Alumni Seminar in India
13 February 2009 • New Delhi
Seminar report
Surrogacy: Bane or Boon
At the seminar held at India International Centre, New Delhi on February 13, 2009 on
Surrogacy – Bane or Boon, a galaxy of legal luminaries, SOAS alumni, social workers,
NGOs and public spirited individuals deliberated over the debatable issues of renting of
wombs in India. The seminar sponsored by India International Centre was organized by
Chandigarh based lawyers and ex-SOAS alumni members, Anil and Ranjit Malhotra who
specialize in the field of Private International Law. The discussion focused on the
Assisted Reproductive Technology (Regulation) Bill & Rules 2008 made by the Indian
Council of Medical Research, New Delhi and circulated by the Ministry of Health and
Family Welfare for suggestions, views and comments.
Figure 1 - Mr. Justice S. Ravindra Bhat, Mr. Anil Malhotra and Mr. Soli Sorabjee
The following speakers aired their views at the session, which was presided over by Mr.
Soli Sorabjee, Former Attorney General of India:
a)
Dr. Justice AR Lakshmanan, Chairman, Law Commission of India.
b)
Hon'ble Mr. Justice S. Ravindra Bhat, Judge, Delhi High Court.
c) Mr. Anil Malhotra, Advocate, Senior Partner, Malhotra and Malhotra Associates. His
point wise presentation on the legal perspectives on Surrogacy as they exist now and as
under the new Bill besides anomalies / lacunas under the new proposed law are given
below.
d) Mr. Ranjit Malhotra, Advocate and Honorary Consular Representative, Embassy of
Italy.
The following representatives of different High Commissions and Embassies at New Delhi
also aired their views and made contributions in the discussion:
1.
Ms. Diane Roherig, Head of Consular Section of the German Embassy.
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Alumni Seminar in India
13 February 2009 • New Delhi
2.
Ms. Kris Cala, Counsellor (Immigration) and Principal, Migration Officer, Australian
High Commission.
3.
Ms. Lynn Lewis, Senior Migration Chief from the American Embassy.
4.
Mr. Jaswinder Singh and three other senior diplomats from the Consular Section,
Canadian High Commission, New Delhi.
Figure 2 - The Head of the Consular Section of the German Embassy making a point
After the presentations, there was a very intense discussion with questions raised by
practicing Senior Lawyers from Supreme Court and members of the Law Commission of
India besides representatives of NGOs and public spirited individuals. The principal
suggestion of mooted by Mr. Anil Malhotra that the Bill lacked a Forum / Court / Authority
which would look at the problems arising out of surrogacy was unanimously agreed by all
present. The gist of the points raised was as follows:
Ø
The Bill has neither designated, nor authorised nor created any Court or
Judicial Forum to resolve issues which will require adjudication in problems arising out of
Surrogacy, ART and Surrogacy Agreements. This is a very big lacunae in the Bill. There
has to be a Designated or a Defined Court as in the Hindu Marriage Act or the Guardian
and Wards Act which has to be vested with the authority in law to decide disputes arising
under the proposed law.
Ø
The National and State Advisory Boards are only authorities who will promote
ART Technology, Surrogacy Arrangements and related procedures. The proceedings of
these Boards have been deemed to be "Judicial Proceedings" before Civil Courts for
limited purposes. There is no designated Court, Judicial Officer or Judge appointed,
created or nominated for this purpose. Therefore, how far these Advisory Boards will be
able to perform the "Judicial Proceedings" "deemed to be a Civil Court" remains to be
seen.
Ø
Chapter 3 talks of complaints, Chapter 4 talks of duties, Chapters 5 and 6
talks of more ART related issues. Chapter 7 talks of duties. Chapter 8 talks of offences
and penalties which carry serious consequences. But the question is who will adjudicate
these and decide them to impose penalties. Who will determine these "offences." Unless
and until a Court is designated, created or nominated, all this will remain inconclusive,
indecisive and incomplete.
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13 February 2009 • New Delhi
Ø
There are already serious issues of determining parentage, nationality,
issuance of passport, grant of visas and problems of disputed parentage. There is no
Forum defined, designated or created which will look into these problems or determine
how they have to decided or dealt with.
Ø
Baby Manji Yamada's case is an eye opener. Thereafter, the Israeli gay
couple's case is a follower in the sequel of problem areas. Embassies, foreign missions
and High Commissions of different countries in India are looking at a Resolution on these
issues by means of a law in the making. But, parentage, nationality, passport, visa and
related issues remained undetermined in the law in making. There is already a conflict
on adoption and Guardianship as non-Hindus cannot adopt in India. Therefore, would it
not be better to make it mandatory to create a Court for adoption /Guardianship
purposes before a child is removed from India to a foreign country. This will not only
provide a system for uniform application to check malpractices but will also conclusively
ascertain rights of parties in case of a dispute. Moreover, all Embassies, Foreign
Missions and High Commissions will be guided by a proper procedure
Ø
In the light of the above thoughts, it may be necessary to create a procedure
for adoption, guardianship, determination of rights etc. to be mandatory through a
nominated Court, designated Court or specified authority to be compulsorily followed in
case of any inter-country surrogacy arrangement. Likewise, this Forum, Court, Authority
can also be the Adjudicating authority to determine disputes decide offences and
determine penalties under the Bill. Without this, the proposed Act is not meaningful, is
inconclusive and will only create more uncertainty leading to more disputes and
inconsistent views.
Figure 3 - The delegates listening to the address of Ranjit Malhotra
It was suggested that if a specialist court called "Surrogacy Court" is created, it could
comprehensively look at all the above problems for adjudicating disputes arising out of
surrogacy agreements. This was mooted for being added in the Bill. It was also a
unanimous suggestion approved by all that the proposed bill be referred for making
additions and amendments to a Select Committee.
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Figure 4 - Mr. Anil Malhotra and Mr. Soli Sorabjee
In so far, the present times are concerned, the following problems were highlighted by
Mr. Anil Malhotra in his presentation:
(i)
as to what would be the remedy available to biological parent/s to obtain
exclusive legal custody of surrogate children,
(ii)
how can the rights of the surrogate mother be waived off completely,
(iii)
how can the rights of the ovum or sperm donor be restricted and
(iv)
how can the genetic constitution of the surrogate baby be established and
recorded with authenticity.
(v)
as to whether a single or a gay parent can be considered to be the custodial
parent of a surrogate child.
(vi)
what would be the status of divorced biological parents in respect of the
custody of a surrogate child.
(vii)
would a biological parent/s be considered the legal parent of the children.
Figure 5 - Mr. Anil Malhotra, Mr. Soli Sorabjee, Hon'ble Dr. Justice AR. Lakshmanan, Chairman, Law
Commission of India and Mr. Ranjit Malhotra
The answers given by Anil Malhotra as follows were discussed in the seminar:
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Ø
Surrogacy in India is legitimate because no Indian law prohibits surrogacy. To
determine the legality of surrogacy agreements, the Indian Contract Act would apply and
thereafter the enforceability of any such agreement would be within the domain of
Section 9 of The Indian Code of Civil Procedure (CPC). Alternatively, the biological
parent/s can also move an application under the Guardian and Wards Act for seeking an
order of appointment for a declaration to be declared as the Guardian of the surrogate
children.
Ø
In the absence of any law to govern surrogacy, the 2005 ICMR Guidelines
apply. But, being non-statutory, they are not enforceable or justiciable in a Court of Law.
Under para 3.10.1 a child born through surrogacy must be adopted by the genetic
(biological parents). However, this may not be possible in case of non-Hindu foreign
parents who cannot adopt in India.
Ø
Under Section 10 of the Contract Act, all agreements are contracts, if they
are made by free consent of parties competent to contract, are for a lawful
consideration, are with a lawful object, and are not expressly declared to be void.
Therefore, if any surrogacy agreement satisfies these conditions, it is an enforceable
contract. Thereafter, under Section 9 CPC, it can be the subject of a civil suit before a
Civil Court to establish all /any issues relating to the surrogacy agreement and for a
declaration/injunction for the reliefs prayed for.
v
As of today, it may be stated that a single or a gay parent can be considered
to be the custodial parent by virtue of being the genetic or biological father of the
surrogate child born out of a surrogacy arrangement. Japanese baby Manji Yamada's
case (JT 2008 (11) SC 150) and the Israel gay couples case who fathered the child in
India are clear examples to establish that this is possible. Under para 3.16.1 of the 2005
ICMR Guidelines dealing with legitimacy of children born through ART (which were the
basis of the claim in the Japanese baby's case in the Supreme Court), this claim can be
made. However, only in a petition for guardianship under GWA and / or in a suit for
declaration in a Civil Court, the exclusive custodial rights can be adjudicated by a court of
competent jurisdiction upon appreciation of evidence and considering all claims made in
this regard.
v
Essentially, this is a question which will require determination in accordance
with the surrogacy agreement between the parties. There would be apparently no bar to
either of the divorced parents claiming custody of a surrogate child if the other parent
does not claim the same. However, if the custody is contested, it may require
adjudication by a court of competent jurisdiction.
v
In answer to this question it can be stated that the biological parents would
be considered to be the legal parents of the children by virtue of the surrogacy
agreement executed between the parties and the surrogate mother. Under para 3.16.1
of the 2005 ICMR Guidelines dealing with legitimacy of the child born through ART, it is
stated that "a child born through ART shall be presumed to be the legitimate child of the
couple, born within wedlock, with consent of both the spouses, and with all the attendant
rights of parentage, support and inheritance. Even in the 2008 Draft Bill and Rules, a
child born to a married couple, an unmarried couple, a single parent or a single man or
woman shall be the legitimate child of the couple man or woman as the case may be.
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However, the moot question which may arise for determination whether a judicial verdict
for determination of rights of parties in a surrogacy arrangement is essential in respect of
a foreign biological parent who wishes to take the surrogate child to his / her country of
origin or permanent residence, it can be said that either a declaration from a civil court
and / or a guardianship order ought to be a must to conclusively establish the rights of
all parties and to prevent any future discrepancies arising in respect of any claims
thereto.
Figure 6 - Mr. Justice S. Ravindra Bhat and Mr. Anil Malhotra
It may added that it was extremely fruitful, thought provoking and very important
discussion which led to understand the magnitude of the problem because India would
be the first country to legalize Commercial Surrogacy.
Anil and Ranjit Malhotra
Malhotra & Malhotra Associates
malhotraranjitindia@rediffmail.com
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