[Guest Post] Surrogacy and Foreigners in India

This post has been contributed by Mr. Anil Malhotra. He is a practising lawyer and is the principal author of “Surrogacy in India: A Law in the Making” (2014) & “Surrogacy in India: A Law in the Making-Revisited” (2015). He can be reached at anilmalhotra1960@gmail.com.

As per prevalent Government of India policy decision dated November 4, 2015, surrogacy services in India for foreign nationals has been banned, and neither any Indian Visas, nor permission is to be granted by Indian Embassies abroad or by the Foreigners Registration Officers to overseas citizens, or to overseas citizens of India, for obtaining medical visas to enter India or exit permission to leave India. Indian Council of Medical Research declared that surrogacy will be limited to Indian married couples only and not to the foreigners.

However, what happens if the foreign citizens or overseas citizens of India are already domiciled and living in India, and having availed facilities for the birth of children in India through surrogacy, have decided to live in India and do not need exit permission?

What would be the fate of such children born to foreign nationals in India, who would otherwise qualify for the same foreign nationality which their overseas parents hold?

Likewise, what happens to single parents with surrogate children?

No existing codified law on surrogacy is on the statute book to decide these problems and pronounce on the validity of the birth of such surrogate children.

Recent News

Bollywood film star Sunny Leone and her husband Daniel Weber, both foreign nationals stated to be living in India, publically announced recently in March 2018 that the births of their biological sons, Noah Singh Weber and Asher Singh Weber born through surrogacy. In a statement, it was said “we chose to do surrogacy with a fertilized egg from Daniel’s genes and my genes. Asher and Noah are our biological children and God sent us an angel surrogate to carry our boys until they were born”.

Film star Tushar Kapoor, as a single parent is a proud father of a baby boy and Karan Johar a film celebrity, is the doting father of twin children as a sole parent.

The Indian legislation which is in limbo:

Bill No. 257 of 2016 i.e. “Surrogacy (Regulation) Bill, 2016” was tabled in the Lok Sabha in November 2016. It had proposed a complete ban on commercial surrogacy, restricting ethical altruistic surrogacy to legally wedded infertile Indian married couples only, married for at least five years. A certificate of proven infertility of either spouse or couple from a Medical Board was mandatory.

According to the Bill, overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples are barred from commissioning surrogacy. Only close married blood relatives, who must have herself borne a child, and was not an NRI or a foreigner, can be a surrogate mother once in a lifetime. Other features of the Bill are:

  • Indian couples with biological or adopted children are prohibited to undertake surrogacy.
  • Only medical expenses will be allowed to be paid to the surrogate mother.
  • Commercial surrogacy, among other offenses, will entail imprisonment jail term of at least ten years and a fine extending to rupees ten lakhs.
  • Compensated gamete donation has been banned.
  • Surrogacy clinics will require mandatory registration.
  • National and State Surrogacy Boards shall advise, review, monitor and oversee implementation of the new law.

Report of Parliamentary Committee

In January 2017, the Rajya Sabha Chairman referred this legislation, as introduced in the Lok Sabha, to the Standing Committee on Health and Family Welfare. This Parliamentary Committee by Report 102 presented on August 10, 2017, has recommended beneficial major sweeping changes. Major stakeholders, experts, Government representatives of various Ministries and professionals lent their views with extensive interactions with the Committee. The changes recommended are laudable, practical, beneficial and harmonious to rights of parties.

Proposed Recommendations:

The major recommendations of the 88-page report can be identified in nine features.

Firstly, “compensated” instead of “altruistic” surrogacy is proposed with the amount of adequate and reasonable compensation to be fixed by authorities, besides “mandatory appointment of a competent authority” to obtain the full informed consent of surrogate mothers”.

Secondly, the Committee recommends that surrogacy can be availed off by live-in couples, divorced women, widows, NRIs, PIOs and OCI Card holders to avoid prejudice and discrimination but, foreign nationals cannot commission surrogacy in India.

Thirdly, recognising “the fundamental right to reproduce to have a child as a person’s personal domain”, five year waiting period thought to be “arbitrary, discriminatory and without any definable logic,” has been recommended to be one year with the right to go for second chance at surrogacy in case of any abnormality in the previous child.

Fourthly, holding the limiting of the practice of surrogacy to close relatives as “non-pragmatic and unworkable”, the Committee has recommended that “both related and unrelated women should be permitted to become a surrogate.” Fourthly, the Committee further recommends that “screening of intending couple for medical assessment, social economic background, criminal records and related checks before commissioning surrogacy.

Fifthly, the requirement of “a certificate for infertility from an appropriate authority” has been recommended to be substituted by medical reports.

Sixthly, the Committee recommends practical changes in the constitution of the National and State Boards of Assisted Reproductive Technology for resolution of legal implications and maintenance of appropriate records.

Seventhly, the Committee suggests that “sex-selective techniques” in surrogacy should be harmonised with existing laws and since “surrogacy and related procedures are not criminal activities, the punishment should be commensurate with the level or degree of the infraction committed”.

Eighthly, amongst miscellaneous recommendations, the Committee recommends written registered surrogacy agreements, adequate insurance coverage for unborn child, provision of a birth certificate with names of commissioning parents, establishment of an independent agency with quasi-judicial powers for resolution of disputes of parties involved in surrogacy, and mandatory DNA testing for genetic determination to determine parenthood.

Lastly, the Committee observed that the Assisted Reproductive Technologies (ART) Bill, 2008, has been revised in 2010 and 2014 is lying with the Government and should be brought forth before the Surrogacy Regulation Bill, 2016.

Allied Developments

Whilst, the 2016 Bill is still pending, The Assisted Reproductive Technology (Regulation) Bill, 2017, put on public domain for suggestions seeks to establish a National Board, State Boards and the National Registry for regulation and supervision of assisted reproductive technology clinics as also for prevention of misuse and for safe and ethical practice of assisted reproductive technology services.

Analysing the situation

Without a law on surrogacy in place, a machinery for its monitoring is sought to be created even without identifying the parameters of permissible surrogacy in India and its availability to citizens, persons or others. A dilemma prevails. More so, the fate and status of such surrogate children hang in limbo.
Restricting limited conditional surrogacy to married Indian couples and disqualifying other persons on the basis of nationality, marital status, sexual orientation or age, does not appear to qualify the test of equality.

Right to life enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood and it is for the person and not the State to decide modes of parenthood. It is the prerogative of person(s) to have children born naturally or by surrogacy in which the State, constitutionally, cannot interfere. Moreover, infertility cannot be compulsory to undertake surrogacy. A certificate of “proven infertility” is a gross invasion of the right of privacy which is part of the right to life under the Constitution. All these legal maladies find redressal in the erudite Committee report.

The Indian Council for Medical Research (ICMR), working under the Ministry of Health and Family Welfare, finalized the National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India, 2005. It stipulated that there shall be no bar to the use of ART by single women who would have all the legal rights and to whom no ART clinic may refuse to offer its services for ART. By anomaly, single men too could claim this right. These guidelines have not been rescinded till date.

Anomalous and inconsistent as it may seem, in the matter of Inter-Country adoptions, the Government has a diametrically opposite policy. It statutorily propagates fast-track inter-country adoptions from India for foreigners. The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) allows a Court to give a child in adoption to foreign parents irrespective of the marital status of such a person. The latest guidelines governing Adoption of Children notified on 4th January and effective from 16th January, 2017 have streamlined Inter-Country Adoption procedures, permitting single parent adoptions with the exception of barring single male persons from adopting a girl child.

Surrogacy in vogue for over past twelve years has been shut down overnight. Tripartite constitutional fundamental rights of stakeholders stand violated in the process. A right to reproductive autonomy and parenthood, as a part of a right to life of a single or foreign person, cannot be circumvented.

The possible Government logic banning foreign surrogacy to prevent its misuse seems counterproductive. Barometers of domestic altruistic surrogacy will be an opportunity for corruption and exploitation, sweeping surrogacy into unethical hands in an underground abusive trade. Relatives will be generated. Surrogates will be impregnated in India and shifted to permissible jurisdictions with lax laws. The ends will defeat the means. Surrogacy may still flourish with abandon. Sweeping it under the carpet will not help. Ignoring its prevalence cannot extinguish it at a stroke.The Parliamentary Committee recommendations taking due note have done very well. The suggestions must find favor. A beneficial surrogacy law is the need of the hour.

Image from here

L&P Editorial Team

The Law & Practice Blog's editorial team.

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