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CONSTITUTIONAL VALIDITY OF COMMERCIAL SURROGACY IN INDIA



                                India is considered as a surrogacy capital in the world, due to the low cost in this process when compare to other country. There are more than 3000 surrogacy clinics in India, to serve the people who wish to have a baby through surrogacy.
                      
                      This surrogacy tourism has become more effective after the supreme court of India have legalized the commercial surrogacy in India in baby manji yamada case. But there are no parliamentary laws to regulate the commercial surrogacy in India. However the Indian medical research council have passed the guidelines to regulate commercial surrogacy in India but they are not mandatory.
  

              Let us analyze the guidelines passed by the Indian medical research council:
  • ·          Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
  • ·         A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
  • ·         A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
  • ·         One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
  • ·         Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
  • ·         The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
  • ·         Right to privacy of donor as well as surrogate mother should be protected.
  • ·         Sex-selective surrogacy should be prohibited.
  • ·         Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.
                          
      Let us now analyze the judgments and laws regarding surrogacy in other countries:
·       
  •               Japan has taken a different legal stand in respect of surrogacy. Supreme Court of Japan, on March 23, 2007, denied parenthood to genetic parents since the twin babies were born to a surrogate mother at United States. Interpreting the Civil Code of Japan, the Supreme Court, held a mother who physically gives birth to a child is the legal mother. There is no provision in the Code to recognize the genetic mother as the legal mother. There exists no specific laws in Japan concerning parent-child relationship for artificial insemination, and the mother - and - child relationship will be based on the fact of delivery. The issue of Citizenship status of such an infant is also a burning problem in Japan. The Japan Supreme Court rejected the Japanese commissioning parents bid to register their twins born to a U.S surrogate mother in Japan, on the ground that the law presumes the woman, who gives birth to a child as its mother.


  •          Germany, as law stands today, does not recognize surrogacy agreements. Law also prohibits egg donation and advocates for embryo procreation. Medical practitioners are also prevented from performing artificial insemination or embryo donation, which are all criminal offences. Same seems to be the situation in Sweden, Norway, Italy and so on. But countries like Belgium, Netherlands and Great Britain are little more liberal.


  • ·         Ukraine Surrogacy Laws are very favorable and fully support the individuals reproductive rights. Clause 123 of the Family Code of Ukraine and Order 771 of the Health Ministry of Ukraine regulate surrogacy. Ukraine laws permit commissioned parents to choose the gestational surrogacy, ova, or sperm donation embryo, adoption, programmes for which no permission is required. Legislation also provides for a commercial surrogacy agreement between the parties. Child born legally belongs to the commissioned parents and the surrogate mother cannot keep the child to herself.


  •          California is also accepting the surrogacy agreements, which has no statute directly dealing with surrogacy. Courts generally rely on Uniform Parentage Act to deal with various surrogacy agreements. California Supreme Court in Johnson v. Calvert (1993) 5 CAL 484 held that gestational surrogate has no parental rights to a child born to her since a gestational surrogacy contract is legal and enforceable and the intended mother is the natural mother under the Californian law. In the above case the intended mother donated the egg and a surrogate mother gave birth, in such a case the Court held that the person who intended to procreate should be considered as the natural mother.


  •         In another case decided by the U.S. Court in the year 1998 - Buzzanca v. Buzzanca - 1961 CAL. Appl. 4th 1410 (1998), the Court considered the issue of traditional surrogacy agreements. That was a case where the surrogate mother has been artificially inseminated i.e. a surrogate mother was impregnated by using her ova and anonymous sperm, meaning thereby the intended parents had a genetic link to the child. Court held that when a married couple uses non-genetically related embryo and sperm implanted into a surrogate intended to procreate a child, they are lawful parents of the child.


  •       In another U.S case decided in 1998, In Re Marrijo Moschetta awarded legal parent rights to the intended father and surrogate mother.


  •          In another U.S case considered by the New Jersey Supreme Court, In Re Baby 537 A.2d 1227 (NJ.02/03/1988), gave custody to the natural father of the child, but rights of the adopted mother was denied. Surrogate mother who conceived the child via artificial insemination was granted visitation rights.

Question of constitutional validity of commercial surrogacy in India:
         
            In baby manji yamada case Supreme Court has legalized the commercial surrogacy in India, but my question is that how far that decision is constitutionally valid one.
        
            According to Article 23 of Indian Constitution human trafficking is prohibited and the commercial surrogacy contracts are one and the same which involved in such human trafficking which is constitutionally prohibited. As we go through the above said case trails, we don’t find this question raised by any parties to the dispute or their councils.
          
            It is very sad that the watchdog of constitution has violated the Article 23 of the Indian constitution, so the above decision can be set aside as per the doctrine of per in curium.
         

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