“Everyone has the right to a nationality”

Ending Statelessness arising out of Surrogacy in India: The Latest Developments

21 April 2017 | Sanoj Rajan, Dean of School of Law Ansal, University, India
#StatelessKids - Every child has the right to a nationality

Studies estimate that surrogate mothers have given birth to more than 25,000 children in India, and about half of these children now live in the West. There were 3000-6000 cases of commercial surrogacy births in India alone in the last decade, fuelled by medical tourism in India which is worth around $6 billion and 450,000 tourists a year. Many children born of commercial surrogacy, particularly when the commissioning parents are foreigners, have  ended up stateless or have battled years to establish their nationalities. Cases like The Volden Case, Baby Manji’s case and Jan Balaz case involving foreigners decided by Indian courts show the intensity of statelessness issues among surrogate born children.

These alarming statistics indicate the need for imminent regulation on surrogacy, especially international surrogacy, in order to prevent statelessness among children born through surrogacy in India. However, so far Indian legal norms are not very proactive in looking at the issue from a statelessness angle, though an attempt has been made to regulate surrogacy as a medical procedure and industry through the current National Guidelines for Accreditation, Supervision, and Regulation of ART Clinics in India. The latest in the government’s effort to legislate on this issue is the Surrogacy (Regulation) Bill 2016, which totally prohibits commercial surrogacy in India and thereby in effect prohibiting statelessness arising out of surrogacy arrangements. As of today, surrogacy arrangements in India are regulated by ART Guidelines and the decision of the Supreme Court in Baby Manji’s case, because the Bill mentioned above has not yet been passed by the Parliament and notified as a law.

Statelessness issues arise in international surrogacy arrangements when the commissioning parents from a country where commercial surrogacy is prohibited commission surrogacy in another country. The laws relating to parentage and citizenship in such countries usually exclude the commissioning parents from becoming the legal parents of the child born in a foreign country via surrogacy. If the surrogate mother’s country also excludes her as the parent because of the prevailing surrogacy validating laws, the child will end up stateless. There are also other reasons for surrogacy-related statelessness, for example when commissioning parents refuse to take the child back to their country because of genetic mix-up, the divorce of the commissioning parents etc. A detailed discussion on various reasons leading to statelessness among surrogate children is available in the 2017 World Statelessness Report.

Earlier Attempts to Resolve Statelessness arising out of Commercial Surrogacy under Indian Legal System

The first important step in regulating surrogacy in India, including commercial surrogacy, was through the National Guideline for Accreditation, Supervision and Regulation of ART Clinics in India (ART Guideline), 2005. The ART Guideline is conceived originally for legalizing and regulating Artificial Reproductive Technologies and the clinics that practice it. Hence it doesn't have any express provisions to prevent or restrict statelessness arising out of surrogacy arrangements. Moreover, the ART Guideline legalized commercial surrogacy, which has increased the risk of statelessness among surrogate children. This was followed by the decision of Supreme Court of India in Baby Manji’s case declaring commercial surrogacy to be legal in India. These developments have created many instances where children born out of commercial surrogacy in India are placed in a statelessness limbo. The decision of the courts in various cases and the Law Commission of India in its 228th report have urged the government of India to take legislative action to end statelessness among surrogate born children in India.

The first attempt by the government of India was the Assisted Reproductive Technology Bill, 2008, which was unfortunately not passed by the Parliament. The 2008 Bill was replaced by Assisted Reproductive Technology (Regulation), Bill, 2010 and was later revised in 2014, which is still pending before the Parliament. The 2014 ART Bill brought in certain laws to control commercial surrogacy and thereby prevent statelessness arising out of international surrogacy arrangements. The ART Bill 2014 is comprehensive in addressing the statelessness issues compared to the draft Bill of 2010. The Bill provides for the establishment of regulatory bodies for the safe and ethical practice of assisted reproductive technology services and matters connected with the nationality for the child born out of surrogacy arrangements.

It removes the confusion regarding the nationality of a child born out of surrogacy by affording the commissioning couples nationality to the child. In the case of confusion or abandonment of the child by the commissioning couples, the Bill provides for Indian nationality as a backup arrangement. Another remarkable feature of this Bill is the total prohibition of surrogacy arrangements for foreigners except for People of Indian Origin who have an Overseas Citizen of India (OCI), Non-Resident Indian (NRI), People of Indian Origin (PIO) cards or foreigners married to Indian citizens. Also, only married couples or a couple in a legal relationship alone can enter into surrogacy arrangements. Further, it makes it mandatory for all ART clinics and banks to register under the Act and prescribes penalties for any violations, thus regularizing the industry which will help prevent illegal surrogacy arrangements leading to statelessness. However, the Bill provides for compensation for surrogacy, hence legalizes commercial surrogacy.

The Surrogacy (Regulation) Bill 2016

The latest Surrogacy (Regulation) Bill 2016, indends to prohibits all commercial surrogacy activities in India including conducting, offering, undertaking, promoting or associating with commercial surrogacy in any form. It further underlines that surrogacy can be undertaken only for altruistic reasons and not for commercial purposes. Only a close relative of the intending couple can be the surrogate mother, and such surrogate can be a surrogate mother only once in their lifetime. Further, the intending couples have to be Indian citizens, thereby prohibiting international commercial surrogacy in any circumstances unlike the ART Bill 2014.

The most remarkable feature of the Surrogacy (Regulation) Bill 2016 are the provisions concerning the protection of the rights of the surrogate child is his/her right to parentage and citizenship. Chapter III includes provisions for the intending couple along with the surrogate mother to get an order of custody of the child to be born passed by a court of the Magistrate in advance, negating any chance for future denial of its parentage and later citizenship. It further prohibits the  intending couple from abandoning the child born out of a surrogacy procedure within India or outside, for any reason whatsoever, including but not limited to any genetic defect, birth defect, any other medical condition, defects developing subsequently, sex of the child or conception of more than one baby and the like. It further provides that any child born out of surrogacy procedure shall be deemed to be a biological child of the intending couple. The said child shall be entitled to all the rights and privileges available to a natural child under any law for the time being in force. This very well includes the citizenship rights of the children from their parents, including intended parents.

Another remarkable development under the Surrogacy (Regulation) Act 2016 is making the practice of commercial surrogacy a punishable offence. It also makes abandonment, exploitation, and disownment of children born out of surrogacy an offence. Likewise, there are separate punishments prescribed for medical practitioners and intended parents for their involvement.

Conclusion

Even though there is no dearth in international norms advocating the prevention of statelessness, this has been insufficiently effective in preventing statelessness arising out of international surrogacy arrangements, as the acquisition of nationality is generally a matter of municipal law. The only way to prevent statelessness resulting from surrogacy is to establish legal regimes at the national level to prevent statelessness for children born out of international surrogacy arrangements. Indian lawmakers' efforts in this regard through the ART Bill 2014 and the Surrogacy (Restriction) Bill, 2016 are commendable. Once passed and notified by the Indian Parliament, the Surrogacy (Restriction) Bill, 2016 will totally prohibit (and prevent) statelessness among children born through surrogacy arrangements. This is a remarkable achievement considering India’s mammoth share in the global commercial surrogacy industry. However, it remains a concern that Bills are yet to be passed by the Parliament and notified. The opposition to the new legislation from different interest groups such hospitals and ART centres are massive, especially because surrogacy in India is a multi-million dollar business. Hence an immediate action from the government in this regard will be highly required.

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