The view among experts looking into the new Assisted Reproductive Technologies (Regulation) Bill 2014 that single parents and foreign nationals should not be allowed to have children through surrogates in India has come in for criticism.
The experts argued that it was promoting trafficking in women and children and in the absence of regulations, surrogate mothers were being treated unjustly.
“We cannot deprive single men or women of the right to having children through surrogacy. There is a need to change the language of the legislation and surrogacy should be allowed to persons not only couples,” said Ranjana Kumari, director of the Centre for Social Research, an NGO that works on the issue.
Advocate Anil Malhotra, who challenged the single parent restrictions on surrogacy, said the ban would be untenable as the law permitted single parents and foreign nationals to adopt under the Juvenile Justice Act and any contrary move might not be permissible under the Fundamental Rights given to all persons.
“Any restriction on foreign parent, single or couple, may be questioned as foreigners, irrespective of marital status, are allowed inter-country adoptions under Indian law. The Supreme Court allows religion and gender-free secular adoptions. Even transgenders will have rights. A restrictive law controlling foreign parent surrogacy, like adoptions, may be the better legal option, rather than banning it altogether. A right to reproductive autonomy as part of Right to Life under Article 21 is available even to foreigners as ‘persons’ and cannot be unreasonably curtailed,” he said.
The view to disallow foreign nationals stems from the concern over citizenship rights of children born to Indian surrogate mothers as several countries have banned surrogacy and do not recognise the children born through assisted means as their citizens.
On September 4, the Supreme Court had asked the government to clarify its stand on the citizenship of children born via an Indian surrogate mother in India, but whose biological mother is a foreign national. “Under the Constitution, a child born here from an Indian surrogate mother is entitled to Indian citizenship, but what happens if the biological mother is a foreign citizen and the child applies for citizenship of that country,” a Bench led by Justice Ranjan Gogoi asked.
(With additional reporting by Krishnadas Rajagopal)
