24 May 2010
By Manoj Mitta
New Delhi, India
Having emerged as the hottest destination for surrogacy, it is but natural for India to take the lead in evolving a law that safeguards the interests of all the parties concerned, including the child born through assisted reproductive technology (ART).
There is no precedent to the proposal under consideration that foreigners or NRIs seeking to rent a womb in India be made to give evidence that their country of residence recognized surrogacy and would give citizenship to a child born through agreement.
Both conditions are reasonable as they are designed to deal with the legal uncertainties thrown up by a couple of surrogacy cases that did not pan out in the agreed manner. In the Manji Yamada case, the baby was embroiled in litigation as the commissioning Japanese parents had divorced by the time it was born in India. In the subsequent case involving German parents, the twins found themselves in a no-man's-land as their country did not recognize surrogacy as a means of parenthood. The bill drafted by an ICMR expert committee is in keeping with the recommendations made by the Law Commission in August 2009.
There is no way the surrogacy agreements will be enforceable unless the commissioning parents are in a position to take the child back to their country and it is accorded citizenship, which it would have automatically received had it been born to them in the natural course.
The proposed law will recognise the surrogate child as legitimate child of the commissioning parents, without there being any need for adoption or even declaration of g u a rd i a n s h i p. Such a provision cannot however be enforced unilaterally. So, the government cannot just go by the word of the commissioning parents. The safeguards of the child's interests need to have official imprimatur in the form of certificates from the foreign government concerned.
The legislation also provides that the child's birth certificate will have names of only the commissioning parents. The government also wants at least one of the commissioning parents to be a donor of sperm or egg as a biological link could reduce chances of child abuse.