India | India's surrogacy bill fails to guard the child's interests

India’s surrogacy bill fails to guard the child’s interests

Sonali Kusum December 26, 2016 8:41 PM (UTC+8)
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The Indian parliament ushered the Surrogacy (Regulation) Bill 2016 by the Health Ministry proposing to legalize altruistic, domestic surrogacy. The bill followed a decade-long practice of commercial overseas surrogacy in India, and aimed to control exploitation of surrogate child and mother for unethical purposes.

Yet the bill in more ways than one largely suffers from safeguarding the child interest.

No breast feeding for surrogate child: The Surrogacy Bill is silent on the most fundamental safeguard, being breastfeeding for the surrogate child. It is only rightful to mention India’s premiere fertility clinic, Akanksha IVF Centre at Annand in Gujarat delivering more than a thousand surrogate children for national international couples, this clinic set up a human milk bank to provide breast milk free of cost for better healthy growth of surrogate child. It must be noted that the banked human milk is much superior, beneficial health alternative over other breast milk substitutes or supplements in strengthening immunity, checking infant mortality. The Japanese surrogate child Baby Manaji born premature, in failing health, was breastfed by an anonymous surrogate mother at this clinic in Gujarat for improving health of child.

The supreme court of India in People’s Union for Civil Liberties v. Union of India), 2008 yr., Laxmi Mandal vs Deen Dayal Harinagar Hospital 2009 yr and the World Health Organization recommend breastfeeding within one-hour of delivery and its continuance until 3-6 months for better health of the child. Despite these apex court strictures the Bill has no mention on the same.

No right of Surrogate child to know parentage, legal identity: This Surrogacy Bill does not address the right of the surrogate child to information on genetic parentage or the surrogate. Whereas the earlier ART Bill stated expressly right of surrogate child to information about donors or surrogates upon reaching the age of eighteen years this is crucial in case of life threatening medical conditions involving physical testing or samples of the genetic parent or parents or surrogate mother. This is much in consonance with the right of the child to know and to be cared for by his/her parents under UNCRC 1989 (Article 7). While such disclosure is fraught with grave psychological impact on the child therefore there is also need for appropriate psycho social counselling to be incorporate in the Bill for building understanding, mental preparedness of the surrogate child

No screening of couples before commissioning surrogacy: This surrogacy bill is silent on screening of couples including their social economic background, criminal records in past, their health, age, and family information check before they are permitted to commission surrogacy. In the absence of such screening, the surrogate child’s interests suffers considerable risk as demonstrated when an Israeli pedophile after having a girl surrogate child in India, left the country subsequently the Israeli authorities discovered that he was criminally charged for sexual abuse of children. (GlobalPost Alaska Dispatch news, June 11, 2013) Taking after the existing adoption law which maintains a home study report after assessment of couple by qualified social worker. A similar provision may be introduced in this surrogacy Bill.

No social security Insurance for surrogate child: This surrogacy bill provides insurance for the surrogate mother but excludes the surrogate child. The predecessor draft bill regulating surrogacy, namely the Assisted Reproductive Technologies (ART) Bill (put to rest with the new separate Surrogacy Bill), directed couples at the time of signing the agreement to secure Insurance for surrogate the child or children through appropriate Insurance Policy like Jeevan Balya for maintenance of up till the age of twenty-one years. The ART Bill also provided insurance for egg donors and surrogate mothers. The Government of India Law Commission report no. 228 recommended for “financial support” or insurance for surrogate child.

It is pertinent to note that by failing to provide for insurance, the surrogacy bill overlooks such situations where commissioning or intending parents may incur death, disability, sickness during the process of surrogacy, leaving the child parentless at birth. Therefore the bill lacks crucial child concerns and loses out on adequate justice to the surrogate child.

Definition of Abandoned surrogate child Incomprehensive & Partial: The Bill prohibits and penalizes abandonment rejection of the surrogate by couple post-birth. The bill defines “abandoned child” by enumerating grounds of abandonment as “physical mental defect or infirmity, or being more than one in number” excluding “sex of the child” among the same. Taking advantage of this gap, an Australian couple who had twin surrogate children in India left the male surrogate child while the girl surrogate child was taken with them to Australia, reasoning that they already had a male child and they only needed a girl child to complete their family. (ABC news, 13 Apr 2015)

In connection with this abandonment/rejection of the surrogate child, the Bill does not address the plight of such surrogate child found non-genetically connected with either of the parents post birth following switching or swapping of donated frozen gametes of couples in clinics or labs, sperm banks, would such surrogate child be abandoned or rejected or left in adoption home or orphanage!

It may be rightful to mention that the “abandonment of child under twelve years by parent or person having care of it” is punishable offense in India under (Section 317) of the Indian Penal Code 1860, though the Surrogacy Bill does not reiterate or refer to the same.

Furthermore, the Government of India has a constitutional mandate, international treaty obligation following ratification of UN Convention on the Rights of the Child, 1989 to protect, prevent such case of abandonment of surrogate child under Indian constitution, Directive Principles of State Policy (Art. 39(f), 45) providing for “early childhood care” and “protection of child against material and moral abandonment”. In light of this the Surrogacy Bill needs stringent measures to control abandonment, rejection of surrogate child.

No Guardian & Immediate custodian for Surrogate child – The Bill neither envisages nor addresses such condition where the couple may not be present for reasons related to death disability or such other valid reasons to receive the immediate custody of child at birth, the Bill provides for no such immediate custodian or guardian for such surrogate child, however the earlier ART Bill provided for appointment of “local guardian” to receive immediate custody of child responsible for taking care, well-being of surrogate child or children until they are delivered to the commissioning couple. This also checks abandonment of surrogate child. In Baby Manji Yamanda vs Union of India (2008) the grandmother of the Japanese surrogate child was appointed as the guardian vested with custody as the Japanese intending father could not be present in India owing to expiry of his visa. This prevented the child from landing in orphanage!

No Punishment against Sex Selective or Family Balancing Surrogacy & Trafficking of Surrogate child: In the list of offenses and punishments, the Bill misses out on sex selective surrogacy or family balancing surrogacy to have child of a pre-determined sex, where as the ART Bill prohibited penalized the same by adding relevant provisions of Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 in ART , Surrogacy.

Amidst the offences and punishments, the Bill does not talk about “trafficking or sale, abduction of surrogate child” in guise of either altruistic or commercial surrogacy arrangement in any form under the same. Though the bill refers to the term “exploitation of surrogate child,” it does not define the same.

Plight of Child born of overseas commercial surrogacy unresolved: The Bill prohibits commercial surrogacy and prescribes imprisonment up to ten years and fine up to ten lakhs for violating the provisions of the Bill. This implies if an Indian surrogate child born of biologically or genetically related to either or both of the Indian intending couples under commercial surrogacy agreement in foreign nation, it is unclear if such a child be granted entry permit in India or placed in orphanage or adoption agency, or if the couple would be imprisoned for breach of this Bill.

This is significant in the after math of the recent Baby Lily case a surrogate child born in India to UK couples facing the risk of being placed in orphanage( Telegraph, UK 13 Se, 2016). Such a fate could be repeated for Indian surrogate children as well! The proposed law must resolve the deadlock.

Nil Surrogacy agreement Nil certainty, predictability on custody care of surrogate child: The bill makes no mention of surrogacy agreement, there is no writing down or recording of the reciprocal promises made by surrogate towards the couple vice versa, hence if a surrogate refuses to hand over the child to the couple post-birth, the entire surrogacy arrangement is rendered uncertain, without any legal recourse. This entails the worst fears of disruption of right to parentage, family for surrogate child, and may result in custody disputes pending over years surrounding the surrogate child.

This is testified in Re AB (Surrogacy: Consent)(2016) UK wherein the mutual consensual altruistic surrogacy agreement broke down following differences between the surrogate and couples, the surrogate refused to sign the parental order for vesting parentage in couples. The UK family court was compelled to adjourn the case leaving the child in limbo causing alienation of child from biological parents. This is abject denial of welfare of surrogate child. This serves as important case in point which could be a reality in India under the proposed Bill!

At the outset, for various reasons as discussed and for many more unidentified, unresolved issues, the bill appears to be devoid of surrogate child interest. The bill is awaiting enactment, but it would only be meaningful if it were reconsidered with better protections and promotion of the surrogate child’s interests.

Sonali Kusum
Sonali Kusum is presently pursuing her Ph.D from National Law School Bangalore. She writes a regular monthly column in a law magazine and guest editorials in regional news paper Karnataka. formerly She has been Assistant Professor in TISS Mumbai.
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