Aditi Shastri writes on the issues surrounding surrogacy in India.
Surrogacy is the process by which a woman agrees, usually by a written contract to gestate a child on behalf of his intended parent /parents and to relinquish the child and all the rights and responsibilities as a mother upon the birth of the child. Surrogacy as an Assisted Reproductive Technique (ART) is a medical boon to parents suffering from natural efficiency to reproduce. It is a scientific extension of the natural ability to reproduce. Eight countries which include Israel, Switzerland, Germany, Spain, France, Greece, Norway and Britain specifically ban commercial surrogacy. Developed countries like Germany and Sweden have some restrictive legal codes on fertility practices.
There are no laws regulating surrogacy in India, even though the ministry of health and family welfare has established a set of guidelines for this practice. In India, according to the national guidelines for accreditation, supervision and regulation of ART clinics evolved in 2005 by the Indian Council of Medical Research (ICMR) and the National academy of medical sciences (NAMS), the surrogate mother is not considered to be the legal mother. The birth certificate is made in the name of the genetic parents.
There has been a recent proposal to legalize and regulate surrogacy in India. The Indian council of medical research has come out with a draft assisted reproductive technology (regulation) bill and rules 2008. The bill acknowledges surrogacy agreements and their legal enforceability. The bill provides that a single person may also go for surrogacy arrangements it also provides that a foreigner or foreign couple not resident in India individual or couple , seeking surrogacy in India shall appoint a local guardian . If the commissioning couple separates or gets divorced after going for surrogacy but before the child is born, then also the child shall be considered to be the legitimate child of the couple. The bill further provides that a couple or an individual shall not have the service of more than one surrogate at any given time. A couple shall also not have simultaneous transfer of embryos in the woman and in the surrogate.
In the case of Baby Manji v. Union of India concerned custody of a child Manji Yamada given birth by a surrogate mother in Gujrat under surrogacy agreement with Dr Yuki Yamada and Dr Ikufumi Yamada of Japan . The sperm had come from Dr Ikufumi Yamada but egg from a donor, not from Yuki Yamada. There was a matrimonial discord between the commissioning parents. The genetic father Dr. Ikufumi Yamada desired to take custody of the child but he had to return to Japan due to expiration of his visa. The municipality issued a birth certificate indicating the names of the genetic father. The child was moved to Jaipur following a law and order situation in Gujarat. The baby was provided with the much needed care including breastfeeding by a woman. The grandmother of the baby Manji Ms.Emiko Yamada flew from Japan to take care of the child and filed a petition in the sc under article 32 of the constitution. Ultimately baby Manjhi left for Japan in the care of her genetic father and grandmother. Surrogacy in India is relatively low cost and the legal environment is favorable. Supreme Court in the Manjhi case it was held that commercial surrogacy is permitted in India. That has again increased the international confidence in going in for surrogacy in India.
One of the reasons as to why surrogacy isn’t a much approved idea from the legal point of view in many countries is because surrogacy is technique that works on a sharp moral edge. It blends the sanctified procedure of having children in a rented womb with money. It is difficult to overlook the emotional attachment with a child that the surrogate mother carries to the term and then give away only to never hear about the child ever again. Many people believe that these two domains should not mix.
For couples who dream of having their own child surrogacy seems more viable option because this arrangements allows the couple to have a genetic connection with a child which is absent in case of adoption and is a strong point. Technological advances in reproduction provide infertile couples with new alternatives in their attempt to bear children. With adoption becoming legally more difficult the greater awareness of surrogacy as an option for couples has proven to be more beneficial. Surrogate motherhood is an alternative option because it provides a biological link between the husband and the child.
State policies must protect against potential problems and must also protect the child’s welfare in the event of a dispute between the contracting parties. Courts should not give custody to couples based on subjective criteria determining child’s best interests. Instead a familial stability standard would serve as a better standard in such disputes. Surrogacy has become an attractive alternative for young couples because of difficulties in adopting children and high infertility rates. With the increase use of this reproductive alternative, the necessity for proper legislative and judicial guidance is imperative.