Surrogacy bill looks to protect child's interest
Manoj Mitta, TNN, May 23, 2010, 05.22am IST
NEW DELHI: Having emerged as the hottest destination for surrogacy, it is but natural for India to take the lead in evolving a law that safeguards the interests of all the parties concerned, including the child born through assisted reproductive technology (ART).
There is no precedent to the proposal under consideration that foreigners or NRIs seeking to rent a womb in India be made to give evidence that their country of residence recognized surrogacy and would give citizenship to a child born through agreement.
Both conditions are reasonable as they are designed to deal with the legal uncertainties thrown up by a couple of surrogacy cases that did not pan out in the agreed manner. In the Manji Yamada case, the baby was embroiled in litigation as the commissioning Japanese parents had divorced by the time it was born in India.
And in the subsequent case involving German parents, the twins found themselves in a no-man's-land as their country did not recognize surrogacy as a means of parenthood.
The bill drafted by an ICMR expert committee is in keeping with the recommendations made by the Law Commission in August 2009.
There is no way the surrogacy agreements will be enforceable unless the commissioning parents are in a position to take the child back to their country and it is accorded citizenship, which it would have automatically received had it been born to them in the natural course.
Correspondingly, the proposed law will recognise the surrogate child as the legitimate child of the commissioning parents, without there being any need for adoption or even declaration of guardianship. Such an enabling provision cannot however be enforced unilaterally. So, the government cannot just go by the word of the commissioning parents. The safeguards of the child's interests need to have official imprimatur in the form of certificates from the foreign government concerned.
As a corollary, the legislation also provides that the birth certificate of the surrogate child given by the Indian government will have names of only the commissioning parents. In a bid to prevent abuse of the child, the government is also considering provisions stipulating that at least one of the commissioning parents needs to be a donor of the sperm or the egg. This is based on the assumption that a biological link between the commissioning parents and the surrogate child would reduce chances of abuse.
Under the scheme of the proposed law, surrogacy cannot be misused for sex selection and it will be governed by the Medical Termination of Pregnancy Act to prevent unauthorized abortions.
It also seeks to provide a measure of privacy to the commissioning and surrogate parents.