ISSUE AT STAKE
Recent meetings of Departments and Ministries of the Government of India on 6 and 7 March, 2014 to discuss and review divergent views on the draft Assisted Reproductive Technology (Regulation) Bill, 2013 (ART Bill 2013), have resulted in a proposal to revise the draft ART Bill with significant changes. The most crucial proposal is to restrict surrogacy in India to “infertile Indian married couples” only and it would not be allowed to foreigners unless he/she is married to an Indian citizen. Non-resident Indians (NRIs), Persons of Indian Origin (PIOs) and Overseas Citizens of India (OCIs) shall, however, be eligible. The purpose of the object sought to be achieved is to prevent exploitation of Indian women who may be tempted to take the risk in the face of financial hardships.
EXISTING POLICY ON THE SUBJECT
The Indian Council of Medical Research (ICMR) working under the auspices of the Ministry of Health and Family Welfare finalised the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India in 2005 after extensive public debate all over the country from all stake holders. Under these 2005 guidelines, there was no legal bar to the use of Artificial Reproductive Technology (ART) by a single or an unmarried woman and the child born would have legal rights on the woman or man concerned. Thereafter, the draft Assisted Reproductive Technology (Regulation) Bill, 2008 (ART Bill 2008), the draft Assisted Reproductive Technology (Regulation) Bill, 2010 (ART Bill 2010) and the draft ART Bill 2013, stated to be revised based on the recommendations of the Ministry of Law and Justice, have consistently proposed that ART in India would be available to all persons including single persons and foreign couples. The draft Bill 2013, an exhaustive document containing 100 sections addressing various issues relating to ART is stated to be now “Top Secret” being a part of the Cabinet note as per the requirement and procedure of the handbook of the Cabinet Secretariat on Cabinet Notes. The exercise of drafting the 2008, 2010 and 2013 Bills was entrusted to a 12 Member Specialist drafting Committee besides constituting a National Advisory Committee on ART under the Chairmanship of the Director General, ICMR. The draft Bills and Rules of 2008 and 2010 were extensively circulated for public opinion besides being sent to State Governments, institutions, statutory bodies, NGOs and other stake holders besides medical professionals. The 2013 Draft Bill was however not circulated or put in the public domain for discussion, comment or opinion.
REPORTED CASES
The only reported Judgment of the Supreme Court in surrogacy matters in Baby Manji Yamada (2008) took due notice that in cases of “commercial surrogacy,” an intended parent may be a single male when it had the occasion to consider the petition of a Japanese grandmother wanting issuance of a travel document for her Japanese divorced son’s daughter. In another matter decided by the Gujarat High Court in Jan Balaz [2009] the matter in appeal is still pending in the Supreme Court and the decision of the High Court holding, that babies born in India to gestational surrogates are Indian citizens entitled to Indian passports, has been stayed by the Supreme Court. However, twin German children born to the German couple were permitted to leave India upon directions of the Apex Court to Central Adoption Resource Agency (CARA) to permit adoption of the children as a special case for them to leave India. The main issue of nationality and citizenship arising thereto, being of grave importance, is still undecided.
GUIDELINES RESTRICTING SURROGACY
The Ministry of Home Affairs by guidelines of 9 July 2012 restricted surrogacy to foreign nationals i.e. a man and a woman duly married for atleast two years who would be required to take a medical visa for surrogacy in India. As of now, even though surrogacy as a subject is in the administrative concern and domain of the Ministry of Health and Family Welfare, regardless, it has been decided that till the enactment of a law on the ART Bill, 2013, the Guidelines issued by the Ministry of Home Affairs will prevail till then. Hence, foreign single parent surrogacy is as of now barred.
NEW PROPOSAL IN CONFLICT
The deliberations of 6 and 7 March restricting surrogacy to infertile Indian married couples only and debarring all foreigners other than OCIs, PIOs and NRI married couples is a turnaround in the thought process. The suggestion barring foreigners from commissioning surrogacy in India is stated to be subject to their being no conflict with other Indian laws applicable to foreigners, such as those for adoption and other purposes. The most important contradiction and inconsistency seems to be the conflict arising with the Guidelines Governing the Adoption of Children, 2011 for inter-country adoptions which now have statutory sanction by virtue of them being having enacted under the Juvenile Justice (Care and Protection of Children) Act, 2000 which clearly provide that a Court may allow a child to be given in adoption to an individual irrespective of his or her marital status. Moreover, both the Guardian and Wards Act, 1890 and The Hindu Minority and Guardianship Act, 1956 permit a Court that where it is satisfied that it is for the welfare of a minor, a person may be appointed or declared as a Guardian. The bar of single parents to adopt is not statutory but can be a restraint in a particular case upon examination by a competent Court. Therefore, debarring single persons and foreign nationals from being parents will amount to re-writing laws in existence which have been enacted by Parliament.
RECENT DECISIONS
The Supreme Court in Stephanie Joan Becker, (2013) permitted a single 53 year old lady to adopt a female orphan child aged 10 years by relaxing the rigor of the guidelines of CARA on the totality of the facts of the case that the proposed adoption would be beneficial to the child as the experts were of the view that the adoption process would end in successful blending of the child in the US. Likewise, in Shabnam Hashmi (2014), the Apex Court upholding the recognition of the right to adopt and to be adopted as a fundamental right has held that every person, including Muslims, irrespective of the religion they profess is entitled to adopt a child. The latest verdict of the Supreme Court in NATIONAL LEGAL SERVICES AUTHORITY[2014] recognising transgenders as the third gender have held “that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution.” Clearly, transgender persons having been granted a legal recognition as third gender would be entitled to rights of adoption, succession, inheritance and other privileges under law. The new enunciation is a path of rights.
CONCLUSION
The sum and substance therefore, is not to shut the door to surrogacy which is a accepted societal practice in India having grown slowly over the past almost two decades. Medical technology, advancement of science permitting free export of frozen embryos and other scientific methods have offered hopes to childless persons. The more pragmatic and practical approach would be to make a law hedged with safeguards, checks and balances. The appropriate and desirable method would be to create a mechanism to judge the suitability of proposed surrogate parents rather than to debar all single and foreign persons totally. This would also avoid any conflict with existing laws of adoption wherein foreign persons including single parents are allowed to adopt through a strict and rigorous mechanism provided by CARA and overseen by Indian Courts. Simply trying to shut out surrogacy for foreign nationals and single persons may not be the ideal way to stamp out the hopes of persons wishing to be a parent. Whether Indians or foreign nationals, law treats persons as individual parents when so required. A restrictive meaning to the word “person” cannot qualify or change the definition by restricting it to an Indian national. The celebrated view of the Apex court in widening the horizons to prevent discrimination on grounds of sex or gender identity is a new thought process based on international covenants of human rights. We cannot now permit our thinking to be retrograde simply because of the problems which come with surrogacy. Administrators cannot usurp law making functions to be a law unto themselves. This is the function of the Parliament. Mandarins cannot take over. The more apt approach would be to finds solutions to handle and curb these problems. The mechanisms in law which can be created in India as is the case in the case of inter country adoptions is the best cited example. The approach is to restrict the entry and not shut the door altogether .Let us be wiser.
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