As it is much known surrogacy has been disallowed for foreign nationals and even for people of Indian origin but holding a foreign citizenship. There seems no clear rationale in this decision and a lot of couples have been affected by this decision, which has been reasoned by the Indian Government to restrict commercialisation of surrogacy in India.
We have been getting regular queries from OCIs, NRIs and foreign couples who have started their surrogacy process earlier, but for some reason decided to not go forward at that point of time, and are looking to pursue the surrogacy arrangement now. The good news is that there is a slight chance that such couples might be able to move forward with their surrogacy arrangement.
This advise comes from the (iv) Para of the notification issued by Ministry of Health and Family Welfare, Government of India dated 04th November 2015. The relevant content of this notification is extracted hereunder:
(iv) However, there may be cases where – prior to issue of this letter action might have been initiated/ taken by surrogacy clinic/ART Clinic/IVF Clinics/Genetic Counselling Centers/Genetic Laboratories/ART Banks or such other clinical establishment to commission surrogacy, including import of ‘Human Embryo’ and implantation thereof into surrogate mother or child/children born from it. Such cases will be allowed to be complete the processes already started to avoid medical complications. However, all such cases will approach the State Health Authorities for permission. The State Health Authorities will decide such cases on case to case basis.
The following points can be learnt from the above notification. Firstly, couples who have earlier started the medical process for surrogacy and are having frozen embryos in India or have imported any genetic material can take advantage of this provision to complete their surrogacy arrangement.
Secondly, the appropriate authority that they are required to approach are the State Health Authority. The Notification has not been explicit about the authority, but it can be seen that the Notification has been addressed to Secretaries of Health and Family Welfare of all the State Governments. The Authorities would be required to submitted with a legally drafted representation for them to consider and order on the same.
We have come across several cases where the couples had approached FRROs instead of the State Health Authorities. The FRRO are instructed not to provide approval for all cases involving foreign nationals seeking surrogacy in India. I would recommend that couples who have earlier started the medical process such as having frozen embryos in India can approach the state health authorities seeking such permission and it shall be considered on a case-by-case basis. I would also emphasise that you seek legal help to draft your application to the State Health Authority in order to ensure application would stand in a court of law, if so needed.
As an encouraging move, the Government of Kerala has allowed maternity leave for 6 months and other benefits to intended mothers of children born through surrogacy. The following is the copy of the governmental order passed in this regard:
In the past few months, there have been different notifications released by different government agencies about surrogacy for Indian and Foreign Nationals. I thought it is best to compile and post of them together.
In a sudden move, the Government of India represented to the Supreme Court that the Government is not support of surrogacy for foreigners and looks for banning the same. The Government of India, in a hurried move, released information to the Press that it looks for disallowing commercial surrogacy for foreign nationals on late evening prior to the hearing. Also, the Indian Council for Medical Research sent out the following notification to all ART Clinics requesting them not the “entertain” foreign nationals for surrogacy. The communication is found below:
The Government also submitted to the Supreme Court that it reversed the Notification that allows free import of gametes into India from foreign nations except for research purposes although no specific notification is found to that effect.
The Government made the above representations to Supreme Court in the hearing of Public Interest Litigation (PIL) filed by Advocate Jayashree Wad by impleading herself in the Jan Balaz Case (German Couple’s Case). In the last hearing of the same case about 2 weeks back, the Supreme Court had asked the Government to come out with clarity as to how it plans to regulate commercial surrogacy and had asked 14 specific questions on the subject-matter. I am informed by my sources that the Supreme Court expressed its displeasure in the manner by which the Government had careless and hurriedly decided the matter that is subjudice. The case is to be listed next month.
In my personal view, the stand taken by the Government is rather rash and unwary.
Government moves on a matter that is subjudice
The foremost concern is that the Supreme Court was considering various issues related to commercial surrogacy for both domestic and international couples. The Supreme Court had infact gone deep into the matter, trying to ascertain what are the rights of the donors, biological parents and the surrogate mothers and had posed 14 specific questions on the matter asking for the Government’s view on the same. The Government had tried to clear avoid the issue on hand and moved to stop commercial surrogacy for foreigners as an escape route, rather than addressing the issue. The Government even failed to answer the fourteen questions that were posed by the Supreme Court.
Consultative processes disturbed
The Government had asked for opinion/comments on the Assisted Reproductive Technology Bill, 2014 which has been published by the Government. The first reaction of the stake-holders was that the allocated time of 45 day to submit the opinion or the comments was too less to read into the intricacies of the issue on hand. Now, the Government has made the whole consultative process a mockery by disallowing commercial surrogacy for foreign nationals. It is sad to see that the Government has least regard to the opinion the public on the matter of Third-Party Reproduction by decisions that significantly affects the lives of many childless couple.
What is the state of the embryos that are already in India?
The Government had submitted to the Supreme Court that the Notification that allowed import of human embryos has been reversed and that human embryos can no longer be imported into India, except for the purposes of research. With this move, the Government stomps on the hope of several families who are in the process of surrogacy. The Indian Ministry of Home Affairs had been issuing “medical visa for surrogacy” even immediately prior to this decision on 27th October 2015. Several foreign couples are in India with valid medical visa at the moment in the process of the surrogacy arrangement. What is the state of the parents who are in the process of surrogacy? What is the status of the embryos that are already in India waiting to be transferred? The Government has a lot on its head to answer now.
The National Commission for Woman has given its opinion on the Assisted Reproductive Technology (Regulation) Bill, 2014 as part of the consultative process in consultation with the Ministry of Law and Indian Council of Medical Research. The two core recommendations are that commercial surrogacy must be allowed only for Resident Indian Nationals and that a woman must ed to be a surrogate mother irrespective of the marital status.
Surrogacy only for Indian Nationals
The National Commission for Woman has recommended for ban on foreigners, including PIO and OCI on taking up surrogacy in India as part of the consultative process in the opinions on bill. The Assisted Reproductive Technology (Regulation) Bill, 2014 does not allow commercial surrogacy for foreigners, but allows PIO and OCI to take up commercial surrogacy. The reasoning given by the commission is that it would curb commercialization of surrogacy. In my opinion, allowing surrogacy for foreigners and Overseas Citizens of India does not in any manner commercialize surrogacy than what it already is. Surrogacy arrangement/agreement is a private transaction between two parties, the surrogate mother and the intended parents. There is no need for a governmental interference thereby limiting the right of the parties to transact with one another.
Single Woman be surrogate mothers?
Surprisingly, the Commission recommended that single woman, irrespective of their marital status must be allow to be surrogate mothers. If only married woman can be surrogate mothers, it would restrict the reproductive autonomy of a woman is the reasoning, which seems quite unacceptable. We have always recommended that the surrogate mother must have been married, begotten children for herself and must have completed her family. This would facilitate the surrogate mother to return to her family after handing over the child to the intended parents. Medically also, it is a prerequisite that the surrogate mother has proven fertility, which would mean that she has earlier pregnancy. If the surrogate mother has not had children earlier, she would not know what to expect out of a pregnancy and might find it difficult to cope up with the process.
The Union of India found itself in a precarious position unable to explain to the Supreme Court of India on how it plans to monitor surrogacy in India. The Apex Court of India expressed displeasure against the Government while hearing the Public Interest Litigation (PIL) filed by Advocate Jayashree Wad by impleading herself in the Jan Balaz Case (German Couple’s Case) that has been pending before the Supreme Court. The case had been filed by a German Couple who were unable to take their child back to Germany as their country did not allow surrogacy. With the addition of this PIL, the scope of the case has snowballed into a larger issue.
The Government of India has been trying to come out with legislation governing commercial surrogacy from the year 2008. The Indian Council for Medical Research has been consulting stake-holders and Non-Governmental Organisations to understand the issues related to surrogacy and Third Party Reproduction. The latest version of the Bill was released by the Ministry of Health and Family Welfare on 30th September 2015 is titled “Assisted Reproductive Technology (Regulation) Bill 2014”.
The Supreme Court posed pointed question the Government on various issues to relating third party reproduction:
- Whether in commercial surrogacy the surrogate mother is the only mother of surrogate child? The Petitioner raises this issue in view of the pain and suffering the mother undergoes for 9 months and the risk along with all the psychological and emotional problems.
- Whether a lady who donates her egg in connection with a commercial surrogacy mother can be said to be mother?
Whether both “surrogate mother” and “genetic mother” (who has donated the egg) can both be said to be mother of the surrogate child.
Whether commercial surrogacy involved sale of a child in view of the fact that surrogate mother relinquishes her parental rights for money?
Whether commercial surrogacy amounts to renting of a womb?
Whether commercial surrogacy is immoral and is opposed to public policy and therefore void u/s 23 of the Contract Act. 3
Whether commercial surrogacy as practiced in India amounts to economic and psychological exploitation of surrogate mother?
Whether commercial surrogacy is inconsistent with the dignity of Indian womanhood and therefore violative of Article 21 of Constitution?
Whether commercial surrogacy involves trafficking in human beings as it involves sale of a surrogate child, relinquishment of the surrogate’s parental rights for money and involves rent of womb thus violating Article 23 of the Constitution.
Whether commercial surrogacy should be prohibited?
Whether import of human embryo amounts to commoditisation of human life and thus violates article 21? Whether notification dated 2.12.2013 of the GOI issued under S.5 of the Foreign Trade (Development & Regulation) Act is violative of Articles 21 & 23?
Whether human rights of a surrogate child born out of commercial surrogate are violated and as such child would face psychological & emotional problems.
Legal system does not seem to have answer to the following questions:
(a) What happens if surrogate dies during child birth?
(b) What can surrogate do if commissioning couple refuse to take child on the ground that it is abnormal of physically/mentally challenged.
(c) Case when surrogate refuses to hand over child.
(d) remuneration of surrogate.
(e) Who will bear the medical bills if surrogate falls ill.
(f) What happens to unused eggs or embryos and who supervises their fate.
(g) Should surrogacy arrangements be disclosed to 4 child. If so, when?” The learned Solicitor General who was not available on the previous dates of hearing is in Court today and has submitted that the proposed Bill i.e the Surrogacy (Regulation) Bill, 2014 is undergoing the consultative process at present and he anticipates a period of three months for the process to be over.
Concern over import and Export of Gametes
The SC also expressed concern over the 2013 Notification published by the Government of India that allowed import and export of embryos. Whether human embryos are being sold was the concern of the Supreme Court. The Supreme Court also questioned what is the basis of allowing surrogacy for foreigners.
The Supreme Court expressed displeasure in the way the Government of India was viewing surrogacy and wanted to know the view of the Government on an array of issues including those listed above. The next hearing of the case is scheduled to be on October 28th 2015.
The Ministry of Health and Family Welfare, Government of India, has released a new copy of the Assisted Reproductive Technology (Regulation) Bill, 2014 as part of the consultative process. The copy of the Bill is found below. We encourage the general public to file their comments and suggestions on this Bill.
A Swiss Court has ruled against a same-sex couple to be considered legal parents of the child born through surrogacy in US. The Couple who had registered their partnership in the US were recognised as legal parents of the child born though surrogacy as per the US law. But once the couple returned to the Switzerland in 2014, the Switzerland Federal Court ruled against acknowledgement of both the parent to be legal parents of the child. Though same-sex marriages are legal in Switzerland, surrogacy is not. It seems that the adoption by a same-sex couple is also not permitted as per the existing laws in Switzerland. That would mean that the parenting by a same-sex couple is prohibited, although their relation can be registered legally. In a country that allows euthanasia, the use of assisted reproduction is highly restricted disallowing egg or sperm donation for ethical reasons. The decision of the court echoes the displaced moral high-grounds that is followed by many European states that do not allow surrogacy. When a country believes in same-sex union, the parenting by the couple must also be seen no differently. The views on surrogacy can be debated, but the Court cannot rule against the recognition of the same-sex parents only because the child was born surrogacy.
Nepal is the latest addition to list of nations that is trying to regulate surrogacy. The Supreme Court of Nepal had come out with a decision to stay surrogacy practices until there are clearer guidelines regulating surrogacy from the government.
Nepal had come up as a popular destination along with Thailand for surrogacy after India had restricted surrogacy to married heterosexual couples. Nepal turned out to be a popular alternative for same-sex couples and single parents from many parts of the world. With Thailand out of the picture after the surrogacy ban, Nepal dominated itself with the same-sex couples and single parents seeking surrogacy in the South-Asian region.
The irony about surrogacy in Nepal was that the Nepal did not allow surrogacy for its own citizens, meaning that the surrogate mother could not be from Nepal and the intended parents also cannot be from Nepal. International Intended Parents sought Nepal for their unregulated outlook towards surrogacy and most of the surrogate mothers were usually from India. When a devastating earthquake had hit Nepal in April 2015 killing about 9000 people, the Israeli Government evacuated the newborn children born through surrogacy from Nepal. Most of the surrogates who got stuck in Nepal during the earthquake were mostly Indian Nationals.
There have also been news-reports that few surrogates in Nepal were actually Nepali woman who had represented themselves to be Indian nationals in order to be surrogate mothers. In fact, this is one of the most important contentions before the Supreme Court of Nepal in the plea for banning of surrogacy.
Nepal’s stay on surrogacy brings a clear void for single and same-sex couples wishing to take up surrogacy in the South Asia region. India does not allow surrogacy for the single and same-sex couples. Thailand has also banned commercial surrogacy.
Thailand Bans surrogacy
Thailand has given the official end to commercial surrogacy by bringing into effect the law which was passed in February this year. Thailand was a popular option for international surrogacy with much less regulation. Thailand did not have a law regulating surrogacy and the surrogate mothers were available in abundance. With no regulatory body in place, the industry was flourishing. Thailand’s surrogacy also surged forward when India disallowed surrogacy for homosexual couples. India had introduced a new category of visa called the “medical visa for surrogacy” which required that the intended parents to be a married heterosexual couple married at least for a period of two years.
Thailand’s decision to ban commercial surrogacy came after the controversial baby Gammy case. An Australian couple had deserted one of the twins born through surrogacy after they came to know that the child had down-syndrome. With this case widely discussed in the international media, the Thai Authorities started crackdown operations on surrogacy industry. Another case was exposed where a Japanese single man had fathered about 16 children through surrogacy in Thailand. With these cases in hand, the newly formed military government in Thailand had brought out strict reforms to ban commercial surrogacy, also stating that surrogacy was never legal in Thailand.
Thailand has now imposed restrictions similar to what was introduced in India. The present law requires that those wishing to take up surrogacy in Thailand must be a couple, a man and a woman legally married for at least three years with atleast one of them holding Thai nationality. It also requires that the surrogate mother must have her own children, and must take up the surrogacy with the consent of her husband. Ideally the surrogate mother must be a sibling of the couple. If the surrogate is not a sibling to the intended parents, then there are also few restrictions on who can be the surrogate.
The new law prohibits commercial surrogacy for foreign clients. Offences under the law are punishable by up to 10 years in prison and a fine of up to 200,000 baht (USD 6,200).