Who Speaks for the Child in a Surrogacy?

by Jwala Thapa

When Linda Vanburen Green left her baby in the premises of the Regional Passport Office in Hyderabad early this year, she only wanted to get a point across to what she felt was the unresponsive attitude of the Passport Seva Kendra staff. Although Ms. Green’s actions might have been able to get past the bureaucracy, this incident does make one ponder over the fate of a child born through surrogacy, especially in case of it’s abandonment.

Surrogacy at present is governed by the guidelines laid down by the Indian Council of Medical Research (ICMR). The Assisted Reproductive Technologies (Regulation) Bill, 2010 aims to bring forth a statutory regulation in response to the increasing incidences of surrogacy in India, both for international and domestic clients. Altruistic surrogacy also takes place through tacit understanding amongst family members or friends.

The ICMR guidelines require a child to be born out of a surrogacy be mandatorily adopted. The guidelines run on a presumption that the child must be genetically related to the intending parents as they require that surrogacy be sought for by “married couples”. However, this might not always be the case as the foetus could be borne out of donor gametes where couples suffer from infertility.

The guidelines also state that the surrogacy contract is enforceable against both parties. This seems appropriate in a scenario where the contract needs to be invoked to track the intending parents and legally bind them to take custody. However, neither the guidelines nor the proposed Bill ensures the immediate safety and well being of the child due to the absence of any affiliated bodies enshrined with such tasks. Is the criminal justice mechanism to be invoked by framing charges under Section 317, Indian Penal Code or the Juvenile Justice (Care and Protection of Children) Act, 2000 or is a suit for specific performance of the contract the only remedy? It is also unclear as to who is to be charged in such a case – the surrogate or the intending parents or the fertility experts involved in the conception or any other individual involved in the birth of the defenseless child. If so, shouldn’t the State not just ensure safety of the child but also identify its parentage and entrust and enforce custody and parental duties against persons who wanted the child?

These are issues which have been left with open ended answers and presumably with an absolute lack of foreboding since it is assumed that couples who resort to an option like surrogacy would not refuse embracing the child after its birth. However, there certainly are aberrations to this as witnessed in the case of Baby Manzi Yamada vs. Union of India and Another [AIR 2009 SC 84; (2008)13SCC 518], wherein the intending mother refused to accept the baby since it was only genetically related to the father and not to her, although she was involved in the beginning. Hence we see that human nature is such that familial instincts automatically ensure that a genetic progeny is nurtured. Hence, the law cannot run on such assumptions and impute blind good faith to couples opting for surrogacy who might lose interest on a child that has no genetic relation to them.

An analysis of the Bill vis-a-vis the child clearly shows that the same open-endedness, similar to the ICMR Guidelines exists. The Bill lacks proper mechanisms to ensure that the commissioning parents are liable in case they refuse to embrace the baby. This flaw is further heightened in cases where parents refuse to accept this child in case of post partum discovery of the physical or mental disability of the child. 

Another aspect of the Bill that must be analyzed is that relating to foreign adoptions. The Bill, in draft Section 34(19) states that in case of foreign or NRI intending parents, a local guardian must be appointed who shall be responsible for the welfare of the surrogate till delivery. The local guardian shall also be responsible for the newborn for a period of one month. The section further requires intending foreign/NRI couples to make an undertaking authorized by their respective embassies that surrogacy is allowed in their country of citizenship. This may be appreciated as the documents along with the passports might be helpful to trace the intending parents in case of abandonment. However, the Bill states that if the foreign parents do not take the child within one month of birth, it has to be given up for abandonment.

Here too, one can see immense amount of good faith put upon the intending parents with no mechanism to enforce the parents to take responsibility for a child who was conceived because of their desire for one.  There is also no mandate for the intending parents to be present at the time of birth. Hence, the welfare of the child after birth and after the waiting period and in case of refusal of the parents to take the child is placed entirely at the hands of the local guardian, who, in all probabilities, gains monetarily.

The appointment of the local guardian itself is a private arrangement without any Court orders as would have been the case in the appointment of a guardian for a minor under The Guardians and Wards Act, 1890. Hence the local guardian is a non-interested party who in all probability would want to shake off from his responsibility as soon as possible. To allow private individuals to come to India and participate in surrogacy in exchange for money with no appropriate national or international regulatory mechanism is callous. Would it not amount to trafficking in children? Once a baby crosses the Indian border, its well being is no longer a concern of the ART clinic, the surrogate, the doctors or the regulatory bodies nor the State. Doesn’t India need to ensure the safety of one, on whose birth some individuals including the government (through taxes, indirectly), have profited monetarily, at least till the child is a major?

If surrogacy is to stay as a desirable practice because of the happiness it brings to many childless couples, a strict regulatory mechanism is imperative and in the opinion of the author the Bill does not fulfil it. Due to the emerging transnational nature of surrogacy, international rules too need to be formulated. Every individual’s life must be nurtured and respected, and surrogacy laws must ensure full protection and safety to the children born out of surrogacy.

Image Courtesy: here and here

(Jwala Thapa is currently a Research Assistant at the WB National University of Juridical Sciences, Kolkata. She has previously written about the Baby Manji Yamada v Union of India case in the Journal of Indian Law and Society here)