Commercial surrogacy in India

Commercial surrogacy in India was legalized in India in 2002. The availability of medical infrastructure and potential surrogates, combined with international demand, has fueled the growth of the industry.[1] Surrogate mothers receive medical, nutritional and overall health care through surrogacy agreements.[2][3]

The economic scale of surrogacy in India is unknown, but study backed by the United Nations in July 2012 estimated the business at more than $400 million a year, with over 3,000 fertility clinics across India.[4]

Manji's case

BABY MANJI YAMADA v. UNION OF INDIA & ANR. [2008] INSC 1656 (29 September 2008). Baby Manji was born at Akanksha Infertility Clinic.

The girl, who was born in late July, arrived at Kansai International Airport from India, accompanied by her 70-year old grandmother Emkio Yamada. The Japanese government issued the visa last week after the Indian government granted the baby a travel certificate in September in line with a Supreme Court direction.[5]

Balaz v. India

In Jan Balaz v Union of India, the Gujarat High Court conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district.[6] The court observed: "We are primarily concerned with the rights of two newborn, innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. Emotional and legal relationship of the babies with the surrogate mother and the donor of the ova is also of vital importance." The court considered the surrogacy laws of countries like Ukraine, Japan, and the United States.

Because India does not offer dual citizenship,[7] the children will have to convert to Overseas Citizenship of India if they also hold non-Indian citizenship.[8]

Balaz, the petitioner, submitted before the Supreme Court that he shall be submitting his passports before the Indian Consulate in Berlin. He also agreed that a NGO in Germany shall respond back to India on the status of the children and their welfare. The Union of India responded that India shall make all attempts to have the children sent to Germany. German authorities have also agreed to reconsider the case if approached by the Indian.[9]

In May 2010, the Balaz twins were provided the exit and entry documents that allowed them to leave India for Germany. The parents agreed to adopt them in Germany according to German rules.[10]

Indian Council for Medical Research guidelines

The Indian Council for Medical Research has given Guidelines in the year 2005 regulating Assisted Reproductive Technology procedures. The Law Commission of India submitted the 228th report on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. The following observations had been made by the Law Commission:

  1. Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
  2. A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
  3. A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
  4. One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
  5. Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
  6. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
  7. Right to privacy of donor as well as surrogate mother should be protected.
  8. Sex-selective surrogacy should be prohibited.
  9. Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

Surrogacy risk and conditions in India

According to The Guardian, there was a mother who died because she didn't get the proper medical attention.[11] Conservatives estimates show that more than 25,000 children are now being born through surrogates in India every year in an industry worth $2 billion.[11] Domestic demand is increasing, but as fertility levels drop elsewhere, at least 50% of these are "commissioned" by overseas, mainly western, couples.[11] Most of the industry is operating unchecked. India's medical research watchdog drafted regulations more than two years ago, yet they still await presentation in parliament, leaving the surrogates and baby factories open to abuse.[11] According to Dr. Manish Banker, from the Pulse Women's Hospital, reported to come back on a patient, "She suddenly had a convulsion and fell on the floor," he said. "We immediately took her for treatment. Since she was showing signs of distress, we conducted an emergency cesarean section delivery."[11]

Assisted Reproductive Technology Bill, 2013

The Assisted Reproductive Technology Bill, 2013 has a been pending for quite a while and it has not been presented in the Indian Parliament. It will not allow commercial surrogacy that involves exchange of money for anything other than paying for medical expenses for the mother and the child. [12]

The bill would prohibit these from surrogacy: couples already having one child, foreigners or Overseas Citizens of India (OCI), holders as well as live-in-Partners, single people, homosexuals and widows. There has been significant criticism of the bill.[13]

See also

Further reading

  • Peet, Jessica L. (2016). "A womb that is (not always) one's own: commercial surrogacy in a globalized world". International Feminist Journal of Politics. Taylor and Francis. 18 (2): 171&ndash, 189. doi:10.1080/14616742.2015.1103060.
See also: Peterson, V. Spike (2002). "Rewriting (global) political economy as reproductive, productive, and virtual (Foucauldian) economies". International Feminist Journal of Politics. Taylor and Francis. 4 (1): 1&ndash, 30. doi:10.1080/14616740110116155.

References

  1. ↑ See:
    • "India's baby farm". The Sun-Herald. 6 January 2008. Retrieved 6 January 2008.
    • The Associated Press (31 December 2007). "Indian women carrying babies for well-off buyers, 'Wombs for rent' pleases women and customers, but raises ethical questions". CBC News. Canadian Broadcasting Corporation.
    • The Associated Press (31 December 2007). "Business is booming for India commercial surrogacy program". The Albuquerque Tribune. New Mexico. Archived from the original on 9 February 2008.
    • Staff writer (2 May 2007). "Paid surrogacy driven underground in Canada". CBC News. Canadian Broadcasting Corporation.
  2. ↑ Kannan, Shilpa (18 March 2009). "Regulators eye India's surrogacy sector". India Business Report. BBC World.
  3. ↑ The Associated Press (31 December 2007). "Indian women carrying babies for well-off buyers, 'Wombs for rent' pleases women and customers, but raises ethical questions". CBC News. Canadian Broadcasting Corporation.
  4. ↑ Bhalla, Nita; Thapliyal, Mansi (30 September 2013). "India seeks to regulate its booming surrogacy industry". Medscape. Reuters Health Information.
  5. ↑ Yamada, Manji (3 November 2008). "India-born surrogate baby arrives to unite with Japanese dad". Zee News.
  6. ↑ Express News Service (12 November 2009). "HC confers Indian citizenship on twins fathered through surrogacy". The Indian Express. Ahmedabad.
  7. ↑ Nagarajan, Rema (29 September 2006). "OCI just a recognition of Indian roots: Vayalar". The Times of India.
  8. ↑ See:
    • "Overseas Citizenship of India (OCI)". mha.nic.in. Ministry of Home Affairs, Government of India.
    • "Diaspora Services: Overseas Citizenship of India Scheme". moia.gov.in. The Ministry of Overseas Indian Affairs (MOIA), Government of India. Archived from the original on 4 May 2012.
    • "What is the basic difference between an NRI/PIO/PIO Card Holder and an OCI?". oifc.in. Overseas Indian Facilitation Centre. A not for profit public private initiative of The Ministry of Overseas Indian Affairs (MOIA) and Confederation of Indian Industry (CII), was launched on 28 May 2007.
  9. ↑ "Kerla State allows maternity leave for parents through surrogacy (blog)". blog.indiansurrogacylaw.com. Indian Surrogacy Law Centre. 30 January 2016.
  10. ↑ Ergas, Yasmine (2013). "Babies without borders: human rights, human dignity, and the regulation of international commercial surrogacy". Emory International Law Review. Emory University. 27 (1): 117&ndash, 188. Pdf.
  11. 1 2 3 4 5 Desai, Kishwar (5 June 2012). "India's surrogate mothers are risking their lives. They urgently need protection". The Guardian. Retrieved 16 June 2016.
  12. ↑ [https://www.indiawest.com/news/india/cabinet-approves-amendments-to-surrogacy-bill/article_47ca521e-2d48-11e8-9102-c7e671461a1c.html Cabinet Approves Amendments to Surrogacy Bill, IANS Mar 21, 2018]
  13. ↑ Surrogacy Bill useless without ART Bill: Committee to Rajya Sabha, Prabha Raghavan, ET Bureau, Aug 11, 2017
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