By Shubhangi Roy
So the Vatican does not approve of surrogacy. The famous comedian Elayne Boosler says its a good thing they werent around when Jesus was born. We say its a good thing Jesus was not born in present day India else Mary would have lost him in the legal custody battle.
Surrogacy has been an alternative reproductive option for quite some time now for couples facing infertility; and transnational surrogacy is the new kid in town with India leading the way. Presently, commercial surrogacy in India is a 2.4 Billion US Dollar business; an industry important and unique enough to be featured in The Oprah Winfrey Show as far back as 2007. Yet, surprisingly, there exist some flimsy Indian Council for Medical Research guidelines that govern the surrogacy contracts in India along with a few Supreme Court judgements.
The closest the industry has come to be governed by proper laws is the recent attempt to table the Surrogacy Bill, 2010 in the Parliament. However, this was postponed and instead a standing committee was formed to look into the bill properly before the same is presented to the Parliament.
As was highlighted by the Baby Manji case and the Jan Balaz case, the Indian laws on the subject are incomplete and leave many serious questions of law undecided. In the case of Baby Manji, the matter involved conflict of family laws of India with that of Japan since the contracting couple had separated during the pregnancy and each was contesting custodial right over the child in the Indian Supreme Court. Due to lack of clarity, the matter remained pending in the court for over two years during which the child had to stay in India.
A more serious diplomatic problem arose in the Jan Balaz case, where the contracting couple belonged to Germany which is one of the countries which does not recognise surrogacy as a legitimate means of having a child. These two children were born stateless and yet were the centre of a diplomatic turmoil between two states.
Realising the need of a clearer stand on surrogacy, the Law Commission of India attempted to provide a framework for potential surrogacy laws 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. This report was released in the year 2009.
Its 2013 and the Bill on Surrogacy remains pending. The closest it came to materialising into proper law was the news early this month of the draft Assisted Reproductive Technologies (ART) Bill being presented to the cabinet before it was finally tabled for discussion in the Parliament.
It managed to generate some excited flurry and some disappointed frowns. Though there was much ado over how homosexual couples were barred from opting for surrogacy under the bill, the definition of couple in Section 2(h) defines Couple as two persons living together and having a sexual relationship that is legal in India. Moreover, the couple can be married or unmarried. The right of a homosexual couple will vary according to the changing law on the matter especially in light of the pending Supreme Court verdict on the Naz Foundation case. The Supreme Court did mention how surrogacy was a preferred course of action for homosexual couples and single men/women seeking parenthood in the Baby Manji case (though it was merely an obiter dicta and has no legal force). The Bill, however, makes no clear reference to them. This is a restriction only for couples with Indian origin or nationality. As is mentioned in Section 2(h) of the bill, any couple can opt for surrogacy if their marriage is considered legal in their respective country of citizenship.
An Indian homosexual couple could possibly opt for surrogacy closeted as an individual opting for surrogacy in which case only that individual person will have custody of the kid unlike the shared custody an unmarried heterosexual couple would enjoy.
As for protecting the surrogate, there are a few provisions. The only surrogate not mother principle has been repeated in various sections to ensure that there is no genetic relation between the surrogate and the child. Also, the age limit of the surrogate is to be within the prescribed range of 21 years to 35 years. She can bear a total of only five children including her own.
The wording of the Bill clearly indicates that the intention is to regulate an already existing industry. The compensation of the surrogate can be decided by the commissioning parents and the surrogate which means that commercial surrogacy is permitted under the Bill. However, not providing any range for the compensation also implies that the amount paid to the surrogate will depend on which side has better negotiating power. This completely defeats the objective of the Act to protect the interest of the surrogates. Also, there are provisions restricting surrogate from having any say in foetal reduction except for under medical advice. This seems rather unfair keeping in mind it is her womb that carries those multiple foetuses to birth.
Similar flaws exist in defining rights of the child so born. But this is one issue that cannot be handled merely by a domestic legislation. The need of the hour is an international regulation in the form of a United Nation Convention providing a framework within which the laws of the signatory countries should be formulated. Indeed, the Special Commission on the Practical Operation of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Inter-Country Adoption noted the increasing incidence of international surrogacy arrangements and recommended that the Hague Conference should carry out further study of the legal, especially private international law, issues surrounding international surrogacy. A negotiation initiated at this time would perhaps be the most effective instrument as domestic surrogacy laws in most countries are mere seedlings that would eagerly absorb the international regulatory norms established. Even a mere negotiation, if promptly initiated, would provide the nations with the basic expectations and concerns that it needs to incorporate in their domestic laws.
Thus, regulation is essential at both domestic and international level to remind us that today is not a day where a woman can be exploited for her womanhood and ensure that tomorrow shall not be a day where children will be a luxury commodity only for the rich but a miracle of life to be nurtured as one.
The author is a third year student pursuing B.A. LLB. (Hons) at Gujarat National Law University. She is presently on the editorial board of two books and a few of her research papers are in the process of being published. She can be reached at shubhi.law@gmail.com