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:
- Who can be regarded to be the legal mother of the child – the egg donor, surrogate mother or intended mother?
- Whether commercial surrogacy amounts to renting of a womb and whether commercial surrogacy is immoral and is opposed to public policy and therefore void?
- Whether allowing commercial surrogacy amounts to psychological and ethical exploitation of the surrogate mother in picture?
- Whose name will appear on the Birth Certificate and how does the legal transfer of parentage take place?
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.