This article is written by Saniya Khanna who is pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

Introduction

Children are the world’s most valuable resource and the best hope for the future. Human life is the creation of the culmination of two individuals coming together to produce another. We, humans, are mortal beings thereby ceasing to exist at some point of time in the future. Thereby we make efforts to secure our presence in this man-made world by raising and grooming a child to look after us in old age. A child is seen as the path of security, dependency financially, physically and emotionally as well as the offspring to carry on the lineage. With the advent of science and technology, nothing is impossible today to the extent that even children can be produced using science than the conventional process of biology i.e through Surrogacy. 

Surrogacy refers to the circumstance wherein one woman agrees to carry the child and give birth to the child to a couple who are unable to reproduce a child.  Black Law’s Dictionary classifies surrogacy as gestational and traditional. The former being the process whereby the woman provides the fertilised egg and other women give birth to the child and the latter being the process wherein the women to give the fertilised egg and birth to the child are one and the same. 

As opposed to the common notion, that Surrogacy is a relatively old concept and has been in existence since the eighteenth century. As per the Hammurabi, the legal code of Babylon times it enlists the particular directions with regards to surrogacy, its process, mechanism as well as the rights of the surrogate mother and the wife taking the child post birth. Even in Indian Scripture, Mahabharata reflects on instances of surrogacy being prevalent in the kingdom of Hastinapur i.e the birth of hundred sons being born by the in-vitro fertilisation process. 

In the modern times, the United Nations Report of 2001, as well as Article 16(3) of the Universal Declaration of Human Rights, 1968 and International Covenant on Civil and Political Rights, 1966, have recognised that every human being irrespective of their social status has the basic human right to have a family. It is an inherent and universal right available to all. Furthermore, these declarations cast a duty upon the state to protect and assist in the creation of families in the society.

In India, the Hon’ble Court has held that every individual enjoys and attains the right to reproductive autonomy, to procreate, and to have a family as guaranteed under Article 21 of the Indian Constitution. However, the existence of surrogacy is not a grey area but it is the commercialisation of the process which has led to serious moral, ethical and socio-legal questions being raised by the members of the society all around the globe such as the rights of a child born through surrogacy. 

Rights of surrogate child 

The Assisted Reproductive Technologies Bill, 2010 specifies the agreement for surrogacy as a contract between persons who avail the assisted reproductive technology and a surrogate mother to have a child. The Act implies that surrogacy is a well-defined contract establishing and enlisting the rights, duties and obligations of the parties involved. The law is well settled with respect to the rights of the parents to whom the child is given to as well as the surrogate mother. However, the most integral party to the contract is the child itself whose rights have either been vaguely defined in several Law Commission Reports or remain silent in certain situations. 

The 288th and the 289th Law Commission Reports collectively provide for the limited rights of the surrogate child. Firstly, regarding citizenship. The child born out of surrogacy by the sperm or egg donation from any foreigner or foreign couple will not be recognised as an Indian child. Secondly, all the rights associated with the child so born out of surrogacy will be transferred to the couple from the surrogate mother on the birth of the child; the surrogate mother is legally obligated to do so.

Thereby, the birth certificate will be registered in the name of the parents or individual who gets the surrogate child. The child will be their legitimate child, irrespective if the couple divorce each other before the birth of the child. Thirdly, the legal custody of the child shall transfer to the local guardian if the foreign party who entered into a surrogacy agreement fails to take the delivery of the surrogate child. Such that, the local guardian has the right and authority to place the surrogate child up for adoption. Further, provided that the child is not claimed by the legal representative within a month of the birth of the child. 

The Assisted Reproductive Technologies Bill, 2010, enlists certain additional rights of the surrogate child. Firstly, as per Section 62(1) of the 2010 Act, the surrogate child shall have the right to gain and be informed about anything but the personal identification of the biological or surrogate mother upon attaining majority. Further sub-sections of section 62, state that only the legal guardian can attain the personal identification for life-threatening and medical conditions for the welfare of the child. Secondly, the act further clarifies that such a child to a foreigner, person of Indian origin will not be granted Indian citizenship. 

However, the Surrogacy (Regulation) Bill, 2016 imposes a restriction on commercial surrogacy, restricting ethical and altruistic surrogacy. It also allows only legally married (for a minimum of five years) and infertile Indian couples. It restricts and prohibits overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples from having a child via surrogacy. 

Analysis & critique 

The prevalent rights of a surrogate child in India are not only limited but also contradictory to each other. As stated above the legislations and Law commission reports only cater to the rights of the surrogate child with respect to citizenship and legitimacy of the child. On one hand, the Regulation of 2010 considers foreigners and even divorces to be the legitimate parents of the surrogate child but the latest law on surrogacy restricts it. If due to certain reason if the couple party to the surrogacy agreement get separated or divorced, on birth of the child the surrogate mother is bound to relinquish all her rights with respect to the surrogate child and on the other hand, the separated couple cannot also claim the child, therefore the legitimacy and the custody of the child rests with no one.

This goes against the object of the Bill of 2016 which caters to the welfare of the child. Furthermore, since it is a contract in the eyes of law, it does not get frustrated on the mere separation of the coupled wanting the child as per the Indian Contract Act. 

Moreover, it debars overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples from having a child via surrogacy which violates the grundnorm of the country i.e. the Constitution of India under Article 14 as there is no intelligible differentia to not give them these rights as well as Article 21 which recognises the right to motherhood. Furthermore, the Hon’ble courts of the country have accepted gay individuals to be treated as any other male or female individual and have also recognised transgender individuals and their rights.

The concept of adoption and surrogacy are similar in nature i.e. having a child through non-biological means but by different processes. The former allows for divorce and singled persons to adopt children whereas the latter strictly prohibits the same. It can be inferred from the above that the child born out of surrogacy needs more care, protection and affection than a child adopted which is unreasonable and based on no evidence. 

The Law Commission Report, as stated above, states that legal custody of the child shall transfer to the local guardian if the foreign party who entered into a surrogacy agreement fails to take the delivery of the surrogate child and the legal guardian can place the child for adoption. Thereby implying that if the child is put for adoption that laws of adoption will prevail, thereby the child will have to be in a home till the time the child is not adopted, therefore is devoid of a family for indeterminable time period as there are already more than 29.6 billion children abandoned and orphaned, which again does not look out for the welfare of the child. 

The act further does not prohibit and fails to impose criminal liabilities on the couple who decide to back put of the agreement on the birth of the child. It allows them to not take the child. In a country like India, where the bias towards having a male son exists this provision aids such discrimination. It also does not provide for a mechanism to check on the condition of the child such as  once born out of surrogacy

Conclusion and suggestions

Based on the above literature, one can say that the law pertaining to surrogacy is present and is legally recognised but the effectiveness of the legislation is doubtful. The Law has various grey and ambiguous areas especially pertaining to the rights of a surrogated child. The law today perceives the surrogate child not as a life but rather an object. It fails to recognise the interests and welfare of the surrogate child. Therefore the author suggests the following:

1. To allow individuals other than married couples to have a surrogate child in the interests of the child.
2. To provide citizenship to the children who are born in India as they provided by the Indian constitution that by virtue of being born in India one acquires Indian citizenship. 
3. To have provisions to allow the surrogate mother of the child to call the surrogate child her own legitimate child if the couple fails to take the child when born rather than place him for adoption. 
4. To extinguish the different criteria between adoption and surrogacy in India.

References

• Araujo, Robert John. (2010). “Natural Law and the Rights of the Family” 1 Int’l. J. Jurisprudence Fam. 197 
• Babb, Barbara A. (1997) “An Interdisciplinary Approach to Family Law Jurisprudence: Application of an Ecological and Therapeutic Perspective,” Indiana Law Journal: 72(3).
• Pal, Arjun. (2015). Child Rights in Surrogacy. Retrieved from, https://www.researchgate.net/publication/337651306_Child_Rights_in_Surrogacy . 
• Wade, J. (2017). “The regulation of surrogacy: a children’s perspective” Child Fam Law Q; 29(2).
• Surrogacy Agreements in India, http://docs.manupatra.in/newsline/articles/Upload/CFC0FA22-6E4C-456D-A920-D069C37A118F.2-b__civil.pdf (last accessed on 31.03.2021)
• Right to Family, https://www.scconline.com/blog/post/2018/04/10/the-emerging-laws-relating-surrogacy-a-procreational-right-for-single-parent-transgenders-and-foreigners/#_ftn12 (last accessed on 31.03.2021)
• Surrogate child’s right, https://www.ohchr.org/EN/Issues/Children/Pages/ChildrenBornSurrogacyArrangements.aspx(last accessed on 31.03.2021)

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