SURROGACY: Obsevations of Law Commission OF India (228th Report)

                               India is becoming an economic superpower, supported in part by its huge outsourcing industry. One sliver of this is “reproductive outsourcing”, more commonly known as surrogacy. Commercial surrogacy has been legal in India since 2002.

                              The legal aspects surrounding surrogacy are very complex and mostly unsettled. There is a default legal assumption in most countries that the woman giving birth to a child is that child's legal mother. In some jurisdictions the possibility of surrogacy has been allowed and the intended parents may be recognized as the legal parents from birth. Many states now issue pre-birth orders through the courts placing the name(s) of the intended parent(s) on the birth certificate from the start. In others the possibility of surrogacy is either not recognized (all contracts specifying different legal parents are void), or is prohibited.

                                


                                           The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY .” The following observations had been made by the Law Commission:


                      [1] Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.


                       [2] A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.


                      [3] A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.


                      [4] One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.


                     [5] Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.


                     [6] The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.


                     [7] Right to privacy of donor as well as surrogate mother should be protected.


                     [8] Sex-selective surrogacy should be prohibited.


                     [9] Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.


              The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is something that has been issue in the mind of the Law Commission. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2010.


                  There is an upcoming Assisted Reproductive Technology Bill, aiming to regulate the surrogacy business. However, it is expected to increase the confidence in clinics by sorting out dubious practitioners, and in this way stimulate the practice.