Of late, there are lots of contradictory reports appearing in the media about Surrogacy. To make the records straight and to remove the misgivings about Surrogacy in the minds of general public, I, as the former Chairman of Law Commission of India, pens down this article.
In the 228 th Report titled "Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a Surrogacy" submitted by The Law Commission of India in August, 2009, it was recommended that "the need of the hour is to adopt a pragmatic approach by legalizing altruistic Surrogacy arrangements and prohibit commercial ones." The Law Commission of India further stated that "The draft Bill prepared by the ICMR is full of lacunae, nay, it is incomplete. However, it is a beacon to move forward in the direction of preparing legislation to regulate not only ART Clinics but rights and obligations of all the parties to a Surrogacy including rights of the Surrogate child." Accordingly, the Law Commission, in its concluding note in the said report, had made the following key recommendations:-
- Surrogacy arrangements should continue to be governed by contract amongst parties but should not be for commercial purposes.
- Surrogacy arrangements should provide for financial support for the Surrogate child in the event of death, divorce or unwillingness of the Commissioning couple/individual.
- Surrogacy contract should take care of Life Insurance Cover for the Surrogate mother.
- On the intended parents must be a donor in a Surrogacy arrangement.
- Legislation should recognize a Surrogate child as the legitimate child of the Commissioning parent(s).
- The birth certificate of the Surrogate child should contain the name(s) of the Commissioning parent(s) only.
- Right of privacy of donor as well as Surrogate mother should be protected.
- Sex-selective Surrogacy should be prohibited.
- Cases of abortions should be governed by the Medical Termination of Pregnancy Act, 1971, only.
From the above conclusion, it is stated that the Law Commission adopted a pragmatic approach in coming to the rescue of couples who could not conceive children by natural methods as it is estimated that 15 per cent of couples around the world are infertile. With enormous advances in medicine and medical technologies, it is reported in the Preamble of The ART (Regulation) Bill, 2010, that "Today about 85 per cent of the cases of infertility can be taken care of through medicines, surgery and/or the new medical technologies such as In Vitro Fertilization (IVF) or Intracytoplasmic Sperm Injection (ICSI)." Thus, the report of the Law Commission tried to harmonise reality since Surrogacy arrangements were already going on in large numbers and it was expressed that checks, balances and safeguards be provided through legislation to curb malpractices and exploitation of commercial Surrogacy.
The two seminars conducted by Mr Anil Malhotra in 2009, which were chaired by this author, were in line with the above approach of the Law Commission. It was thought essential to generate and espouse a public opinion and bring about a positive feedback on the ill-effects of commercial Surrogacy arrangements. Mr Malhotra, in his articles, has stressed the need for a serious debate and has posed some very important questions for thoughtful consideration. Hence, it is important that the Surrogacy Bill needs to be discussed threadbare.
The ART (Regulation) Bill could be seen on the ICMR Website and has already been extensively reported and commented upon in the media both in India and abroad. Section 34 in Chapter - VII of the 2010 Bill on the Website of the ICMR clearly states that a foreigner or foreign couple not resident in India, or a non-resident Indian individual or couple, seeking Surrogacy in India shall enter into a Surrogacy agreement which shall be legally enforceable.
I am of the view that there is rationale in appointing a legal guardian who will be legally responsible for taking care of the Surrogate during and after pregnancy till the child is delivered to the Commissioning parent(s) or the local guardian. To prevent misuse and exploitation of the Surrogate as also to monitor her health, well being and to ensure the safety of the Surrogate child to be born, it is very important to have a legal guardian with well defined duties and responsibilities agreed to between the parties in a legally enforceable contract. Once, a Surrogate mother agrees to be in such a position, corresponding duties and responsibilities in such a position will not be an invasion of her right to personal life and privacy. Such an argument is untenable in the facts and circumstances of Surrogate arrangements for altruistic purposes and would be inconsistent to the Surrogate mother's intention of voluntarily agreeing to be a Surrogate.
The 2010 Bill talks of foreign couples coming to India for Surrogacy to submit documents from their home country certifying that they permit Surrogacy and the child born will be granted citizenship in the country of their nationality. This, in my view, would be self defeating as such a provision will only create more hurdles and problems. In my considered opinion, it would be more appropriate if the Indian Laws on adoptions are over-hauled and non-Hindus are permitted to adopt children in India. This way, all Commissioning parent(s) will be able to adopt Surrogate children within India and take them to their home country. Their intentions can be tested on Indian soil by Indian Courts at the time of deciding their adoption petitions and they can then be allowed to take Surrogate children out of India.
I am also in complete agreement with the view expressed by Mr Malhotra that what is really required is a specialist Court or legal authority for adjudication and determination of legal rights of parties by a judicial verdict in India itself. The power of determination of legal issues and disputes arising out of Surrogacy cannot be left to Advisory Boards who neither have the legal acumen or the expertise to decide such specialist problems of Surrogacy.