The proposed new surrogacy law is long overdue and in its present form most welcome. The law regulates the practice to be restricted among relatives as donors and encourages altruistic consideration for donation. It limits the choice to heterosexual Indians who are infertile for not less than 5 years. The flip side is that strangers cannot be donors; an unmarried male or female cannot be the recipient of the benefit of surrogacy; foreigners cannot be commissioning parents and commercialisation of the practice is proscribed. There is a merit in every one of the limiting factors.
Strict regulation of intercountry adoption
If organ donation, however desirable, it is, there are imperatives for their regulation through law and the need to place an authorisation committee to oversee the approvals, there is a greater need to rule out commercialisation of surrogacy. Here the target will always be women, who are already an exploited lot and every need of persons who can have a control over her may force the decision on her. If a strict control shall be the norm, there is no need for relaxing the practice to be an unwed person to opt for a child through a surrogate mother. The Indian adoption law makes possible a single parent to adopt a child and that shall serve the purpose. The law that seeks to keep the foreigners out of bounds has relevance for the same reason as the law that keeps inter-country adoptions as restricted only on the recommendation of CARA, a government of India body that makes its recommendations for adoption. The directives came in Lakshmikant Pandey (1984), when it was brought to the attention of the Supreme Court in a public interest litigation a report from London Mail about how the Indian children adopted to foreign parents were being treated as guinea pigs for administration of new drugs by pharmaceutical companies. The SC guidelines through several decisions include several safeguards of periodical collection of welfare reports from Indian embassy from the adoptive parents living in foreign countries.
SC decisions offer no precedent value
The Supreme Court decisions in Baby Manjhi, where the commissioning parents were Japanese and Jan Blaz, where the commissioning parents were a German couple, laid down no law. On the other hand, they highlighted the absence of regulation in the field of surrogacy and the vulnerabilities of children to statelessness when the children were sought to be taken to countries where surrogacy is not legally permitted. In Minshu (2007), the Japanese Supreme Court refused to register the birth of the twin children brought to Japan by Japanese parents from Nevada, USA after a successful procedure of transplantation of fertilised eggs to a surrogate mother, even when the court at Nevada had passed an order registering the Japanese couple as parents of the children. It was a harsh response to the Japanese woman who could not conceive because a hysterectomy had been done to treat her cervical cancer.
Poor examples of foreign cases
Again, in India, where same sex marriages are not legally possible, there shall be no justification for gay or lesbian couple to seek a surrogate mother’s assistance in India. In countries where samesex marriages are legal, the cases have arisen from unsavoury episodes. In USA, one Thomas Beatie, formerly known as Tracy, a beauty queen from Hawai, opted for sex reconstruction surgery (SRS) and even after electing to become a male retained her ovaries. S/he had a child impregnated through IVF procedure and it turned out that a male delivered of a child. Should the trauma of a child and its oddity lived through here? A dead man (a dead soldier at Gaza strip) was reported to have expressed a desire that the semen that he had stored should be used after his death for fathering a child and it was so done (BBC News, 19th June 2007). Women in a lesbian relationship had each a child through IVF in England and the House of Lords intervention (2006) was sought when the couple separated and the custody of child was lost to the biological mother in favour of the erstwhile lesbian partner, who had herself another child through IVF procedure, on child welfare considerations and the unsuitability of the biological parent. The strange variety of cases that this branch of law has presented in foreign courts need not be spectacle in India also.
No room for dilution in law
Times of India (18 November 2008) reported that an Israeli gay couple, Yonatan and Omer Gher, had a child named Evyatar (meaning ‘more fathers’ in Hebrew) through a surrogate mother at a fertility clinic at Bandra, Mumbai. It was later reported in Israeli news (ynetnews, 16 December 2010) that the Jerusalem Family Court had granted permission to the partner of the biological father of the child to adopt the child. Imagine the situation if the court had declined permission. Judges in court ought not to have the last say on how the fate of the child shall be decided, for it is anybody’s guess as to how the dispensation will turn out to be. The Japanese Supreme Court’s harsh decision exposes the fragility of the decision-making process. Indian courts are also not capable of any surer stance, what with every decision travelling form district court to the highest court at Delhi. The present proposed law cannot be diluted in anyway and if at all, there is a need for stricter enforcement of the norms, for that is the area that Indian laws are notorious in their deficit.
Salient features of the law
Aims at regulating commissioning of surrogacy in the country in a proper manner.
There is a complete ban on commercial surrogacy.
Says decision should not be forced on women and they should not be exploited.
It regulates practice to be restricted among relatives as donors.
Limits choice to heterosexual and legally-wedded Indian couples, provided at least one of them have been proven to have fertility-related issues.
Foreigners, homo-sexual couples and single individuals are barred from commissioning surrogacy.
A woman will be allowed to become a surrogate mother only for altruistic purpose and under no circumstances money shall be paid to her, except for medical expenses.
— The writter is the former Judge, P&H High Court and Presently Chairman, Railway Claims Tribunal, Delhi.