New born challenges

The surrogacy law must balance old views with the latest technology

The Indo-Japan surrogacy case puts into sharp focus the inadequacy of the present guidelines on surrogacy in India. The case of Manji, the surrogate child of Japanese parentage born in Anand to an Indian mother, ran into trouble when the biological mother refused to adopt the baby girl. Commercial surrogacy prevalent in India spells out that the child born of a surrogacy agreement should be adopted by its biological parents. However, Manji’s Japanese father cannot adopt her as the Indian adoption laws do not permit a single father to adopt a minor female child.

India is one of the few countries where commercial surrogacy or paid surrogacy is legal.
A new bill, Assisted Reproductive Technology (Regulation) Bill & Rules, 2008 is yet to become law. The bill is similar to the guidelines issued by Indian Council of Medical Research (ICMR) in 2005 and prescribes ethical standards to be followed in cases of assisted reproductive technologies by Assisted Reproductive Technology (ART) clinics and parties involved. The bill gives recommendations to be included in the surrogacy contract, like clauses on monetary compensation the surrogate is entitled to, medical tests, sample declaration to be given by the surrogate as regards to her medical and sexual history and a clause embodying the declaration by the surrogate relinquishing her parental rights.

Surrogacy is of two kinds, gestational surrogacy and partial surrogacy. Gestational surrogacy involves the ‘surrogate’ woman carrying the biological child of the infertile couple. Partial surrogacy, on the other hand, involves the egg of the ‘surrogate’ mother fertilised by the sperm of the father or the donor. The new bill does not permit partial surrogacy to avoid legal complications and emotional disturbance to the surrogate.

The present bill permits the relation between the couple, the child and the surrogate and the rights concerning the child to be settled by a written contract or declaration. These contractual agreements determine the nature of relation based on genetic ties instead of traditional social ones. Law in accommodating the unexpected ways in which human beings become related to each other with the aid of biotechnology is permitting the market to determine the nature of our relations. The recent approval by the Supreme
Court of commercial surrogacy as a growing legal industry is evidence of how the market has made inroads into our private lives. The facilitating of legally blessed market ‘operations’ challenges the established assumptions of separation between our private and public lives. It is this commercialisation of our private lives and the ethicality of making profit out of a ‘natural god given process’ that made countries like United Kingdom and Canada ban commercial surrogacy though altruistic surrogacy remains legal.

While the bill on surrogacy is to be tabled in Parliament in the next session, infertile couples from abroad where surrogacy either is illegal or unaffordable have been coming in to take advantage of the inadequacy of the present guidelines on surrogacy. The inadequacy of the Indian guidelines to meet the demands of biotechnology came to light with the Manji case. The new law has to determine the relationship of the child vis-a-vis the biological mother and the gestational carrier and acknowledge the biological function of the gestational carrier as the mother during the period of pregnancy without depriving the right to and responsibility of the biological mother and father.

The biggest challenge would be the redefining of the parameters of ‘family’ between the biological parents and the surrogate and rewiring the assumption based on our ‘natural’ biological past that the woman giving birth to the child is the biological and legal mother of the child. It is the legal ambiguity surrounding who would be the natural parents of the child that has made countries like France make surrogacy illegal. While biotechnology gives us the freedom to choose who and how we want to be related to each other, it also tests our well-worn concepts of family relationships.

The lack of a clear law will induct an ‘outsider’, the surrogate mother, into the disputes.
The present bill attempts to address the issue of a child born out of the surrogacy agreement whose parents separate or divorce

after his/her conception by granting him the status of child born in wedlock. But it has yet to respond to the query of who would be the ‘parent’ with larger claims to the child in the event of a dispute between the surrogate and the couple. What would be the nationality of the child born in India to non-Indian parents in India? The legitimising of reproductive processes, like surrogacy, means legitimising its outcome too. Therefore, the law not only has to adapt to the new technology, but has to meet the challenge of marrying the old with the new without unsettling what we hold dear.
The writer is a Mumbai-based lawyer.