“Neither flesh of my flesh, nor bone of my bone, but still, miraculously my own.”
SURROGACY
The term surrogacy generally refers to the practice of hiring a fertile woman who agrees to become impregnated, usually through donor insemination, and agrees ahead of time to transfer the child to the infant’s biological father and his wife, according to terms of a contract signed before the woman becomes pregnant.[i]
‘Commercial’ surrogacy is an arrangement in which the surrogate mother is paid a fee for carrying and giving birth to the child, and for subsequently giving up that child and all associated parental rights to the commissioning couple. This differs from ‘altruistic’ surrogacy whereby the only exchange of money is compensatory (for example, for travel and medical costs, loss of earnings, maternity clothing, prenatal vitamins, etc.) but the surrogate mother herself is not paid a fee. She is generally motivated by altruistic reasons, although what exactly constitutes as being ‘altruistic’ in the context of surrogacy is often debatable.
The laws relating to surrogacy in India are uncertain, immature, untested and unpredictable. To put it better, renting of womb is legal in India but there is no law at present to regulate surrogacy.[ii] The Legislature is being asked to consider a Bill titled ‘The Assisted Reproductive Technology (Regulation) Bill, 2010’ which envisages a national framework for the regulation and supervision of Assisted Reproductive Technology (ART).
The two highly-celebrated cases with regard to surrogacy in India are:
(a) Baby Manji Yamada v. Union of India and Anr.[iii]
(b) The case of Jan Balaz[iv]
The Hon’ble Supreme Court of India in the case of Baby Manji Yamada v. Union of India and Anr.[v] has upheld the legality of commercial surrogacy in India. However, as already stated there is no legislation specifically dealing with the same. The Assisted Reproductive Technology (Regulation) Bill, 2010 has been drafted by the Ministry of Health and Family Welfare along with the Indian Council for Medical Research (ICMR). This Bill is still pending. The Law Commission in its 228th Report has deliberated upon and given suggestions on issues pertaining to assisted reproductive technology procedures.
Surrogacy arrangement is made as a result of an agreement between the parties. This agreement is written down and every aspect related to the parties is specifically addressed. The rights and liabilities of the parties are specifically laid down. The parties cannot on a later date, after signing the contract, claim that the intention of the parties was any different from what is mentioned in the surrogacy contract.[vi] Therefore, the surrogacy agreements between the intended parents and the surrogate mother are governed entirely by the Indian Contract Act, 1872. The essentials of a contract laid down in Section 10 of the Indian Contract Act, 1872 must be satisfied for an agreement to be enforceable by law. These essentials are as follows:
a) It should be entered into by the free consent of the parties.
b) It should be entered into for a lawful object.
c) It should have a lawful consideration.
d) The parties entering into the contract must be competent to contract.
e) It is not expressly declared to be void.
The Indian Council for Medical Research (ICMR) has issued national guidelines in the year 2005. These guidelines are also to be adhered to while entering into surrogacy arrangements.
It is noteworthy that children born out of surrogacy commissioned by foreigners are not accorded citizenship under the Citizenship Act, 1955. It is a general practice that the intending parents submit documents clarifying that the child born would be granted the citizenship of the country to which they belong.
ADOPTION
There are no uniform laws pertaining to adoption in India. However, the following legislations deal with matters pertaining to adoption:
(i) The Hindu Adoption and Maintenance Act, 1956 – regulates adoption among Hindus, Buddhists, Jains and Sikhs.
(ii) The Guardians and Wards Act, 1890 – The status of ‘guardian’ and ‘ward’ is assigned to the adopting parents and the child. This signifies that the adopted child is not entitled to similar rights as a biological child.
(iii) The Juvenile Justice (Care and Protection of Children) Act, 2000 – This Act caters to the need for a law that would allow children the same rights, whether they were adopted or biological and also delinked the elements of religion from adoption.
Here, mention must be made of the Central Adoption Resource Authority (CARA) which is an autonomous body under the Ministry of Women & Child Development, Government of India. It functions as the nodal body for adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions. It primarily deals with adoption of orphan, abandoned and surrendered children through its associated/recognised adoption agencies.
The process with regard to international adoptions can be briefly understood as follows:
- The parent ought to bring in a letter from an agency dealing with adoptions in their country. This letter would help ascertain the fact whether the adopting parent would be able to provide a decent upbringing to the adopted child and that the child would not be subject to any forms of crime.
- This letter is to be submitted to CARA.
- CARA then assists the adopting parent in finding out an agency which would help the parent in getting a child as per their requirements.
- After the parent has been able to find a child, the relevant permissions are obtained with the help of CARA. The custody of the child is handed over to the adopting parent.
- The adoption procedure gets completed once the child is accepted by the country to which the parent belongs. Until then, the adopting parent remains the legal guardian of the child.
DIFFERENCE BETWEEN SURROGACY AND ADOPTION
The most important difference is that in the process of surrogacy, parents have a biological relationship with the child whereas; in the process of adoption the child is not biologically related to the adopting parents.
[i] MADY TM, SURROGATE MOTHERS: THE LEGAL ISSUES. American Journal of Law and Medicine 1981 7(3)
[ii] http://www.tribuneindia.com/2010/20100714/edit.htm#6, last visited on 27 May, 2013
[iii] AIR 2009 SC 84, 2008 (13) SCALE 76, (2008) 13 SCC 518
[iv] Jan Balaz v. Anand Municipality and Ors., AIR 2010 Guj 21
[v] See Supra n. iii
[vi] Legal Review of the Surrogacy Contract, available at http://indiansurrogacylaw.com/legal-review-of-the-surrogacy-contract.html, last visited on 04 December, 2011