Jan Balaz Update

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There seems to be an update with regard in the Union of India vs. Jan Balaz Case, more known as the German Surrogacy Case. This is the case where child was born through a surrogacy agreement in Anand, Gujarat with an Indian Surrogate Mother. The child could not obtain German Citizenship as surrogacy agreement is considered illegal in Germany. The German Couple applied for an Indian Passport for the child, quoting the indian surrogate mother as the legal mother of the child. The Passport Authorities issued the passport to the child, but later cancelled the same as the surrogate mother cannot be considered to be the legal mother of the child. The German Couple went against the cancellation to the Gujarat High Court. The Gujarat High Court provided relief to the German Couple ruling that the surrogate mother is the legal mother of the child.

The Union of India went on appeal praying that the surrogate mother cannot be considered to be the legal mother of the child and that the issuance of the Indian Passport to the child is not in accordance with law.

The Couple had legal proceedings pending in India as well as Germany. After a series of diplomatic conversation, the German Government had allowed the children to return to Germany. The Couple left for Germany during the pendency of the litigation in India and Germany as a temporary measure. Even at the time of leaving the county, the children did not have German Citizenship.

The case seemed to come up for hearing on 4th September 2014. The Bench consisting of HON’BLE MR. JUSTICE RANJAN GOGOI and HON’BLE MR. JUSTICE R.K. AGRAWAL have discussed the legal implications of international surrogacy arrangements and the possibility of the child being a citizen of no Nation. The case comes up for hearing next after 6 weeks.

Writ filed by Sudanese National dismissed in Punjab and Haryana High Court

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The Punjab and Haryana High Court dismissed the Writ Application filed by a Sudanese National praying to allow surrogacy in India for single parents. The basis of the Writ was that Ministry of Home Affairs had issued a notification issued a notification addressing to the Ministry of External Affairs stating that foreigner wishing to take up surrogacy in India must be a couple married for atleast a period of two years. The petitioner herein Shihabeldin had prayed that surrogacy must be allowed for single parents as well. The Bench constituing HON’BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE HON’BLE MR. JUSTICE ARUN PALLI dismissed the plea preliminarily stating that the ART Bill is pending and the Court cannot void the vacuum in the absence of law.

We are, thus, confronted with a situation where undoubtedly there is a complex issue at hand of surrogacy qua single parents who are foreign citizens. It cannot be lost site of that there would have to be checks and balances in such a situation. As to what would be the final version of the Act and what are the checks and balances would in turn depend on the final proposal of the Cabinet which would in turn have to be placed before the House and only thereafter would it be known. What had persuaded us to intervene in this matter was the plea of the learned counsel for the petitioner that earlier the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (Annexure P-4) were in force. There appeared to be some conflict between the guidelines issued under the Foreigners Act by the Ministry of Home Affairs (Annexure P-2) and the guidelines of the ICMR. However, the conflict for the interim period is resolved by all the respondents being in unison that in the interregnum period the arrangement which would prevail would not permit the single parent foreign citizen surrogacy. The final version would only emerge as stated aforesaid after the Parliament debates on the law. In view of the aforesaid position, we are not inclined to issue a writ in favour of the petitioner, a foreign citizen, who seeks single parent surrogacy as the law in this behalf itself is sought to be enacted and it is at a final stage. This is not a matter where the stated vacuum can be filled in by the Court in the interregnum period, moreso when there is now a unanimous view of the different Ministries of the Government of India as to what should prevail as an interim arrangement. The petition is accordingly disposed of with a hope that the final view would be available with the constitution of the new House which would have the benefit of debating the matters pertaining to the law post the Cabinet having scrutinized the same

In my personal opinion, pending of the ART BIll before the Parliament certainly is not a ground for the dismissal of a Writ. The Court should have appreciated the situation as it is existing today instead of merely waiting for the law to come into force. The Court should have gone into the merits of the case before dismissing the same. The ART Bill has been pending to be passed for a very long time.

The judgment of the Punjab and Haryana High Court make surrogacy in India still inaccessible for single man or woman and gay parents to take up surrogacy in India.

Women and Child Development Ministry comments on Assisted Reproductive Technology Bill

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This is certainly good news. The Union Women and Child Development Ministry, Government of India is in favour of surrogacy for Single and Gay Intended Parents apart from normal heterosexual couple. The Union Women and Child Development Ministry in its comments to the Health Ministry on the Assisted Reproductive Technology (Regulation) Bill, 2013 has stated that the definition of the word “couple” is narrow and must include everyone irrespective of the marital status.

Number of Surrogacies for Surrogate Mothers

The Union Women and Child Development Ministry has proposed that surrogate mothers should be allowed have four pregnancies, including their own children. The Assisted Reproductive Technology (Regulation) Bill, 2013 had proposed that surrogate mothers should not have more than three pregnancies. The Ministry had also proposed that there should be a two-year gap between every childbirth. The Ministry in its comments stated that women above the age of 21 years can be surrogate mothers, with other criterions such as low Body Mass Index and other medical risks such as cardio-vascular diseases, thyroid problems being taken into consideration.

Compensation to the Surrogate Mother

The Union Women and Child Development Ministry is clearly in favour of monetary compensation for the surrogate mothers. The Union Women and Child Development Ministry had opined that a minimum compensation should be paid to the surrogate mother after the Embryo Transfer is complete, irrespective or success or failure of the procedure. Apart from this, the Union Women and Child Development Ministry also provided that the surrogate mother should be covered for contingencies such as medical risks.

Until now, only two ministries have commented on the Assisted Reproductive Technology Bill, which has been proposed by the Ministry of Health – Directorate General of Health Services and the Union Women and Child Development Ministry. The Ministry of External Affairs and the Ministry of Home Affairs have not commented on the Assisted Reproductive Technology. The Ministry of Home Affairs was the agency of the Government that had introduced the restrictions for entry taking up surrogacy in India by introducing the new surrogacy visa.

Contradictory view from DGHS

The Directorate General of Health Services had commented on the Assisted Reproductive Technology Bill last month with a controversial view that surrogacy in India should be available only for people of Indian Origin and not for Foreigners. The view of the DGHS created much of a buzz in the online and offline space with debates questioning it stand. In its letter, the DGHS had proposed three recommendations on the Assisted Reproductive Technology Bill:

  • Surrogacy in India should be allowed only for Indian citizens and people of Indian Origin
  • Secondly, Surrogacy in India should be taken up only by married heterosexual couple and not single or gay parents
  • Thirdly, a woman can be a surrogate only once in life time

The Union Women and Child Development Ministry has now provided a completely contradictory view from that proposed by the Directorate General of Health Services. We would be required to wait and see whether the Union Women and Child Development Ministry response to the Assisted Reproductive Technology Bill would be accepted and incorporated in the final draft of the bill.

Sudan National moves High Court Challenging New Surrogacy Visa Regulation

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A Sudan National, Shihabeldin, has moved the Punjab and Haryana high court challenging the International Surrogacy Visa Regulation of the Ministry of Home Affairs (MHA) which restricts international surrogacy arrangements to married couple (married at least for a period of two years) and bars international surrogacy for single foreign nationals and unmarried couples. The regulation also requires the letter from the country of origin stating that international surrogacy is recognised by their country and that the child born through the surrogacy arrangement would be allowed into their country.

Admitting the application, a division bench headed by Chief Justice Sanjay Kishan Kaul of the Punjab and Haryana high court issued notice to the Ministry of Home Affairs instructing the ministry to file a response to the application. According to the application, the Sudan National is being aggrieved by the fact that he could not take up surrogacy in India as a single parent.

The brief facts as reported are that the Petitioner is a resident of Sudan and desired to become a single parent through surrogacy in India and had contacted a medical facility in India. It was then it came to his knowledge that the MHA had issued a regulation restricting single parents from taking up surrogacy in India. Aggrieved by the same, he had file the present application.

It is reportedly argued that ICMR guidelines has been placed reliance upon to support the contention that single parent may take up surrogacy in India and the new visa regulation in place is contradicting the same. Further, it was reportedly argued that the foreign nationals couldn’t be discriminated by restricting them from taking up surrogacy in India.

It could be recollected at this juncture that the Supreme Court had in the year 2008 decided the case of Baby Manji vs. Union of India, wherein the grandmother of the child was given clear passage to take the child back to Japan. In 2009, arose another interesting case of Jan Balaz, wherein the Supreme Court of India facilitated the movement of the twin children to Germany, even though Germany vehemently tried stalling the same.

Tamil Nadu Fertility Clinics to be registered under Directorate of Medical Services (DMS)

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I am came across a news report that states that the infertility clinics across the state of Tamil Nadu are required to register with the Directorate of Medical Services (DMS), the Health Authority in the State of Tamil Nadu. 
Indian Council for Medical Research (ICMR) has also come up with the initiative to register all Assisted Reproductive Technology Clinics across the country under the “National Registry of Assisted Reproductive Technology (ART) Clinics and Banks in India.”
Till recently there has been no single register to monitor the activities of the Assisted Reproductive Technology Clinics either in every state or for the whole country. I am given to understand a lot of clinics have made their way to register themselves as ART Clinics.
Foreign Nationals taking up surrogacy in India can take up the surrogacy arrangement only in ART Clinics found National Registry of Assisted Reproductive Technology (ART) Clinics and Banks in India. The said requirement is mandatory for the purpose of granting medical surogacy visa.

Commissioning Mother entitled to maternity benefits rules Madras High Court

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The Madras High Court had ruled that a woman who had a child through surrogacy is entitled to the maternity benefits and leave. In case of K. Kalaiselvi vs. Chennai Port Trust.

The Madras High Court had decided the question if a commissioning mother is entitled to maternity benefits after the birth of the child. In this particular case, the commissioning mother was an employee of the Chennai Port Trust. She had a son aged about 20 years, who met his death in a road accident in the year 2009. She took up a surrogacy arrangement with a Hospital in Chennai and had been blessed with a female child born through surrogacy in the year 2011.

She had applied for maternity leave, which was partially granted. Her request to include the child born through surrogacy in the FMI card was rejected. The commissioning mother had also submitted all documents to demonstrate that the child born through surrogacy was her legal child and that she had all such rights as a parent having a child through normal means. The same was not accepted by her employer.

Aggrieved by the order refusing her maternity benefits, she moved the Madras High Court praying that she be declared to be the legal mother of the child and be provided with maternity benefits as would be applicable to natural birth. It was argued on behalf of the commissioning mother that surrogacy is only a scientific advancement, which has not been incorporated into the rules for maternity benefit. Though such a specific rule does not exist for surrogacy, it exists for adoption. That being the case, the commissioning mother be entitled for maternity benefits as she would be entitled. The Chennai Port Trust formally objected stating that there is no specific provision for maternity benefits for children born through surrogacy and the same may not provided to the commissioning mother.

Hon’ble Justice K. Chandru decided the issue with the following observation:

15. This court do(es) not find anything immoral and unethical about the petitioner having obtained a child through surrogate arrangement. For all practical purpose, the petitioner is the mother of the girl child G.K. Sharanya and her husband is the father of the said child. When once it is admitted that the said minor child is the daughter of the petitioner and at the time of the application, she was only one day old, she is entitled for leave akin to persons who are granted leave in terms of Rule 3-A of the Leave Regulations. The purpose of the said rule is for proper bonding between the child and parents. Even in the case of adoption, the adoptive mother does not give birth to the child, but yet the necessity of bonding of the mother with the adoptive child has been recognised by the Central Government. Therefore, the petitioner is entitled for leave in terms of Rule 3-A. Any other interpretation will do violence to various international obligations referred to by the learned counsel for the petitioner. Further, it is unnecessary to rely upon the provisions of the Maternity Benefit Act for the purpose of grant of leave, since that act deals with actual child-birth and it is mother centric. The Act do not deal with leave for taking care of the child beyond 6 weeks, i.e., the post natal period. The right for child care leave has to be found elsewhere. However, this court is inclined to interpret Rule 3-A of the Madras Port Trust (Leave) Regulations, 1987 also to include a person who obtain child through surrogate arrangement.

As has been pointed out by the Hon’ble Madras High Court, maternity leave is the time when a mother would be able to bond with the child. The bonding is not a luxury for a parent, but a basic necessity of any parent. The Chennai Port Trust should have provided the commissioning mother the maternity benefits as she may be entitled to otherwise.