conduct in India was classified as an offense till 2018 under Section 377 of the Indian Penal Code (IPC), which was wide enough to cover all cases of sexual perversion of both homosexual and heterosexual behavior. However, due to greater demand for acceptance of tolerance and equality for lesbian, gay and bisexual people and the need to control HIV/AIDS, several NGOs demanded a legislation or at least decriminalization of homosexuality in India. In 2017, the nine-judge bench Supreme Court of India in the K.S. Puttaswamy v. Union of India38 case held that the right to procreate forms part of the right to privacy enshrined under right to life and liberty under Article 21 of the

34

Care of Children Act, 2004 s. 4. New Zealand Law Commission (2005). 36 Human Rights Commission calls for urgent reform of New Zealand adoption laws (2016). Available at https://www.hrc.co.nz/news/human-rights-commission-calls-urgent-reform-newzealand-adoption-laws/ Accessed March 21, 2019. 37 https://www.lawcom.govt.nz/our-projects/surrogacy-law-review. Accessed July 30, 2020. 38 (2017) 10 SCC 1. 35

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Constitution. Reflecting upon its earlier judgment in the case of Suchita Srivastava v. Chandigarh Administration case39 which pertained to a matter where a woman had become pregnant resulting from rape wherein the then Chief Justice of India, K. G. Balakrishnan categorically observed that the right of a woman to make reproductive choices is a dimension of ‘personal liberty’ falling under Article 21 of the Constitution, it was held that the right to a reproductive choice included not just the right to procreate but also the right to abstain from procreating. The crucial consideration as stressed by the Court was that the right to privacy, dignity and bodily integrity of a woman should be respected. Nariman J. in his concurring opinion with the majority in the Puttaswamy case, referred to the R Rajagopal v. State of Tamil Nadu40 judgment of the Apex Court where it was held that the right to privacy included the right to be left alone. Elaborating further, the Court opined that ‘a citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.’41 The Court in the Puttaswamy judgment in its conclusion held that, dignity which forms a part of privacy protects the right to marriage, procreation and sexual orientation of a person. Further it was concluded that ‘sexual orientation is an essential attribute of privacy’ whose protection lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. Therefore, any discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.42 In Navtej Singh Johar v. Union of India,43 the Apex Court while decriminalizing consensual same-sex relationships, earmarked the need for enacting more laws to sensitize the society and create an environment which is conducive for the growth of the gay community. In Navtej, the issue for consideration before the Supreme Court was whether Section 377 of the IPC, criminalizing consensual sexual intercourse between persons of the same sex is Constitutional or not. In effect, it was also a review of the previously decided case of Suresh Koushal v. Naz Foundation44 in which the Apex Court had answered the same question in the negative. The Suresh Koushal judgment was unanimously overruled by all the five judges deciding the Navtej case, holding that Section 377 was discriminatory and arbitrary in nature for punishing same-sex relationships. The Court ruled that since unnatural offenses are already punishable under Section 375 of Indian Penal Code and Protection of Children from Sexual Offences (POCSO) Act, the objective of protection of women and children as an objective of Section 377 had no reasonable nexus with the classification. Hence, it was held to be contrary to Article 14 of the Constitution and that unequal treatment of the LGBTQ community was also a violation of Article 14.

39

(2009) 9 SCC 1. (1994) 6 SCC 632. 41 Id at para 26. 42 Supra note 38 at para 125. 43 AIR 2018 SC 4321. 44 (2014) 1 SCC 1. 40

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Further, the Court acknowledged the right of self-expression of individuals belonging to the LGBTQI community. It was noted by the Court that an unreasonable restriction on acts in private space can have a chilling effect on a person’s freedom of choice. Also, it was held that Section 377 was violative of human dignity, decisional autonomy and the fundamental right to privacy. It was opined that every individual had the right to choose their sexual orientation, seek companionship and exercise it within their private space. Then, in the National Legal Services Authority v. Union of India,45 the Supreme Court of India recognized transgenders as a ‘Third Gender’ having equal rights to jobs, education, etc., and hence this judgment laid down the foundation for further developments—judicial, legislative and executive—on transgender rights and issues. The Apex Court looked into various aspects of transgender rights in the course of deciding this case. It looked at the international trends regarding the recognition of transgender right particularly the rights pertaining to determination of gender identity without requiring gender affirming surgery or hormone therapy, in addition to various foreign legislations such as Australia’s Sex Discrimination Act of 1984 and Sex Discrimination (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, UK’s Gender Recognition Act 2004 and Argentina’s Gender Identity Law 2012 that guaranteed not just equal rights but also legal and social entitlements to gender non-conforming individuals. The Court finally held that Hijras/Eunuchs be treated as the ‘third gender’ apart from the binary gender, viz. male and female, for the purpose of safeguarding their rights under Part III of the Indian Constitution. Further, the Court issued several directions to the Central and State Governments to make laws with respect to their recognition as the third gender, recognizing them as socially and educationally backward citizens and thereby extending them reservation in admission to educational institutions and appointments to public offices. The Court also issued directions to governments to operate separate HIV Serosurveillance Centres for the transgender community since they were exposed to several sexual health risks and also to provide them with separate public toilets. Lastly, the Court directed the governments to frame necessary welfare policies for the community and to spread awareness so that they gain the necessary dignity and respect within the society, which is a fundamental right of every citizen of the country. In fact, after the NALSA judgment, it became possible in India that one could self-identify as belonging to ‘third gender’ in government issued identity cards such as Passport, Voter identity cards, Aadhar and PAN card, as well as in university application forms and bank application forms. Further, according to the directives provided by the Supreme Court, the government passed the Transgender Persons (Protection of Rights) Act, 2019 wherein the definition of transgender persons included transman or transwoman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender-queer and person having

45

(2014) 5 SCC 438.

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socio-cultural identities such as kinner, hijra, aravani and jogta46 and provided them the right to self-perceived gender identity.47 The said Act also prohibited discrimination against members of the transgender and placed a mandate on the part of the government to take various welfare measures ensuring full and effective participation of transgender persons and their inclusions in the society.48

5.3.1

Homosexuals/Transgender Persons and Their Right to Surrogacy

As discussed above, the Apex Court in India in multiple cases has re-iterated that the right to procreate and the right to reproductive autonomy forms part of the right to privacy under Article 21 of the Constitution and no individual can be denied the same on the basis of their sexuality, marital status and Nationality. At this juncture, it becomes relevant to look into the provisions of the bills proposed so far to find out the ideologies and the shift with respect to allowing homosexuals and single persons in rearing families via surrogacy. The analysis is as under: (i) The Assisted Reproductive Technology (Regulation) Bills, 2010 & 2014 The Assisted Reproductive Technology (Regulation) Bill, 2010 provided assisted reproductive services to all single persons, heterosexual married and unmarried couples as the term couple was defined as ‘two persons living together and having a sexual relationship that is legal in India.49 Further Sect. 2 (v) defined married couple as ‘two person whose marriage is legal in the country/countries of which they are citizens’ and Sect. 2(dd) defined unmarried couple as ‘two person both of marriage age, living together with mutual consent but without getting married in a relationship that is legal in the country/countries of which they are citizens.’ Therefore, the bill came under severe criticism for partaking within its scope only heterosexual couples. On the contrary, however, in the Baby Manji case, the Supreme Court observed that ‘the intended parent may be a single male or a male homosexual couple’. While the Draft Bill 2010 was awaiting nod by the Parliament, the Indian Ministry of Home affairs (MHA) has, in the interregnum, on 9 July 2012, issued new visa regulations for people coming to India seeking surrogacy. These regulations declared medical surrogacy visa as an appropriate visa category for Intended Parents to be granted subject to the following conditions:

46

The Transgender (Protection of Rights) Act, 2019, s. 2(k). Available at https://www.indiacode. nic.in/bitstream/123456789/13091/1/a2019-40.pdf. 47 Id., s. 4(2). 48 Id., s. 8(1). 49 The Assisted Reproductive Technology (Regulation) Bill, 2010. s. 2 (h).

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(i) ‘The foreign man and the woman are duly married and the marriage should have sustained at least for two years (ii) A letter from the Embassy of the foreign country in India or the Foreign Ministry of the country should be enclosed with the Medical Surrogacy VISA application stating clearly that (a) the country recognizes surrogacy and (b) the child/children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/children of the couple commissioning surrogacy (iii) The couple will furnish an undertaking that they would take care of the child/children born through surrogacy (iv) The treatment should be done only at one of the registered ART clinics recognized by ICMR (The list of such clinics will be shared with MEA from time to time) and (v) The couple should produce a duly notarized agreement between the applicant couple and the prospective Indian surrogate mother. (vi) If any of the above conditions are not fulfilled, the surrogacy visa application shall be rejected. (vii) Before the grant of visa, the foreign couple need to be told that before leaving India for their return journey, ‘exit’ permission from the FRRO/FRO would be required. Before granting ‘exit,’ the FRRO/FRO will see whether the foreign couple is carrying a certificate from the ART clinic concerned regarding the fact that the child/ children have been duly taken custody of by the foreigner and that the liabilities towards the Indian surrogate mother have been fully discharged as per the agreement. A copy of the birth certificate(s) of the surrogate child/children will be retained by the FRRO/FRO along with photocopies of the passport and visa of the foreign parents (viii) It may be noted that for drawing up and executing the agreement cited at para 2 (v) above, the foreign couple can be permitted to visit India on a reconnaissance trip on Tourist Visa, but no samples may be given to any clinic during such preliminary visit.50’ (ix) These guidelines may kindly be circulated at all the missions for strict compliance.” and thus it prohibited, clearly, single parent, gay couples and unmarried partners from commissioning surrogacy arrangements in India which were permissible till late. Thereafter, on September 30, 2015 the Ministry of Health and Family Welfare (MOHFW), through its Department of Health Research (DHR), published the Assisted Reproductive Technology (Regulation) Bill, 2014 for public and stakeholder inviting comments and suggestions by November 15, 2015. While the enactment of said bill was still under consideration, a letter dated 4.11.2015 was issued by the Ministry of Health and Family Welfare, with its copy being marked to 50

Guidelines Regarding Foreign National Intending to Visit India for Commissioning Surrogacy (2012). Available at https://main.icmr.nic.in/sites/default/files/art/2.pdf. Accessed Feb 20, 2016.

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all the concerned departments. Vide the said letter dated 4.11.2015, the Ministry of Health and Family Welfare, conveyed its policy decision to prohibit commercial surrogacy till the enactment of the legislation and has issued certain instructions which are mandatorily to be followed, till the enactment of the legislation. The instructions issued were as under: (i) Prohibition on import of ‘human embryo’ except for research purposes and (ii) Restrictions on issuance of visa to foreign nationals and permissions to OCI visiting India for commissioning surrogacy (iii) Denial of exit permission to child/children born through surrogacy to foreign nationals/OCI except in cases where birth has taken place prior to the issuance of these instructions and (iv) Cancelation of visa/permissions granted, if any, subsequent to the issuance of these instructions.51 Though the proposed ART Bill 2014 took forward the provisions of the ART Bill 2010 however on the issue who can opt for surrogacy, it provided that it could be availed only by Indian couple or OCIs, PIOs, NRIs and foreigners married to Indian citizens. (Sect. 60 (11) (a) whereas in 2010 Bill it was available to foreigners also and there was no such requirement that foreigner should be married to the Indian citizen. The Draft Bill 2014 also shut the door on homosexuals and further by requiring commissioning couples to be married the Bill prohibited singles from having a child via surrogacy. However, under ART Bill 2010 single individuals can also avail surrogacy. (ii) The Surrogacy (Regulation) Bills 2016, 2019 and 2020 The Surrogacy Bill of 2016 allowed only Indian heterosexual married couple to avail surrogacy services and created a bar on couples who can have the capability of procreating normally. The 2016 Bill clearly specified that the word ‘couple’ means ‘legally married Indian man and woman above the age of 21 years and 18 years, respectively.’52 The bill also made it mandatory for the couple or the ‘intending couple’ to be medically certified as an ‘infertile couple’ to avail surrogacy services.53 Therefore, making it mandatory on part of the intended legally married couples, who have been married for at least 5 years and the wife being aged between 23 to 50 years and the husband being between 26 to 55 years of age, to get

51

Ministry of home affairs instructions dated November 3, 2015-Foreign nationals [including Overseas Citizen of India (OCI) cardholders] intending to visit India for commissioning surrogacy. Available at https://www.mha.gov.in/PDF_Other/surrogacy03112015.pdf. Accessed Feb 20, 2016. 52 The Surrogacy Regulation Bill, 2016, s. 2(g). Available at https://prsindia.org/Billtrack/thesurrogacy-regulation-Bill-2016. 53 Id., s. 2(r).

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a Certificate of Eligibility54 and Certificate of Essentiality from the appropriate authority along with an order concerning parentage and custody of the child passed by the Court of Magistrate.55 The bill further prohibited intending couple to take recourse to surrogacy if they were already having a surviving biological, surrogate or adopted child of their own with the exception that the surviving child is either physically or mentally challenged or suffers from a life threatening disease or fatal illness with no permanent cure and which illness is approved by the appropriate authority along with a medical certificate from a District Medical Board, with such other conditions as may be specified by the regulation.56 The bill also mandated the intending couple to execute an insurance coverage in favor of the surrogate mother by an insurance company or an insurance agent recognized by Insurance Regulatory Development Authority (IRDA).57 Subsequently in the year 2019 Surrogacy (Regulation) Bill 2019 was introduced by the cabinet and which was mostly identical to the 2016 Bill infested with the same drawbacks as were there in the 2016 Bill including the deprivation to Homosexuals and Third Genders from opting surrogacy. The 102nd Parliamentary Standing Committee Report on The Surrogacy (Regulation) Bill, 2016 and the Report of the Select Committee on The Surrogacy (Regulation) Bill, 2019 also remained silent on this aspect despite the fact that after the NALSA judgment passed in 2014 by the Indian Supreme Court, it became possible in India that one could identify oneself as belonging to ‘third gender’ and became entitled to the necessary dignity and respect within the society being a fundamental right available to every citizen regardless of its sexual orientation and which right was in addition to the statutory recognition granted under The Transgender (Protection of Rights) Act, 2019. This was a major shortcoming in both the bills and drew flak from many. It is also pertinent to note that some members and stakeholders involved in the drafting of 2016 and 2019 Bills desired to include ‘single men’ (including divorcees and widows), live-in and gay couples in the eligible category for availing surrogacy services but ultimately, it was not included in the recommendations. The proponents of inclusion argued that not including the above-mentioned category of persons in the bill would be violation of not just right to equality but also violative of their right to reproductive autonomy under Article 21 of the Constitution of India, 1950 especially after the landmark judgments pronounced by the Apex Court of the country upholding the rights of homosexuals and transgender by affirming that they are equally entitled to the fundamental rights granted in the Constitution.58 Now coming to the present Surrogacy Regulation Bill, 2020, it makes available the facility of availing surrogacy services for not just a, Indian heterosexual married couple but it also allows an ‘intending woman’ the liberty to do so. Similar to the

54

Id., s. s. 4(iii) (c)(I-III). Id., s. 4(iii) (a)(I-III). 56 Supra note, 54. 57 Supra note, 55. 58 Navtej & NALSA cases, supra note 43 & 45. 55

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2016 and the 2019 Bill, the term ‘couple’ has been defined as ‘legally married Indian man and woman above the age of 21 years and 18 years, respectively.’59 Further, an ‘intending couple’ has been defined as a couple who have a ‘medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy.’60 An intending woman has been defined by the bill as ‘an Indian woman who is a widow or divorcee between the age of 35–45 years and who intends to avail the surrogacy.’61 Thus, the recommendation of both the committee reports have been heeded to and single women have been provided with the opportunity to secure parenthood through surrogacy. However, the present bill still does not seems to be consonant with the judgments pronounced the Supreme Court of India with respect to right to life and privacy of transgenders and homosexuals and the right to privacy as part of right to life and personal liberty in general as laid down in the cases of K.S. Puttaswamy v. Union of India; National Legal Services Authority (NALSA) v. Union of India and Navtej Singh Johar v. Union of India. Thus it can be seen that the bills proposed in India so far by placing transgender persons and same-sex couples in a disadvantageous position when compared with heterosexual couples are manifestly arbitrary and reflects a narrow and conservative mindset on the part of the law makers. In fact, very recently, the Central Government filed an affidavit before the Delhi High Court in reply to a petition titled Abhijit Iyer Mitra v. UOI & Ors62 filed in the year 2020 praying for securing marriage rights for the LGBTQI + community under the Hindu Marriage Act, 1955. The Central Government claimed in the affidavit that marriage in India is a sacrosanct institution between a biological man and a woman63 and same-sex couples cannot claim a fundamental right to marry despite the Navtej Singh Johar judgment decriminalizing homosexuality in 2018 on the ground that the said judgment did not extend the right to privacy to include a fundamental right to marry by two individuals of the same gender. The affidavit further stated that the matter was of such a nature which should be decided by the legislature and not by judiciary.64 It is pertinent to note here that this kind of reply on the behalf of Central Government in India is very heart wrenching and its impact can be seen in the surrogacy laws being framed/proposed to be framed. Surrogacy rights for the LGBTQI + community is a matter which has been dealt with differently in different jurisdictions. While International Conventions like the ICCPR and Yogyakarta Principles desire that members from the LGBTQI + community be treated on an

59

The Surrogacy Regulation Bill, 2020, s. 2(g). Available at https://prsindia.org/files/Bills_acts/ Bills_parliament/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf. 60 Id., s. 2(r). 61 Id., s. 2(s). 62 Abhijit Iyer Mitra v. Union of India W.P.(C) 6371/2020. 63 Mandhani (2021). 64 Samanwaya Rautray (2021).

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equal footing like everyone else, a lot of its signatories and members are still hesitant in applying the principles in practice.

5.3.2

Live-In Couples and Their Right to Surrogacy

Talking about live-in couples and their right to surrogacy, it is seen that they have escaped the attention of the law makers while drafting the Surrogacy (Regulation) Bill 2016. However, the 102nd Report on the 2016 Bill did remark that by not including live-in couples within the purview of surrogacy, the bill was too narrow in its approach and not in consonance with the modern social milieu and therefore, recommended amendments in the provisions.65 Even after the recommendation, the Surrogacy (Regulation) Bill 2019 did not contain provisions permitting surrogacy for live-in couples nor the 2019 Report of the Select Committee contained any recommendations to allow live-in couples to avail surrogacy services. Consequently, the 2020 Bill also does not contain provisions regarding the same and only allows heterosexual married couples to avail surrogacy. It is pertinent to mention that the Draft ART Bill 2008 and 2010 did allow unmarried couples to avail the services of Assisted Reproductive Technologies for begetting a child.66 In 2010, the Supreme Court in the case of S. Khushboo v. Kannaimal67 held that though live-in relationships may be viewed as a taboo by a certain section of the society, however, it is not illegal if the two individuals are adults. Later in 2011, the Supreme Court in the landmark case of D. Veluswami v. D. Patchaimmal68 held that live-in relationships may be considered to be immoral according to the society but it is not illegal in the eyes of the law. It further opined that living together for a part of the right to life under Article 21 and hence could not be held illegal. Despite judicial recognition of unmarried couple, the ART Bill (2014) and the Surrogacy (Regulation) Bills of 2016, 2019 and 2020 have failed to recognize them for the purposes of availing surrogacy.

5.3.3

Singles and Their Right to Surrogacy

With respect to singles and their right to procreate via surrogacy, though the Draft ART Bills of 2008 and 2010 did allow singles to avail ART services, 65

Department Related Parliamentary Standing Committee on Health and Family Welfare (2017), 102nd Report on the Surrogacy Regulation Bill, 2016, para 5.40, p 29. Available at http://164.100. 47.5/committee_web/ReportFile/14/100/102_2018_6_15.pdf. Accessed June 8, 2018. 66 Assisted Reproductive Technology (Regulation) Bill 2008, s. 32; Also see Assisted Reproductive Technology (Regulation) Bill, 2010 s, 2 (dd). 67 (2010) 5 SCC 600. 68 AIR 2011 SC 479.

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however, as mentioned earlier, the 2016 Bill did not allow anybody apart from married heterosexual Indian couples to avail the surrogacy benefits. Single persons, both men and women, whether divorced, widowed or unmarried like homosexuals, transgenders and live-in couples, were not included as the beneficiaries under the bill. The 102nd Report on the 2016 Bill did mention that by keeping widowed and divorced women out of the purview of surrogacy, the bill has ignored the ground realities of the Indian society where the social status of a woman is adjudged by her reproductive life.69 The report recommended that suitable changes be made in the bill to incorporate divorced women and widows into the fold of surrogacy. Later in the year 2019, the Surrogacy (Regulation) Bill, 2019 was introduced. However, the 2019 Bill was an almost identical version of the 2016 Bill and did not incorporate any of the recommendations of the Report. A reading of the Surrogacy (Regulation) Bill, 2020 reveals that it extends the facility to avail surrogacy services not just to an Indian heterosexual married couple but also to an ‘intending woman.’ An intending woman has been defined by the bill as ‘an Indian woman who is a widow or divorcee between the age of 35–45 years and who intends to avail the surrogacy.’70 Thus, the recommendation of both the Parliamentary and Standing Committee Reports on the 2016 and 2019 Bill have been heeded to and single women have now been given the opportunity to become parents via surrogacy. However, the bill, while it incorporates single women between the age of 35– 45 years who are either widows or divorcees into the surrogacy fold, neglects a huge chunk of the society by leaving out unmarried couple, single unmarried women, single unmarried men, gays, lesbians and transgenders. Leaving out single unmarried men and women who are not widows or divorcees can amount to violation of Article 14 of the Constitution, i.e., the right to equality. It is also a violation of right to reproductive autonomy granted under Article 21 of the Constitution.

5.4

Conclusion

As can be witnessed from the discussion made in this chapter it is apparent that in the twenty-first century, concepts such as same-sex and live-in relationships along with single parenthood are increasingly finding greater acceptance in societies across the globe. Several countries around the world have provided the facility of using a surrogate to persons other than heterosexual couples in line with the Yogyakarta Principles and the ICCPR. Even the Supreme Court of India on multiple occasions has asserted that civil liberties pertaining to dignity, privacy and autonomy of live-in couples, transgender persons and LGBTQ persons fall within the ambit of right to privacy under Article 21 of the Constitution. Since these rights

69

Department Related, supra note 65. Surrogacy Bill, 2020. Supra Note 59 s. 2(s).

70

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apply uniformly to every citizen of the country, by not proposing to include single men and unmarried single women, same-sex couples, live-in couples and LGBTQ persons within the fold of persons who can avail surrogacy, the Indian government seems to be arbitrarily discriminating against above-mentioned communities. Becoming a parent and starting a family is an essential part of a person’s life which aids in his or her growth along with providing a feeling of happiness and contentment which is essential for leading a happy and dignified life. Thus, by not granting such persons the right to avail surrogacy services, the government is depriving them of their right to choice, dignity and reproductive autonomy and consequently, their right to life. Therefore, it is important that the Surrogacy (Regulation) Bill 2020 be amended to provide the right to surrogacy to members forming part of the aforementioned community.

References

Cases Abhijit Iyer Mitra v. Union of India W.P.(C) 6371/2020. D. Veluswami v. D. Patchaimmal AIR 2011 SC 479. Jan Balaz v. Anand Union AIR 2010 Guj 21. National legal Services Authority v. Union of India (2014) 5 SCC 438. Navtej Singh Johar v. Union of India AIR 2018 SC 4321. Rajagopal, R. v. State of Tamil Nadu. (1994). 6 SCC 632. Khushboo, S., Kannaimal, V. (2010). 5 SCC 600. Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1. Suresh Koushal v. Naz Foundation. (2014). 1 SCC 1.

International Conventions International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976). International Commission of Jurists. (2007). Yogyakarta Principles—Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. Available at https://www.refworld.org/pdfid/48244e602.pdf. Accessed 31July 2018. International Commission of Jurists. (2017). Yogyakarta Principles Plus 10—Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. Available at http://yogyakartaprinciples.org/wp-content/uploads/2017/11/A5_ yogyakartaWEB-2.pdf. Accessed 31 July, 2018.

Statutes/Legislations The Transgender (Protection of Rights) Act, 2019

Books

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Books Khazova, O. (2013). Russia. In: K. Trimmings & P. Beaumont, eds. International Surrogacy Arrangements: Legal Regulation at the International Level. s.l.:s.n., pp. 311–324.

Journal Articles/Online Articles New law legalizes paid surrogacy in New York; opens up options for the families . Available at https://www.newsday.com/lifestyle/family/surrogacy-law-new-york-1.50151620. Accessed on 1March 2021. Samanwaya Rautray. (2021). Same sex marriages cannot be given legal sanction: Government. Available at https://economictimes.indiatimes.com/news/politics-and-nation/same-sex-partners-notcomparable-with-indian-concept-government/articleshow/81209328.cms?from=mdr. Accessed 25 March, 2021. The Moscow Times. (2021). Russia Considers Banning Surrogacy for Unmarried People, Foreigners https://www.themoscowtimes.com/2021/01/20/russia-considers-banning-surrogacy-for-unmarriedpeople-foreigners-rbc-a72668Jan20, 2021 Accessed February 15th, 2021

Guidelines Guidelines Regarding Foreign National Intending to Visit India for Commissioning Surrogacy (2012). Available at https://www.mha.gov.in/PDF_Other/surrogacy03112015.pdf. Accessed 20 Feb, 2016 Ministry of home affairs instructions dated November3, 2015-Foreign nationals [including Overseas Citizen of India (OCI) cardholders] intending to visit India for commissioningsurrogacy. Available at https://www.mha.gov.in/PDF_Other/surrogacy03112015.pdf. Accessed 20 Feb 2016. Perrin, E. C. (2002). Committee on psychological aspects of child & family health, technical report: Co parent or second-parent adoption by same-sex parents. Pediatrics, 109(2), 341–344. Department Related Parliamentary Standing Committee on Health and Family Welfare (2017), 102nd Report on theSurrogacyRegulationBill, 2016, para 5.40, p 29.Available at http://164. 100.47.5/committee_web/ReportFile/14/100/102_2018_6_15.pdf. Accessed June 8, 2018.

Chapter 6

Conclusion and Suggestions

6.1

Conclusion

Assisted Reproductive Technologies came as a boon for every couple who were unable to beget a child for various reasons. Whether it is artificial insemination, a procedure known since medieval times and practiced on horses for their breeding or whether it is the recently devised technique of in vitro fertilization where the process of fertilization occurs outside the body, literally inside a test tube, Assisted Reproductive Technology has been practiced since long. The procedure of surrogacy, however, provides another option and it is surrogacy only which has proved to be the most widespread yet the most controversial of all the ART practices. Its supporters call it the gift of life, whereas it was termed as wombs for rent by its critics. Surrogacy provides an option not just for infertile couples but even to gays, lesbians and single men and women to beget a child. It has brought immense joy in the life of various people across the globe by begetting them a child, a dream unconceivable for many. It may lead us to believe that since the practice helps in procurement of children, it must be enjoying wide acceptance and acclaim. But this is hardly the case. The practice is marred with several legal, moral, ethical and social issues and objections since it not just interferes with the natural process of reproduction but also makes the entire process of procreation, a contractual and transactional process. This does not blend well with the traditional and orthodox elements of the society. It is not an isolated phenomenon in itself. Myriad of social issues overlap such as gender equality, children’s rights, wealth distribution, race, color, etc. which play a defining role in determining familial relationships. Similarly, various legal issues pertaining to the right of the new born child, the right of the surrogate mother, intended parents and the involvement of third parties are also involved. Thus, framing a legislation on surrogacy has posed severe social, judicial and legislative challenges to Courts and policy makers across jurisdictions. In fact, today cross-border surrogacy agreements form part of a rapidly growing medical tourism industry, and despite the significant increase in the number of © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 H. Kaur, Laws and Policies on Surrogacy, https://doi.org/10.1007/978-981-16-4349-1_6

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cross-border surrogacy arrangements, the reception and regulation of surrogacy continues to remain diverse between nations. For instance, Israel recognizes only gestational State Regulated Surrogacy while surrogacy laws of the various Federal States of the USA vary from one State to another. While one State provides for a total prohibition with criminal sanctions, there are States where regulations are moderate and then there are States where there is a complete freedom to contract. Altrustic surrogacy arrangements in UK are subject to a framework which is a combination of Surrogacy Arrangements Act 1985 and the Human Fertilization and Embryology Act 2008 (‘HFEA 2009’). Most of the States in Australia and the Australian Capital Territory (ACT) recognize only altruistic surrogacy arrangements, subject to extensive and various requirements of their own legislations. Canada and New Zealand, while permitting altruistic surrogacy, have declared commercial surrogacy illegal since 2004, whereas surrogacy in any form has been declared as unlawful in France, Germany, Sweden, Italy, Norway and Hong Kong. At the same time, in Iran, gestational surrogacy is being practiced as a cure for infertility. In Japan, in 2008, the Science Council of Japan (SCJ) recommended the prohibition of domestic surrogacy but suggested that interested couples may seek cross-border surrogacy and subsequently adoption in order to achieve their goal of becoming the child’s legal parents. Similarly, Nepal, Thailand, Cambodia and Mexico once had flourishing unregulated transnational gestational care markets but have now moved to banning compensated surrogacy rather than legalizing and regulating the same. At the same time, several countries around the world provide the facility of using a surrogate to persons other than heterosexual couples in line with the Yogyakarta principles. Countries such as the UK, some states in the USA, Canada, etc. allow singles, LGBTQI+ persons along with married and unmarried heterosexual couples to do so in contrast to countries like Israel which allows only heterosexual, married and unmarried couples to avail the services of a surrogate. However, if a person of homosexual orientation succeeds in creating a child abroad, using his sperm, a donated egg and a surrogate mother in a country where it is legally permissible and obtains a birth certificate of that nation which shows him as the registered father, he gains recognition as a biological parent under Israeli law. Also, same-sex couples cannot seek surrogacy in Thailand since Thailand does not recognize same-sex marriage. Further, in countries such as Ukraine, Georgia and Russia, commercial surrogacy is unregulated and is available only to heterosexual married couples. So far India is concerned, the legislations proposed so far seems to be excluding same-sex couples too in addition to live-in couples, transgenders and single men and women. This lack of uniformity in surrogacy laws stems from the fact that there is no international agreement, convention or a standard regarding surrogacy law at present and which has led to a lot of confusion and in turn has given rise to a lot of legal ramifications for people who are unable to conceive a biological child of their own and seek surrogacy as a viable means to do so. While it is agreed that adoption is available as an option for such people who desire to start a family but the lure of having a child who is biologically related cannot be overstated

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Also, the discussion made under Chap. 4 titled ‘Surrogacy Arrangements: The Stake Holders Perspectives’ revealed how the lack of legislative frameworks in various countries which worked to the benefit of commissioning couples/intended parents backfired in the absence of any coherence in different jurisdictions regarding cross-border surrogacy arrangements. The cases of Baby Manji Yamada, Jan Balaz, Goldberg Twins Case and Volden case, etc. clearly exposed the problems which intended parents faced due to a lack of proper legal framework, and as a result, the commissioning parents could not establish their legal parenthood and their child’s national identity. Further, due to the manifold growth in surrogacy worldwide and especially in India, various cases from different nations globally brought to light the various problems which such children encountered and most of which were relating to legal parentage and nationality, citizenship and right to travel documents. But at the same time, it was seen, whenever international commercial surrogacy raised complicated legal questions, the major challenge for authorities and Courts faced with such cases was to ensure the welfare and best interests of the child. In fact, the judiciary all over the world played a significant role in protecting the interests of child and has graduated from the ‘doctrine of welfare of children’ to the doctrine of ‘best interest of children’ by liberalizing their interpretation to safeguard the interests of children. In the famous Baby M case,1 the New Jersey Supreme Court, though allowed custody in the ‘best interest of the child’ to the commissioning parents, it nevertheless concluded that a surrogacy contract was against public policy. The Tennessee Supreme Court set out the analytical framework for such disputes in Davis v. Davis2 and stated that when there is no agreement, a balancing test, which takes into account each party’s interests in becoming a parent, including the existence of other alternatives and the planned use of the embryos, should be used.3 In the context of posthumous reproduction, i.e., making use of stored embryos after the death of father, the Court in the case of Woodward v. Commissioner4 held that children conceived after death of father will have inheritance rights by proving that the father had agreed to posthumous conception support. On June 26, 2014, the European Court of Human Rights released a long awaited judgment on two cases titled Mennesson v. France and Labassees v. France5 which involved French couples who had commissioned surrogacy through surrogate mothers from USA. Since the facts were similar in both cases, the Court passed an identical ruling. In 2000 and 2001, the Mennessons on the one hand and the Labassees on the other obtained children through surrogate mothers following an oocyte donation in the USA—where surrogacy and oocyte donations are remunerated. The Court examined surrogacy from the point of view of surrogate children and held that France’s refusal to recognize or permit the establishment of

1

537 A.2d 1227 (NJ 1988). 842 S.W.2d 588 (Tenn. 1992). 3 Id., at 603. 4 760 N.E. 2d at 259. 5 Dated 26 June 2014. Application numbers 65192/11 and 65, 941/11 respectively. 2

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the legal relationship between children and their genetically related intending fathers, violated Article 8 of the European Convention on Human Rights (‘ECHR’) concerning the children’s right to respect for their private life. In two Ukrainian cases—Re: IJ (A child)6 and Re: X&Y (Foreign surrogacy)7, the British Court favored the welfare of the child over public policy concern about commercial surrogacy and ordered entry of these children in the UK, thereby bypassing its national legislation prohibiting commercial surrogacy. In the year 2020, the English Court was confronted with the issue of grant of a parental order in Re X [2020[EWHC 39]8 where four months prior to the birth of the surrogate child, the intended father, who had donated gamets, suddenly died. Having no other option, the intended mother filed an application seeking grant of parental order and the said application was filed by the intended mother jointly in the name of the intended father [who was no longer living], as she could not have applied in her own name owing to the conditions laid under Section 54 of the Human Fertilization and Embryology Act 2008. The Court, after considering all the facts and the peculiar situation with which it was faced with, while holding the welfare of the child to be of paramount importance, granted the parental order in the name of the intended parents. The primary reason which weighed with the Court was that non-grant of the parental order would mean depriving the child from legal recognition and relationship with his father and which amount to breach of the child’s right to enjoy the rights enshrined under Article 8 of the European Convention on Human Rights (ECHR). And in this manner, the Court read down Section 54 (1), (2) (a), (4) (a) of the HFEA 2008. Similarly, again in the case of Re: A (Surrogacy s. 54 Criteria) [2020],9 a parental order was granted despite the commissioning parents having been separated at the time of application for grant of parental order and the separated father having minimal contact with the child. In fact, in this case, the Court held that the word ‘home’ must be accorded a wide and purposive interpretation and must not be held to mean that the applicants must be living together under one roof. The Court observed that an outdated legislation should not be allowed to prevent the welfare of a child who is placed at the center of any surrogacy arrangement. In reaching these decisions, the Court placed reliance on Article 8 of the ECHR. Above decisions, therefore, point out that the best interests of the child require recognition of his/her legal parentage and that the child cannot be made responsible for the actions of adults. Also, in India, in the case of K. Kalaiselvi v. Chennai Port Trust10 and P. Geetha v. The Kerala Livestock Development Board ltd11 while emphasizing on the

6

Re: IJ (A child) [2011] EWHC 291 (Fam). Re Xand Y (Foreign surrogacy) [2008] EWHC 3030 (Fam). 8 Re X [2020] EWHC 39. 9 Re: A (Surrogacy s. 54 Criteria) [2020] EWHC 1426 (Fam.). 10 2013 (2) KLT 567. 11 2015 (1) KLJ 494. 7

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necessity of bonding of the commissioning mother with the child born via surrogacy arrangements in both the cases, the commissioning mother was held to be entitled for maternity leave. Subsequently, in Rama Pandey v. Union of India & Ors.,12 the Court employed a legal technique known as ‘updating principle’ and observed that advancement in science and changes in societal attitude often raise concerns which requires Courts to infuse fresh insight into existing law. Accordingly, the Court ruled that women having child through surrogacy are also entitled to avail the maternity leave. Very recently, the Himachal Pradesh High Court in Sushma Devi v. State of Himachal Pradesh and others13 held that a surrogate mother is entitled to maternity leave benefits under Rule 43(1) of CCS (Leave) Rules, 1972. It was opined by the Court that it would be an ‘insult to womanhood’ if one distinguishes between motherhood as a result of surrogacy and natural motherhood. It was further observed by the Court that motherhood does not end with the birth of the child, and thus, a commissioning mother cannot be denied paid maternity leave. Therefore, provisions regarding maternity leave should be incorporated in the bill so that both surrogate mother and the commissioning mother are not discriminated against just because they were involved in a procedure that was not natural. However, it is apposite to mention here that this approach of the judiciary is only a temporary measure. The permanent solution is to have a well-drafted regulation governing surrogacy. Also, the discussion made under the foregoing chapters revealed as to how surrogate mothers are most vulnerable in any surrogacy arrangement. Often seen in majority of the cases, the surrogate mother is from the most backward strata of the society with low educational levels and from families whose financial conditions are extremely poor. Talking about the developing nations, the poverty, illiteracy and vulnerability of the families put pressure on women to offer their wombs on rent. Often they are persuaded to become surrogates by their husbands or middlemen to earn money. They have no autonomy on their bodies and their life. This leaves them vulnerable to exploitation by much prosperous intended parents and surrogacy professionals. These conditions therefore, do not create a level playing field for surrogates’ vis-à-vis intended parents and again indicates the urgent need to frame stringent laws regulating surrogacy giving women the autonomy over their bodies with a right to be a surrogate and simultaneously providing a watertight framework protecting their medical and commercial rights. It is in such situations that the need for a single and unified international regulation is felt and, therefore, it is necessary to have in place, a global mandate applicable to all in order to have a controlled and a principled practice of surrogacy. This is precisely the need of the hour today and the first step toward this goal has been taken by the Hague Conference on Private International Law. The primary focus of the conference was to determine the status of surrogacy arrangements

12

2015 221 DLT 756. CWP No. 4509 of 2020.

13

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under the private international law and also to ascertain the status of a child born through international surrogacy. The Hague Conference has identified the basic criteria that would need to be covered by a comprehensive international and multinational agreement. It suggests a uniform set of rules on the jurisdiction of Courts or other authorities to make decisions as to the legal parentage which would have a general effect, uniform rules on the applicable laws governing the surrogacy arrangements and corresponding rules providing for the recognition and enforcement of parental decisions relating to legal parentage. Further in its 2014 report, the Permanent Bureau recommended that any future work looking to include coverage of ISAs (e.g., a ‘stand-alone’ instrument, or work as part of a broader instrument) should include certain minimum fundamental substantive safeguards concerning ISAs. (Already been discussed in Chap. 4 under the heading ‘Need of an International Regulation for Surrogacy.’ Taking Specifically about India, it was Baby Manji Yamada v. Union of India14 in 2008 that sparked an intense public debate on commercial surrogacy in India and recognized the need for a comprehensive and effective legislation on commercial surrogacy and it was only after the Baby Manji case, the Law Commission of India, in August , 2009, in its 228th Report, titled ‘Need for Legislation to Regulate Assisted Reproductive Technology Clinics As Well As Rights and Obligations of Parties to a Surrogacy,’ strongly advocated for altruistic surrogacy subject to proper regulations in order to safeguard women exploitation. The Report also submitted a Draft Assisted Reproductive Technology (Regulation) Bill, 2008 which was replaced by the Draft Assisted Reproductive Technology (Regulation) Bill, 2010. The 2010 Bill contained extensive provisions regarding protection of the rights of surrogate mother and the child but unfortunately could not pass the test of legislative scrutiny of the Indian Parliament. While the draft ART Bill 2010 was still waiting to be passed, the Ministry of Home Affairs, India, on July 9, 2012, issued new visa regulations for people traveling to India for surrogacy purposes. Pursuant to the new guidelines issued by the Home Ministry, foreigners who were gay, single, have live-in partners or have been married for less than two years were no longer be able to employ a surrogate in India to experience parenthood.15 Only a couple married for two years could apply for a medical visa for surrogacy and they also must demonstrate that their home country would recognize the child born from the surrogacy arrangement as their biological child and grant them the citizenship. All these conditions had been passed to protect the interest of the children so born, being essential after a number of cases where children born of surrogacy arrangements have been left ‘stateless' and were left stranded in a bureaucratic nightmare.However, the guidelines stated supra were condemned by fertility clinics and gay rights activists as restrictive and discriminatory. In the year

14

(2008) 13 SCC 518. Ministry of Home Affairs Guidelines Regarding Foreign Nationals Intending to Visit India for Commissioning Surrogacy (2012), available at https://www.mha.gov.in/PDF_Other/ surrogacy03112015.pdf. Accessed 20 Feb, 2016.

15

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2014, Assisted Reproductive Technology (Regulation) Bill, 2014 was introduced which took forward the provisions of the 2010 Bill. However, it met the same fate as the 2010 Bill and could not get the shape of law. The fact that the enactment of said bill was still under consideration, the Ministry of Health and Family Welfare, vide a letter dated 4.11. 2015 with its copy marked to all the concerned departments conveyed its policy decision to prohibit commercial surrogacy till the enactment of the legislation while issuing certain instructions which were mandatorily to be followed, till the enactment of the legislation such as prohibition on import of ‘human embryo’ except for research purposes; restrictions on issuance of visa to foreign nationals and permissions to OCI visiting India for commissioning surrogacy, etc. Later, in the year 2017, the Draft Assisted Reproductive Technology (Regulation) Bill, 2017 was uploaded on the website of Department of Health and Research seeking comments from the Stakeholders within a period of 30 days but before it could be taken up. The Surrogacy (Regulation) Bill of 2016 which was introduced in the year 2016 came to be passed by the Lok Sabha in the year 2018. Thereafter, The Surrogacy (Regulation) Bill 2019 also came to be introduced and which bill was identical in nature and text when compared with the bill of 2016. Apart from the various lacunae in the said bills with regard to protection of the interests of surrogate mother, surrogate child and the intended parents, the most glaring of them was the omission of LGBTQI+ persons, singles and unmarried couples from the eligibility criteria in order to avail surrogacy especially after the landmark judgments pronounced by the Apex Court of the country upholding the rights of homosexuals and transgender by affirming that they are equally entitled to the fundamental rights granted under the Constitution. In fact, the Supreme Court of India in the Baby Manji case,16 after discussing various forms of surrogacy arrangements, had held, ‘Alternatively, the intended parent may be a single male or a male homosexual couples.’ Further in National Legal Services Authority v. Union of India,17 the Supreme Court laid down that the transgender community should be legally recognized as a third gender apart from the male/female binary and that they are entitled to fundamental rights guaranteed under the Constitution and international law. It further noted that the right to equality under Article 14 and the right to life and personal liberty under Article 19 were interpreted in gender neutral terms since both the provisions state ‘all persons’; thus, transgender persons were entitled to both the rights. The Court further opined that the term ‘sex’ under Articles 15 and 16 does not only pertain to biological attributes but also includes ‘gender’ and hence discrimination on the basis of sex also meant discrimination on the basis of gender. Thus, it was held that transgender persons were entitled to fundamental rights under Articles 14, 15, 16, 19 and 21 under the Constitution. Also, in Navtej Singh Johar v. Union of India,18 the Supreme Court decriminalized Section 377 of the Indian Penal Code on the ground that it violated human dignity, decisional

16

Baby Manji, supra note 14. National Legal Services Authority v. Union of India AIR 2014 SC 1863. 18 Navtej Singh Johar v. Union of India AIR 2018 SC 4321. 17

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autonomy and the fundamental right to privacy and that every individual had the liberty to choose their sexual orientation seek companionship and exercise this right in their private space. Further, it held that the provision violated Article 21 since it led to LGBTQI+ persons getting ostracized and deprived them of their realization of personhood and denying the right to practice one’s sexual orientation, thereby violating their right to privacy. Thus, it was held by the Court that the ambit of privacy should be widened to include ‘sexual privacy.’ Also in K.S. Puttaswamy v. Union of India,19 it held that the right to privacy falls within the purview of right to life and personal liberty under Article 21. Further, this right to privacy includes the right to reproductive autonomy which is available to all persons irrespective of their gender or sexual orientation. It was acknowledged that right to privacy came under the umbrella of natural rights which are not bestowed upon individuals by the State but are inherent in every human being by virtue of being a human being. In the above context, it is also worthwhile noting that studies conducted worldwide have shown that being brought up by same-sex parents or heterosexual parents does not really impact a child. The development and psychological well-being of children is unrelated to parental sexual orientation and that children of lesbian and gay parents are as likely to flourish those of heterosexual parents.20 A child needs love, care, guidance and support, and there is no support in the notion that children are ideally raised by ‘a’ mother and ‘a’ father. Thus, sexual orientation of parents has got nothing to do with the psychological makeup of a child. A child in his formative years is better off with having two fathers or two mothers who love and respect each other than a mother and a father who continuously bicker. The various studies on children born through ART treatment (including surrogacy) and their families have consistently shown that ART conceived children function normally and enjoy the same level of psychosocial and cognitive development as do children who are conceived naturally. It is also pertinent to note that the studies to date are limited to consideration of fairly young children, meaning thereby that harm to children as a result of surrogacy cannot be ruled out, at least until long-term studies are undertaken to reach this conclusion. A contextualized approach to reproductive autonomy instructs that if women wish to act as surrogates and if commissioning parents wish to form their families through the use of surrogacy, then these parties should be permitted to engage in such arrangements. Speculative arguments and concerns including those based in morality or fears for the future of the family must not be permitted to take priority over the autonomy-based interests of those who seek to procreate through surrogacy arrangements. Since becoming a parent and to make a family is the basic right of every human being, it is a prerogative choice of a couple or an individual to become or not to become a parent. Surrogacy being a sensitive industry should be well regulated so that a boon does not become a bane for mankind.

19

K.S. Puttaswamy v. Union of India (2017) 10 SCC 1. Perrin E.C (2002).

20

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It cannot be denied that the Surrogacy (Regulation) Bills of 2016 and 2019 not just erred but also disrespected the mandate of the Supreme Court by excluding homosexuals, singles and live-in couples from the purview of surrogacy. The bills were silent on a surrogacy agreement and the rules regarding it which forms the first line of defense of protection of the interests of parties involved in a surrogacy. Further, by only allowing ‘close relatives’ to become surrogate mothers without defining the term, the bills ignored the ground realities of our society. The bills ignored the interests of the intended parents as it provided the entire right of abortion of the child in the hands of the surrogate mother. For effecting an abortion, only a written consent by the surrogate mother and an authorization from the appropriate authority was the only requirement, thereby giving no say at all to the intending parents. Further, the bills also mandated that the intended couple would be required to prove infertility in order to avail surrogacy while defining infertility to be a condition where a couple is not able to conceive after five years of unprotected coitus. Thus, the two bills of 2016 and 2019 had many loopholes which needed to be plugged in order to create a legislation which was watertight in protecting the interests of all the parties concerned. In this backdrop, while the introduction of the draft Surrogacy (Regulation) Bill, 2020 no doubt is a positive step and an improvement over the previous bills; however, despite of it being introduced after abovementioned celebrated judgments of the Supreme Court, the bill does not accord the right to avail surrogacy services to LGBTQI+ individuals, single men and live-in couples but does allow single women who are either divorced or widows and are not more than 45 years of age to avail the services of a surrogate in order to beget a child. Further, the new bill also done away with the clause in the previous bills requiring intending couples to prove infertility along with being married for five years to avail surrogate services. Also, unlike the previous bills which provided the right of surrogacy to only Indian citizens, the new bill makes NRIs/PIOs/OCIs eligible for surrogacy in India. Most importantly, the bill has also removed the compulsion of a ‘close relative’ being a surrogate and replaced it with ‘any willing woman’ allowed to perform the role of surrogate mother. However, it still lack in many aspects when it comes to protection of various the rights of the parties involved in the surrogacy arrangements (already discussed elaborately in the foregoing chapters which need to be addressed, along with it, further rules and regulations under the bill need to be framed to govern the nitty-gritties of surrogacy procedure in India and create a robust regulatory framework that helps clear the confusion and chaos around surrogacy in the country along with sufficient safeguards to the parties involved. Therefore, it can be seen that the various surrogacy bills which have been introduced in India, admittedly with the primary objective to protect the rights of the surrogate mother and the surrogate child from exploitation and unethical practices, have actually not been able to achieve the same owing to the fact that the most important and relevant provisions which need to be in consonance with India’s obligations to International Conventions are missing. While some of the issues have been addressed in the 2020 Bill, there are still a large number of issues that need to be addressed. Till such time, the objective of protecting surrogate

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mother’s rights as well as surrogate child will remain at best, a piped dream. Therefore, the urgent need of the hour is to bring about a law which is watertight in not just addressing the rights and interests of the surrogate mother and child but also lays down unambiguous rights and corresponding duties of the intended parents. Also, to deal with international surrogacy arrangements, there is a need to put in place, an international agreement or a standard through which the signatory countries can align their surrogacy laws for the benefit of everybody.

6.2

Suggestions

Since the author’s endeavor in the book is to offer an insight into the laws and policies on surrogacy in India and in this process, the author has examined various issues concerning the practice of surrogacy, be it legal, moral or concerning human rights, by showcasing the journey of various legislative measures taken by the Government of India in this regard along with the various notifications/guidelines issued for the purposes of regulating the practice of surrogacy. Undoubtedly, the endeavor has always been to protect the legal and human rights of the stakeholders involved in a surrogacy arrangement; however, in the absence of any specific law dealing with surrogacy, various complicated social and legal issues affecting the rights and interests of children born from such arrangements were witnessed along with exploitation of surrogate mothers. Unfortunately, however, none of the surrogacy bills proposed so far have proved to be a water tight legal framework. Nevertheless, these proposed legislations have, however, paved the way toward realizing the dream of becoming parents for some, at least. In this context, the following suggestions can be considered to cure the various anomalies which have been observed in the Surrogacy (Regulation) Bill, 2020 to protect the interest of all the parties concerned in a surrogacy arrangement, i.e., the surrogate mother, the surrogate child and the intended parents, while bringing amendments in other existing legislations in India to avoid any inconsistency as well as for future regulation of surrogacy arrangements: 1. One of the primary requirements in a surrogacy procedure is that both the surrogate mother and the intended parents agree to the terms and conditions and the nitty-gritties about the arrangement between them. It is for this purpose that a surrogacy agreement is signed highlighting the rights and duties of both the parties. The most visible flaw in the surrogacy (Regulation) Bill 2020 is the lack of rules regarding surrogacy agreements. Therefore, it is imperative that the rules governing these surrogacy agreements be laid down as annexures to the proposed Draft Surrogacy (Regulation) Bill, 2020; otherwise, the objective of the bill, i.e., to prevent exploitation of the surrogate mother and children, shall never be achieved. 2. Based on the discussion on laws and policies regarding surrogacy across the globe in the foregoing Chap. 2 where it was gathered that countries like South

6.2 Suggestions

3.

4.

5.

6.

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Australia, Western Australia and Canada have clear provisions relating to payment of surrogacy costs including medical expenses, fertility treatment expenses, postnatal care, out of pocket expenses, loss of work related income, premium payments for insurance claims, counseling costs, fee for care of dependents and pets, purchase of groceries, maternity clothes, etc., the same could also be incorporated under the expression ‘other such prescribed expenses’ in the current bill (pending nod Indian Parliament). Further, just like the Parliament of South Australia which has recently passed the Surrogacy Act, 2019 where under a surrogacy agreement needs to be in writing and should be containing a lawyer's certificate certifying that both parties have obtained independent legal advice on the agreement along with a counselor's certificate, verifying that both parties have undergone the required counseling, similar provisions could also be incorporated in the pending bill to safeguard the interest of the surrogate mothers in altruistic surrogacy arrangements and protect them from any kind of exploitation. The guidance can also be taken from the Child Parent Security Act 2020 and the Surrogates Bill of Rights in existence in New York for framing the effective mechanism to protect the rights of the surrogate mother and child in India. There can be a judicial pre-authorization of all surrogacy agreements by Special Surrogacy Courts to be formed especially for this purpose to look into any dispute arising from surrogacy agreements in order to reduce the chances of exploitation through unfair, burdensome and unconscionable contractual terms, thereby safeguarding the best interest of the child and the surrogate mother. In setting up these Special Surrogacy Courts, a clue can be taken from legislations such as the Hindu Marriage Act, 1955, the Guardian and Wards Act, 1890 and the Protection of Children from Sexual Offenses Act, 2012. That, the afore suggested Special Surrogacy Courts should also be vested with the authority and power to adjudicate the complaints which may be forwarded to it by the State Advisory Boards set up under the Surrogacy (Regulation), 2020 and for this purpose, such Special Surrogacy Courts should be vested with both civil and criminal powers. Mandatory psychological counseling of the surrogate mother should be resorted to in order to make her consent free, informed and voluntary. She should be given time to consider the pros and cons of the action before proceeding so as to avoid psychological tribulations later on. In fact, there is need to opt for a wider approach toward the process of counseling and to looks at it as an ongoing and continuous process for surrogate and also for the commissioning parent(s). Under the Surrogacy (Regulation) Bill, 2020, though altruistic surrogacy has been recognized, however, there is no clarity with regard to the fact that in case one party approaches the Court for enforceability of such arrangement, then whether damages shall be awarded or the agreement shall be directed to be specifically performed. It is in this regard that it is suggested, the approach of the Court should always be toward the specific performance of the contract unless the situation is such that it becomes humanly impossible to perform the

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same. In the latter situation, it is left open to the Courts to decide the amount of compensation payable by the breaching party which shall depend upon the facts and circumstances of each case. Further, in cases of divorce between the intended parents, stringent financial penalties should be imposed. 7. In the twenty-first century, concepts such as same-sex and live-in relationships along with single parenthood are increasingly finding greater acceptance in societies across the globe and even the Supreme Court of India on multiple occasions has asserted that civil liberties pertaining to dignity, privacy and autonomy of live-in couples, transgender persons and LGBTQI+ persons fall within the ambit of right to privacy under Article 21 of the Constitution. Since these rights apply uniformly to every citizen of the country, the legislature has erred by not including single men, live-in couples and LGBTQI+ persons within the fold of persons who can avail surrogacy. By not including the aforementioned communities, the Indian Government seems to be arbitrarily discriminating against individuals from these communities. It is worthwhile to mention that several countries around the world have provided the facility of using a surrogate to persons other than heterosexual couples in line with the Yogyakarta principles and the ICCPR, and therefore, Indian regulations should also be receptive of such an outlook. Becoming a parent and starting a family is an essential part of a person’s life which aids in his or her growth along with providing a feeling of happiness and contentment which is essential for leading a happy and dignified life. Thus, by not granting singles, live-in couples and LGBT members, the right to avail surrogacy services, the government is depriving them of their right to choose, dignity and reproductive autonomy and consequently, their right to life. Therefore, it is important that the Surrogacy (Regulation) Bill 2020 be amended to provide the right to surrogacy to members from the aforementioned community. It is required to be understood that the right to procreate and raise a family through ART's and surrogacy is vested with everybody regardless of one's sexual orientation or marital status and, therefore, the exercise of such right should not be made restricted to some only. 8. The Surrogacy (Regulation) Bill, 2020 like the previous ART Bills and the Surrogacy (Regulation) Bills of 2016 and 2019 seems to have taken a narrow approach by keeping the doors of surrogacy shut for intended parents of foreign nationality. In this regard, it becomes apposite to state that once we accept that within a comprehensive regulatory administrative framework, surrogacy can be practiced, there is no reason to deny foreigners the relief from the agony of the infertility. The need of the hour is not to have selective barring foreign nationals but to establish a strong mechanism which ensures that the rights of the surrogate mother and child are protected. The decision of the Ministry of Home Affairs to debar foreign nationals from commissioning surrogacy in India was probably due to the complications revolving around grant of citizenship due to variation in approach of different countries toward the practice of surrogacy. However, barring foreigners from commissioning surrogacy in India may lead the entire activity involving foreigners going underground thereby leading to greater exploitation of surrogate mothers.

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9. Since the 2020, Bill is silent on screening of couples regarding their socioeconomic background, criminal records, their health, age and family information check prior to commissioning of surrogacy, this places the child’s interest at considerable risk. This risk came to be highlighted when an Israeli pedophile, after taking custody of a girl surrogate child which he commissioned, left the country. It was only later that the Israeli authorities discovered that he had been criminally charged of child sexual abuse in the past. Therefore, a mandate can be imposed under the statute requiring parties to provide each other with their criminal history report for the previous 12-month period prior to entering into the surrogacy agreement and at least one of the following circumstances to exist, i.e., inability to carry a pregnancy or medical risk associated with pregnancy or inability to give birth, by the reason of gender identity, sexuality or any other reason, which regulation can also be seen under South Australian laws. 10. There needs to be a provision regarding an insurance coverage for the child as a result of unforeseen contingencies. Further, there should also be a provision in the bill guaranteeing a fixed deposit to take care of the child in case of unforeseen circumstances such as untimely death of intended parents, disability or sickness during the surrogacy or abandonment. As recommended by the 228th Law Commission Report, it is imperative that there should be a provision regarding financial support of the surrogate child to preserve his/her interests. 11. As recommended by the 102nd Parliamentary Standing Committee on Surrogacy (Regulation) Bill, 2020, creation of a Human Milk Bank providing breast milk free of cost is necessary as being breastfed is the fundamental right of any new born child. It is necessary since if the child is breastfed by the surrogate, it will cause the newborn child and the surrogate mother to form a bond which will be detrimental for the intended parents. Also, it is pertinent to note that banked human milk is superior in quality than the substitutes present in the market. Hence, a provision in the bill or the rules should be added to mandate the creation of Human Milk Banks. 12. Further, to ensure the right of the child to live a healthy life which is free from man-made abnormalities, the current bill should mandate prospective surrogate as well as the donor to be tested for sexually transmitted diseases as well as communicable diseases which may endanger the health of the child. Further, it should also caste an obligation on the surrogate mother to declare that she will not use drugs intravenouslyand will not indulge in any act that would harm the fetus till the time of handing over the child to the intended person(s), after its birth. At the same time, both the donors should also be required to relinquish all their parental rights in relation to the child so born. 13. Under the current bill, a child born from a surrogacy procedure should be provided with the right to seek information upon reaching the age of 18 years regarding donors/surrogates excluding personal identification of the donor or surrogacy, except in cases where the child suffers from life threatening medical conditions requiring physical testing or samples of the genetic parent(s) or surrogate mother. This way the obligations cast under the UNCRC, i.e., the

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right of the child to know about his/her ancestry and right to family care, right to information, etc. shall be complied with. 14. To protect the welfare of the child taken outside the territorial limits of India by the intended parent(s) who are of Indian origin, just like the previously proposed ART Bills, this bill must also incorporate a provision requiring the commissioning parties from countries other than India to prove via documentation, to the ART clinic that firstly, the country of which they hold the nationality permits surrogacy and that the child born from the surrogacy arrangement shall be permitted to enter into that country as a biological child of the commissioning couple, along with an obligation on the part of the commissioning parents to appoint a local guardian, who would be legally responsible for taking care of the surrogate during and after the pregnancy until the child is delivered to the commissioning parties or the local guardian. This provision shall also be helpful in case the foreign nationals are also permitted in future to commission surrogacy in India. Further, if the commissioning party or their legal representatives fail to claim ownership of the child within one month from the date of birth, the local guardian should be allowed to hand over the child to an adoption agency, and in case of adoption or the legal guardian opting to bring up and rear the child, the child should be granted Indian citizenship. 15. In fact, the adoption laws in India are themselves in need of reform, as most personal laws (with the exception of Hindu law) do not recognize adoption. In fact, in India, adoption is the subject matter of personal laws of different sections of the society viz. Muslims, Christians, Hindus and Parsis. Presently, the Hindu Adoption and Maintenance Act 1956 governs adoption under Hindu law and extends only to Hindus. Then there is the Guardians and Wards Act 1890, which has been framed for Christians, Parsis, Jews and Muslims as their personal laws and which do not completely regulate adoption. In Muslim religion, there is nothing that recognizes adoption but a child can be adopted from an orphanage with the Court’s permission. Under Christian and Parsi law, there is no particular section that regulates adoption and, therefore, the Guardians and Wards Act is relied upon by parents belonging to these religions. Christians can take a child in adoption only under foster care, and when the child becomes major, he can break free from the adoptive home and move on as there is no legal inheritance right. In the case of Parsis, adoption is not considered legal and the act only provides a guardian-ward relationship to the child and adoptive parents, and if Parsis adopt a child, the child shall not be legally considered as a biological child of the couple. The Juvenile Justice Act of 2015 and CARA Adoption Regulations 2017 have been instrumental in paving the way for modernizing adoption laws. The Juvenile Justice (Care and Protection of Children) Act, 2015 along with CARA Adoption Regulations 201721 clearly provide that a Court may allow a child to be given in adoption to an individual,

21

CARA (2017) available at http://cara.nic.in/PDF/Regulation_english.pdf. Accessed 2 Feb 2020.

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irrespective of his or her marital status or nationality. The CARA regulations provide that any NRI/OCI or a foreign citizen can adopt an Indian child if they are from a country which is a signatory to the Hague Adoption Convention. Moreover, the Guardian and Wards Act, 1890 and The Hindu Minority and Guardianship Act, 1956 permit a guardian to be appointed on the satisfaction of the Court that it is for the welfare of a minor. Therefore, debarring single persons and foreign nationals from being parents amounts to rewriting laws already in existence. Therefore, such restrictions should be done away with, being inconsistent with laws already in existence. 16. It is pertinent to mention here that various surrogacy bills which that have been proposed in India so far have presumed the surrogate child to be the legitimate child of the intended parents(s) and who is having all rights akin to a child born biologically. However, the position is different when one analyzes the provisions of the Indian Evidence Act, 1872 which recognizes a child to be legitimate only when he/she is born within 280 days of dissolution of marriage (by death or divorce).22 Hence, considering the fact that science has made necessary advancements whereby a child can be born by artificially inseminating a woman with stored sperms from her deceased husband, the child born from such a procedure must be considered to be a legitimate child notwithstanding the existing presumptive law of Evidence. Therefore, this old and archaic law needs to be suitably amended so that there may not arise any unwanted or a harsh situation in future. This will avoid any contradiction arising within the laws governing surrogacy raising presumption of legitimacy of the child born via surrogacy. 17. Considering the challenges posed by the practice of surrogacy in the arena of children rights in India also, there is a need to strengthen the role of commissions established under the ‘Commissions for Protection of Child Rights Act, 2005’ in protecting violation of rights of the children, the purpose for which commissions have to be proactive rather than reacting to issues related to violation of child rights through state visits, consultations, examining, analyzing policies and programs, and giving recommendations and having active involvement with judiciary and in process of adjudication since they have an important role in advocating policies through legislations. Further to ensure the well-being of the surrogate child taken abroad and with a view to prevent abandoning or trafficking of the child over there, it is suggested that the Jurisdictional Commission should carry out necessary follow-ups and take updates regarding the well-being of the child from the commissioning couples/ individuals at least for a period of three years after the child has been taken abroad. This can be done by the commission on the basis of data handed over to it by the respective ART clinic. This would ensure that the child born through surrogacy is not subjected to any kind of ill treatment or victimization. This can be done by establishing a link with the Indian embassy set up in that country.

22

The Evidence Act 1872, s. 112.

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18. The author also deems it fit to state here that while at present, the current 2020 Bill only permits Altruistic surrogacy; however, in case the law makers in future permit commercial practice of surrogacy, then the State should take care to come up with a regulatory mechanism which one can see being in place in Israel where, vide the Embryo Carrying Agreement (Agreement Authorization and Status of the Newborn Child) 1996, a government appointed committee first approves and then also supervises the surrogacy arrangement and thereby ensures the legality and the validity of the agreement and protects the rights of all the of all the stakeholders involved. A similar kind of regulatory mechanism in India shall be very useful for regulating commercial surrogacy and shall also go a long way in ensuring that surrogates are not exploited and no party to the agreement gets an undue edge over the other. 19. Till the time the steps are taken at the international level to regulate and establish an ethical practice of international commercial surrogacy, nations are required to have the strictest laws regulating surrogacy with respect to their participation in international surrogacy with an obligation that the surrogate child born to their land to foreign couples/individuals shall not be deprived of right to parenthood and the nationality in the country to which the foreign couples belong to. For instance, having a comprehensive immigration and nationality law in India could be a possible mechanism for protecting rights of surrogate children. Such law could be promulgated requiring commissioning parents to obtain advance approval before entering into a surrogacy arrangements and such approval to travel could be subject to the following conditions. 20. On assurance that commissioning parties meet the State’s laws on surrogacy and the presentation of a plan for how parentage will be legally established in accordance with applicable State law; 21. Requiring a home study of the commissioning parties, including criminal background checks and counseling on the risks of the intended ART procedures; 22. Requiring disclosure of relevant surrogacy contracts and the ability to interview surrogate mothers; 23. Requiring the commissioning couple to disclose information regarding third parties (e.g., name of ART practitioner and itemized list of costs); 24. Requiring an assessment of the intending parent’s ability to care for the child appropriately; 25. In addition to the above checks which may be undertaken, after the birth of child, the following measures could also be implemented: • Mandatory DNA testing in all cases to establish genetics relationships (if any); • Affirmative declarations of parentage and support to the child by the commissioning parties in all cases (regardless of the marital status or sex of the parties).

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In fact, instead of varied laws on surrogacy, there is actually an urgent need to have a single and a unified international regulation in place dealing with surrogacy which should be a global mandate applicable to all countries in order to have a controlled and a principled practice of surrogacy. This unified regulation shall provide all possible safeguards along with a set of rules/regulations on the jurisdiction of Courts/ authorities to take decisions on issues such as legal parentage, citizenship and child welfare, exploitation of surrogates, compensation, etc. arising from international surrogacy arrangements. Surrogacy being a sensitive industry should be well regulated so that a boon does not become a bane for mankind. The above humble suggestions, if properly implemented by the concerned law enforcement agencies in their true letter and spirit, would undoubtedly go a long way in safeguarding the well-being of the children born through surrogacy and would also ensure necessary protection of the rights of other stake holders without fail.

References Ministry of Home Affairs. (2012). F. No. 25022/74/2011-F.1. Guidelines regarding foreign national intending to visit India for commissioning surrogacy, available at https://www.mha. gov.in/PDF_Other/surrogacy03112015.pdf. Henaghan Professor Mark. (2012). International surrogacy trends: How family law is coping. Australian. J. Adopt. 7(3), 118–178. Available at https://webarchive.nla.gov.au/awa/ 20150415160831/http://pandora.nla.gov.au/pan/98265/20150416-. Perrin, E. C. (2002). Committee on psychological aspects of child & family health, technical report: Co parent or second-parent adoption by same-sex parents. Pediatrics, 109(2), 341–344. CARA. (2017). Adoption Regulations, 2017, available at http://cara.nic.in/PDF/Regulation_ english.pdf. Accessed 2 Feb 2020.

Reports/Guidelines/Statutes/Conventions/ Treaties and Agreements

National Reports 102nd Report on The Surrogacy (Regulation) Bill, 2016. A preliminary Report on the Issues Arising in Relation to International Surrogacy Arrangements Prel. Doc. No 10 of March 2012 for the attention of the Council of April 2012 on General Affairs and Policy of the Conference. Guidelines regarding foreign national intending to visit India for Commissioning Surrogacy by Ministry of Home Affairs (July, 2012).

International Reports Hague Conference on Private Int’l Law, “Private International Laws Issues Surrounding the Status of Children, including Issues arising from International Surrogacy Arrangements 3. Prel. Doc. No. 11 (March, 2011). Proceed With Care: Final Report of the Royal Commission on New Reproductive Technologies (Ottawa: Minister of Government Services Canada, 1993). Report of the Select Committee on the Surrogacy (Regulation) Bill 2019 (2020). Report of the Select Committee on the Surrogacy (Regulation) Bill 2019 (2020). The desirability and feasibility of further work on the parentage/surrogacy project” Preliminary Document No 3 B of March 2014 for the attention of the council on April 2014 general affairs and policy of the Conference. Para 62, 63, 64. Available at www.hcch.net under the “Parentage/Surrogacy Project”. Accessed June 23, 2015. The parentage/surrogacy Project: An Updating note” Preliminary Document No 3A of February 2015 for the attention of the Council of March 2015 on General Affairs and Policy of the Conference. The parentage/surrogacy Project: An Updating note” Preliminary Document No 3A of February 2015 for the attention of the Council of March 2015 on General Affairs and Policy of the Conference. para 24 available at www.hcch.net under the “Parentage/Surrogacy Project. Accessed June 23, 2020. The Report of the Select Committee on The Surrogacy (Regulation) Bill, 2019. Warnock Report 1984 (UK).

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 H. Kaur, Laws and Policies on Surrogacy, https://doi.org/10.1007/978-981-16-4349-1

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Statutes Indian Statutes Indian Contract Act, 1872. Indian Medical Council (Professional conduct, etiquette and ethics) Regulations, 2002. Indian Penal Code (IPC) 1860. The Assisted Reproductive Technology (Regulation) Bill 2020 (ART Bill). The Civil Procedure Code, 1908. The Commissions for the Protection of Child Rights Act, 2005. The Guardian and Wards Act 1890. The Hindu Marriage Act, 1955. The Hindu Marriage Act, 1955. The Indian Evidence Act, 1872. The Medical Termination of Pregnancy (Amendment) Bill, 1971 (MTP Bill). The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994.

International Statutes Acts of Registration of Civil Status 1997, (Russia). Adoption (Inter-Country) Act, 1997 (New Zealand). Adoption Act, 1955 (New Zealand). Adoption and Children Act 2002 (UK). Assisted Human Reproduction Technology Act, 2004 (Canada). Assisted Reproduction Services 2006 (Singapore). Care of Children Act, 2004 (New Zealand). Care of Children Act, 2004 (New Zealand). Child Parent Security Act 2020 (New York). Criminal Law Amendment Act, 1885 (UK). Embryo Carrying Agreements (Authorization Agreement & Statutes of the Newborn Child) 1996 (Israel). Family Code 1995 (Russia). Family Code of Ukraine. Family Law Act S.A. 2003 (Canada). Family Law Act S.A. 2003 (Canada). Family Law Reform Act, 1987 (UK). Family Relationships Act, 1975 (South Australia). Gestational Surrogacy Act, 2004 (Illinois). Human Assisted Reproductive Technology Act, 2004 (New Zealand). Human Embryology and Fertilization Act, 1990 (UK). Human Fertilization and Embryology (Deceased Fathers) Act 2003 (UK). Human Fertilization and Embryology (Parental Order) Regulations 2010. Infertility Treatment Act 1995 (Tasmania). Law on Citizens Health 2011 (Russia). Migration Act 1958 (Australia). Parentage Act, 2004 (Australian Capital Territory). Protection of Children Born from Assisted Reproductive Technologies Act. (Thailand). Sexual Offences (Amendment) Act, 2000 (UK). Sexual Offences Act, 1967 (UK) was passed. Status of Children Act, 1974 (Victoria). Status of Children Act, 1969 (New Zealand). © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 H. Kaur, Laws and Policies on Surrogacy, https://doi.org/10.1007/978-981-16-4349-1

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International Statutes

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Surrogacy Act 2008 (West Australia). Surrogacy Act 2008 (Western Australia). Surrogacy Act 2010 (Queensland) Surrogacy Act 2012 (Tasmania). Surrogacy Act, 2010 (New South Wales) Surrogacy Arrangement Act, 1985 (UK). Surrogacy Arrangements Act 1985 (UK) The Assisted Reproduction Treatment Act of 2008 (Victoria). The Civil Code of Quebec (Canada). The Law on Citizens’ Health (Russia). The Nationality Law of 1950 (Japan). Surrogacy Bill, 2019 (South Australia). Family Relationships Act, 1975 (South Australia). Uniform Parentage Act of 2000 (Texas and Utah, Illinois, Arkansas). Uniform Status of Children of Assisted Conception Act, 1988 (Virginia). Vital Statistics Act, S.A. 2007 (Alberta). Vital Statistics Act, S.A. 2007 (Canada).

Conventions, Treaties, Agreements Declaration of the Rights of the Child (DRC), 1924. European Convention on Human Rights (ECHR), 1950. Hague Convention on the Civil Aspects of International Child Abduction, 1980. Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption, 1993. International Covenant on Civil and Political Rights (ICCPR), 1966. International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966. The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, 1996. UN Convention on the Rights of the Child, (UNCRC), 1989. UN Declaration on the Rights of the Child (UNDRC), 1959. Universal Declaration of Human Rights (UDHR), 1948.