German couple Jan Balaz and Susan Anna were able to take their twins Nikolas and Leonard, born to a surrogate mother in India in 2008, home after a two-year legal struggle. The twins were stateless citizens with neither German nor Indian citizenship. German authorities refused visas to the twins because surrogacy is not recognised in that country, and Indian rules did not permit adoption; it was only after the intervention of the Central Adoption Resources Agency (CARA) that the twins were permitted to go home in 2010.
In the case of Baby Manji Yamada, also born to an Indian surrogate in July 2008, legal tangles arose after the Japanese “commissioning parents” divorced and the baby could not leave the country without either an Indian or Japanese nationality. The issue was resolved when the Japanese Government issued a one-year visa on humanitarian grounds, after the Indian Government granted a travel certificate in September in line with a Supreme Court direction.
Cases such as these are flagged by legal experts and social activists as perils of not having a fail-safe legal system to protect the rights of surrogate mothers, newborns and even the commissioning parents. Loosely drawn-up legal contracts for surrogate mothers become the first hurdle in protecting the rights of the women and the newborns, says Shamina Shafiq, member of the National Commission for Women (NCW). “There should be a legal framework ; the contracts should be exhaustive, covering aspects like how much money should be paid, what the provisions will be if the child born has a disability, should the identity of the commissioning parents be kept secret,” she says.
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Advocate Ranjit Malhotra who specialises in private international law and has co-authored a book ‘Surrogacy in India’ says there is a need to create exclusive specialist forums to deal with issues of parentage, nationality, issuance of passports, grant of visas .
“There is a need for corresponding amendments to the Births and Deaths Registration Act, 1969 and The Citizenship Act, 1955. Also, there should be mechanisms to check the credentials of commissioning parents. Home study reports mandated under CARA guidelines in inter-country adoptions could well possibly be applicable in cross border surrogacy arrangements.”
Mr. Malhotra also pitches for the proposed legislation to provide for mediation and arbitration, in the event of disputes. “The Indian Council of Medical Research (ICMR) and Medical Council of India (MCI) should contemplate some sort of surrogacy regulators,” he suggests.
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Currently, there are no guidelines for dealing with mishaps or death of the surrogate mother or the child. There are also no legal provisions to deal with issues like a surrogate mother wanting to undergo an abortion or sex selection leading to termination of pregnancy or invoking Article 21 of the Constitution to refuse to part with the child.
“Our research shows that there are many unscrupulous practices that are carried out like sex determination, using multiple surrogates for the same commissioning parents and even customising babies,” says Ranjana Kumari, director, Centre for Social Research. Advocating adoption, she says: “It is a $ 3 billion industry and regulation in India long delayed.”
Echoing her view, Mr. Malhotra said, “The proposed legislation should prohibit simultaneous multiple forum shopping in different jurisdictions, expressly also prohibiting use of two surrogate mothers, whether in India or abroad leading to two surrogate children born at the same time. It should also address the issue of baby breeding rings and cartels, which are part of illegal cross border migration networks,” he says.