Debarring single persons and foreign nationals from being parents will amount to rewriting laws which have been enacted by Parliament

Recent meetings on March 6 and 7 of departments and ministries of the Government of India, to discuss and review divergent views on the draft Assisted Reproductive Technology (Regulation) Bill, 2013 (ART Bill), have resulted in a proposal to revise the Bill with significant changes. The most crucial proposal is to restrict surrogacy in India to “infertile Indian married couples” only. Non-resident Indians (NRIs), Persons of Indian Origin (PIOs) and Overseas Citizens of India (OCIs) would be eligible but foreigners, unless they’re married to Indian citizens, will not. The purpose of this is to prevent exploitation of Indian women who may be tempted to take the risk of surrogacy in the face of financial hardships.

Existing policy

The Indian Council of Medical Research (ICMR), working under the Ministry of Health and Family Welfare (MoHFW) finalised the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India in 2005 after extensive public debate across the country involving all stake holders. Under these guidelines, there was no legal bar for the use of Assisted Reproductive Technology (ART) by a single or an unmarried woman, and the child born would have legal rights on the woman or man concerned.

Thereafter, the draft ART Bills of 2008, 2010 and 2013, stated to be revised based on the recommendations of the Ministry of Law and Justice, have consistently proposed that ART in India would be available to all persons including single persons and foreign couples. The draft Bill 2013, an exhaustive document containing 100 sections addressing various issues relating to ART, is stated to now be ‘Top Secret,’ being a part of the Cabinet note as per the requirement and procedure of the handbook of the Cabinet Secretariat on Cabinet writing notes. The draft Bills and Rules of 2008 and 2010 were extensively circulated for public opinion, besides being sent to State governments, institutions, statutory bodies, NGOs, medical professionals and other stakeholders, but the 2013 Bill was not circulated or placed in the public domain.

The Supreme Court judgment in Baby Manji Yamada vs Union Of India case in 2008 took due notice that in cases of “commercial surrogacy,” an intended parent may be a single male. The Court had the occasion to consider the petition of a Japanese grandmother wanting issuance of a travel document for her Japanese divorced son’s daughter.

In another matter decided by the Gujarat High Court in Jan Balaz vs. Union of India, 2009, the decision of the High Court holding — that babies born in India to gestational surrogates are Indian citizens and are entitled to Indian passports — has been stayed by the Supreme Court. However, the twin German children in the case were permitted to leave India upon the directions of the apex Court. The main issue of nationality and citizenship, being of grave importance, is still undecided.

The Ministry of Home Affairs (MHA), according to the guidelines of July 9, 2012, restricted surrogacy to foreign nationals; i.e. a man and a woman married for at least two years would be required to take a medical visa for surrogacy in India. As of now, even though surrogacy is an administrative concern and in the domain of the MoHFW, it has been decided that till the enactment of a law on the ART Bill, 2013, the guidelines issued by the MHA will prevail till then. Hence, foreign single parent surrogacy is barren.

Restricting surrogacy to infertile Indian married couples only, and debarring all foreigners other than OCIs, PIOs and NRI married couples, is a turnaround in the thought process. The suggestion barring foreigners from commissioning surrogacy in India is stated to be subject to there being no conflict with other Indian laws applicable to foreigners, such as those for adoption. The most important contradiction and inconsistency seems to be that arising from the Guidelines Governing the Adoption of Children, 2011, for inter-country adoptions, which now have statutory sanction by virtue of them having being enacted under the Juvenile Justice (Care and Protection of Children) Act, 2000. The Juvenile Justice Act clearly provides that a court may allow a child to be given in adoption to an individual, irrespective of his or her marital status.

Moreover, the Guardian and Wards Act, 1890 and The Hindu Minority and Guardianship Act, 1956 permit a guardian to be declared or appointed where the Court is satisfied that it is for the welfare of a minor. Barring single parents to adopt is not statutory but can be a restraint in a particular case upon examination by a competent court. Therefore, debarring single persons and foreign nationals from being parents will amount to rewriting laws in existence which have been enacted by Parliament.

Recent decisions

The Supreme Court in Stephanie Joan Becker vs State in 2013 permitted a single 53-year-old lady to adopt a female orphan child aged 10 by relaxing the rigour of the guidelines of the Central Adoption Resource Authority (CARA). It said the proposed adoption would be beneficial to the child as experts were of the view that the adoption process would end in successful blending of the child in the U.S. Likewise, in Shabnam Hashmi vs. Union of India, 2014, the Court upheld the recognition of the right to adopt and to be adopted as a fundamental right. It held that every person, irrespective of the religion he/she professes, is entitled to adopt. The latest verdict of the Supreme Court recognising transgenders as the third gender says “discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution.” Clearly, legal recognition means that they would be entitled to rights of adoption, succession, inheritance and other privileges under law.

The sum and substance is not to shut the door to surrogacy which is an accepted societal practice in India and grown slowly over almost two decades. Medical technology, advancement of science permitting free export of frozen embryos and other scientific methods have offered hopes to childless people. The more pragmatic approach would be to make a law hedged with safeguards, checks and balances. The appropriate and desirable method would be to create a mechanism to judge the suitability of proposed surrogate parents rather than to debar all single and foreign persons. This would also avoid any conflict with existing laws of adoption wherein foreign persons including single parents are allowed to adopt through a strict and rigorous mechanism provided by CARA.

Simply trying to shut out surrogacy for foreign nationals and single persons may not be the ideal way to stamp out the hopes of persons wishing to be a parent. Whether Indians or foreign nationals, law treats persons as individual parents when required. A restrictive meaning to the word “person” cannot qualify or change the definition by restricting it to an Indian national. The celebrated view of the apex court in widening the horizons to prevent discrimination on grounds of sex or gender identity is a new thought process based on international covenants of human rights. We cannot permit our thinking to be retrograde simply because of the problems accompanying surrogacy. Administrators cannot usurp law making functions to be a law unto themselves.

(Anil Malhotra is the author of Surrogacy in India – A Law in the Making. He is a Chandigarh-based practising lawyer.)

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