Indian Surrogacy Law Centre has released its review of the 228th Law Commission of India Report on Surrogacy. Original text of the review is available at 228th law commission report-comments.
On 5th of August, 2009 the Law Commission of India submitted the 228th Law Commission Report titled “Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy” to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India. The report expressed the view of the Law Commission on the Indian Counsel for Medical Research Guidelines 2005 on Surrogacy, the draft Assisted Reproductive Technology (Regulation) Bill and Rules 2008 and the Seminar on “Surrogacy – Bane or Boon”. The report had also made recommendations to be kept in mind while legislating on surrogacy.
Review of the 228th Law Commission Report by Indian Surrogacy Law Centre
1] The Law Commission of India Report on surrogacy has taken into consideration several areas of Surrogacy in India, the prevailing scenario of surrogacy and also recommended standards for the same. The report has regarded that the laws related to surrogacy are highly complex and advised a pragmatic approach while legislating on this issue.
2] The report considered Indian and foreign decisions on surrogacy (also constitution right to procreate) including the Baby M case and the Baby Manji’s Case for reviewing the position on the constitutional validity of surrogacy in India.
3] Though the report has highlighted several issues on surrogacy, the report has failed to move in deeper into the aspects of surrogacy. The report is highly superficial and fell far below the expectations for providing recommendations taking into consideration the Indian situation.
4] The report has failed to notice many glowing issues which require immediate attention. The Report lacks clarity in thought and has found it best to limit itself to what is happening today, instead of suggesting a better tomorrow. The report has not considered the prevailing socio-economic situation in India, which has lead to present boom in Surrogacy. The report has not also been able to identify the future of surrogacy in India, and has not made recommendations for regulating the practice of surrogacy.
5] Paragraph 1.7 of the Report is extracted hereunder:
“1.7 In commercial surrogacy agreements, the surrogate mother enters into an agreement with the commissioning couple or a single parent to bear the burden of pregnancy. In return of her agreeing to carry the term of the pregnancy, she is paid by the commissioning agent for that. The usual fee is around $25,000 to $30,000 in India which is around 1/3rd of that in developed countries like the USA. This has made India a favourable destination for foreign couples who look for a cost-effective treatment for infertility and a whole branch of medical tourism has flourished on the surrogate practice. ART industry is now a 25,000 crore rupee pot of gold. Anand, a small town in Gujarat, has acquired a distinct reputation as a place for outsourcing commercial surrogacy. It seems that wombs in India are on rent which translates into babies for foreigners and dollars for Indian surrogate mothers.”
A specific mention has been made regarding “Commissioning Agent” in the above extract from the report. In the immediate sentence preceding this sentence, mention has been made about the “Commissioning Couple”. The meaning of “Commissioning Agent” is nowhere explained in the report and causes great confusion as to who is making the payment to the surrogate mother. The mention of ‘commissioning agent’ assumes importance for the reason it signifies the existence of an agent communicating in-between the surrogate mother and the intended parent. This practice is not appreciated internationally and is not in line with the Indian Council for Medical Research Guidelines, 2005.
6] In the same paragraph, i.e., in 1.7 of the Report, it has been stated that the usual fee for surrogacy in India is around $ 25000 to $ 30000. This again lacks clarity for the reason that the sentence preceding that was dealing with surrogate mothers. This fee referred to in the Report is the total cost which the Intended Parents would be required to spend on surrogacy in India, and not just for the Surrogate mother.
7] Again, in paragraph 1.7 of the Law Commission Report, specific observation has been made that the Assistant Reproductive Technology Industry is worth about Rs.25 crores. This figure is not based on any official report and lacks accuracy.
8] Paragraphs 1.9, 1.10 and 1.11 has been extracted hereunder:
“1.9 As far as the legality of the concept ofsurrogacy is concerned it would be worthwhile to mention that Article 16.1 of the Universal Declaration of Human Rights 1948 says, inter alia, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family”. The Judiciary in India too has recognized the reproductive right of humans as a basic right. For instance, in B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma, which characterised the right to reproduce as “one of the basic civil rights of man”. Even in Javed v. State of Haryana, though the Supreme Court upheld the two living children norm to debar a person from contesting a Panchayati Raj election it refrained from stating that the right to procreation is not a basic human right.
1.10 Now, if reproductive right gets constitutional protection, surrogacy which allows an infertile couple to exercise that right also gets the same constitutional protection. However, jurisdictions in various countries have held different views regarding the legalization of surrogacy. In England, surrogacy arrangements are legal and the Surrogacy Arrangements Act 1985 prohibits advertising and other aspects of commercial surrogacy. In the US also, commercial surrogacy seems prohibited in many states. In the famous Baby M case, the New Jersey Supreme Court, though allowed custody to commissioning parents in the “best interest of the child”, came to the conclusion that surrogacy contract is against public policy. It must be noted that in the US, surrogacy laws are different in different states.
1.11 If the 1988 Baby M case in the US forced many to put on legal thinking caps, then that year also saw Australia battling with societal eruptions over the Kirkman sisters’ case in Victoria. Linda Kirkman agreed to gestate the genetic child of her older sister Maggie. The baby girl, called Alice, was handed over to Maggie and her husband at birth. This sparked much community and legal debate and soon Australian states attempted to settle the legal complications in surrogacy. Now in Australia, commercial surrogacy is illegal, contracts in relation to surrogacy arrangement unenforceable and any payment for soliciting a surrogacy arrangement is illegal.”
In paragraph 1.10 to of the Report, the Law Commission of India has rightly pointed out that the right to procreate is held to be a constitutional right by the Supreme Court and High Courts in India. But the Law Commission has gone to the extent of assuming “if reproductive right gets constitutional protection, surrogacy which allows an infertile couple to exercise that right also gets the same constitutional protection.” The Law Commission has failed to realize that the issue involved in the case of surrogacy is much larger than the ambit of these decisions as these decisions have not considered the rights of a third party i.e. “surrogate mother”. The right to procreation is the constitutional right, but this right does not include the role of a third party, the surrogate mother. Therefore, a simple analogy of the sort done by the Law Commission Report cannot be extended to a third party reproduction without considering its own pros and cons.
9] The report has failed to note that the problems surrounding Surrogacy in India are not limited to the domestic issues, but goes to an international level. The proposed legislation on surrogacy is required to be addressing the international requirements of surrogacy, and not only domestic. India has made a mark in the recent times for surrogacy in the international level, and is required to address this need of its new found importance. A legislation on surrogacy which does not cater to the needs of the international arena is merely incomplete.
10] The proposed legislation on surrogacy is required to take into consideration the surrogacy arrangement models followed world-over and has to choose the right combination of the different models, so as to serve Indian scenario. Though the world’s second IVF baby was born in India in 1978, Indian Courts did not have many opportunities to deal the complex questions of law about paternity and nationality. The Indian Law on surrogacy is yet on a pre-mature stage, and not many issues have transgressed into the form of litigation except for one or two. This scene therefore gives the Indian law makers an opportunity to learn from the experience world-over through the decision of the courts abroad. The problems that arise over surrogacy are admittedly very complex, and therefore a world-class legislation competent to handle every such issue is the need of the hour.
11] The proposed legislation on surrogacy is required to address the issues that the Intended Parents, both from India and abroad, who are taking up surrogacy in India. The draft should cater the needs of the intended parents on the lines of nationality, paternity of the child etc.
12] The report has failed to make any mention on the rights of the Intended Parents in a surrogacy arrangement. The present situation demands that the drafters have in mind not only the domestic intended parents, but also intended parents world over. Intended parents are bothered to a great extent about their rights before they enter into a surrogacy arrangement. The intended parents opt for surrogacy only as a last resort, with great longing for a child. This desire is what compels the intended parents choose alternative means of reproduction such as surrogacy.
13] The availability of surrogate mothers at less costly compensation is the stimulation for intended parents from abroad who choose surrogacy India. This being so, it is of utmost importance that specific measures are given for the rights of the surrogate mother. Also, measures should be taken for protection of those rights of the surrogate mother.
14] Legal Counselling of the surrogate mother plays a very important role in the process of surrogacy as it helps surrogate mothers understand the actual process in surrogacy. It is required that the legal counselling of the surrogate mother is given by a lawyer or by a social activist, explaining to her the process of surrogacy and also her rights and liabilities. Moreover, the legal counselling is the best method to identify that the surrogate mothers are not forced into surrogacy by her family members. Therefore, it should be recommended that the surrogate mothers should attend the counselling with her relatives.
15] The Law Commission of India has failed to address the need of an international surrogacy agreement. The international surrogacy agreement is required to serve the needs of the intended parents as well as the surrogate mother, so as to protect their interest. The international surrogacy agreement should be enforceable in the Indian Courts, and should be acceptable by the embassy of the nation of the intended parents.
16] The Law Commission report has failed to highlight the need for a national database of surrogacy being done in India. Such statistics is of required to keep track of the statistics in the field of surrogacy.
17] The Law Commission had submitted the report without having done a field study of the present situation prevalent in India with regard to surrogate mothers and Assisted Reproductive Technique Hospitals. Therefore the findings of the Law Commission cannot be clearly serving the needs of today with regard to surrogacy.
18] The Part IV of the Law Commission Report is extracted hereunder:
IV. CONCLUSION AND RECOMMENDATION
“4.1 Surrogacy involves conflict of various interests and has inscrutable impact on the primary unit of society viz. family. Non-intervention of law in this knotty issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational. Active legislative intervention is required to facilitate correct uses of the new technology i.e. ART and relinquish the cocooned approach to legalization of surrogacy adopted hitherto.
The need of the hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones.”
The above paragraph from the Law Commission Report has caused undue confusion from many international intended parents and journalists, especially because of the last line stating that commercial surrogacy arrangements required to be prohibited. This sentence has paved way for so many doubts including whether the commercial surrogacy arrangements are going to be banned in India.
The only observation which can formed from the above is that the Law Commission intends to recommend a system which is a line between the one followed in the United States and the United Kingdom. The Law Commission recommends that the birth certificate shall be in the name of Intended Parents, and it also recommends that the commercial surrogacy needs to be prohibited. This means that the only those reasonable expenses for the surrogate mother to bear the child shall be given by the intended parents. However, this issue is largely unclear and requires deliberation from the Law Commission of India.
19] The Law Commission has fell off from its expectations by making no recommendations regulating the medical institutions who undertake surrogacy. The absence of such recommendations was conspicuously felt.
20] The Law Commission turned blind eye to the amendments required to various other existing legislations. For example, the Indian Evidence Act, 1872 gives a conclusive presumption that it shall be presumed that the husband of woman who gives birth to the child is presumed to be the father of the child. This legislation requires amendment, so as to accept the later scientific developments.
The Law Commission of India in it 228th Report has made a feeble impact in its recommendations compared to the need of the hour. India Legislation has got a long way to go in evolving the right sort of system suiting Indian conditions for surrogacy.