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Cross-Border Surrogacy: Indian State Practice

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Private International Law

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Abstract

Cross-Border surrogacy helps couples, with difficulties of child conception, avail of a medical alternative. The National Commission for Women, India has highlighted the increasing availability of medical services for surrogacy and India’s emergence as a surrogacy market, almost to an unofficial value of US$1 billion. Contemporary legal position on surrogacy, across the world, is diverse. Such diversity presents much challenge to private international law dealing with issues of determination of legal parentage and nationality for the child born. The Hague Conference on Private International Law has been, since 2011, working towards developing legal resources involved in exploring a solution to the issue. This chapter attempts to present the legal structure in India, minimal though it is, affecting cross-border surrogacy arrangements. It also contextualizes the discussion on the cases where children born to foreign citizens through surrogacy were left to face legal battle to determine nationality and parentage.

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Notes

  1. 1.

    ‘Supreme Court asks Centre to bring commercial surrogacy within the ambit of law’, Indian Express, (Oct 15, 2015). http://indianexpress.com/article/india/india-newsindia/supreme-court-asks-centre-to-bring-commercial-surrogacy-within-ambit-of-law/, accessed 19 December 2015.

  2. 2.

    Sunil Prabhu, ‘Big Changes in India’s Surrogacy Rules: Your 10-Point Guide’ (NDTV, 24 August 2016). http://www.ndtv.com/india-news/cabinet-clears-surrogacy-bill-bans-foreigners-from-renting-wombs-1449590.

  3. 3.

    The Assisted Reproductive Technology (Regulation) Bill, 2014, India. http://www.prsindia.org/uploads/media/draft/Draft%20Assisted%20Rproductive%20Technology%20(Regulation)%20Bill,%202014.pdf, accessed 28 November 2015.

    See http://www.dhr.gov.in/latest%20Govt.%20instructions%20on%20ART%20Surrogacy%20Bill.pdf, accessed 28 November 2015.

  4. 4.

    The rough estimates peg the number of surrogates’ birth to more than 3000 in the last decade. See Usha Rengachary Smerdon, ‘Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India,’ (2008) 39 Cumb.L.Rev. 15, 22; Amrita Pande, ‘Transnational Commercial Surrogacy in India: A Gift For Global Sisters?’ (2011) 23 Reprod. Bio. Med, 618.

  5. 5.

    The study by the Confederation of Indian Industry (CII) states the number of foreign intended parents who visited India in 2012 to be around 10000. http://www.thehindu.com/news/cities/Delhi/art-bill-may-close-surrogacy-doors-for-foreigners-unmarried-people/article7793884.ece, accessed 01 December 2015.

  6. 6.

    Jan Balaz v Anand Municipality & Ors (2010) AIR Guj 21.

  7. 7.

    ‘Born in India, Nowhere to Belong’ The Times of India (online edn, 18 September 2009). http://www.timesnow.tv/Born-in-India-no-where-to-belong/articleshow/4334611.cms, accessed 2 January 2016, see Annika Tombleson, ‘Contracting the new Delhi Belly: Responding to the practice of International Surrogacy’ a dissertation submitted to Faculty of Otago. http://www.otago.ac.nz/law/research/journals/otago043937.pdf, accessed 03 August 2016.

  8. 8.

    Ibid.

  9. 9.

    Law Commission of India, Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy, (No. 228 of 2009 para 1.3. See Chandra Smith, Surrogacy and India (2011). http://ssrn.com/abstract=1762401, accessed 03 June 2016.

  10. 10.

    Baby Manji Yamada v Union of India and Another (2008) 13 SCC 518.

  11. 11.

    Claudia Carr, Unlocking Medical Law and Ethics, (Routledge, 2014) 263.

  12. 12.

    Ibid., See Vasanti Fadva, ‘Surrogacy, Issues and Complexities’, in Susan Golombok et al. (eds), Reguating Reproduction, (Cambridge University Press 2015) 126, 164.

  13. 13.

    Ibid., See Jyoti Bhakare, ‘Surrogacy- A Reality Eclipsed by Ethical, Social, Legal Issues-Indian Perspectives’ (2011) 2 IJLJ 80.

  14. 14.

    Examples of altruistic could be as when one sister carries a baby for another purely out of love. Carol Sanger, ‘Developing Markets in Baby-Making: In the Matter of Baby M’, (2007) 30 Harv. J.L & Gender 67, 75; Janet L. Dolgin & Lois L. Shepered, Bio Ethics and the Law, (3rd edn, Aspen, 2013) 69.

  15. 15.

    Katarina Trimmings and Paul Beaumont, ‘General Report on Surrogacy’ in Katarina Trimmings and Paul Beaumont (eds), International Surrogacy Arrangements: Regulation at the International Level (Hart Publishing, 2013) 444.

  16. 16.

    M.L. Dhar, ‘Need to Regulate Indian Surrogacy Industry’. http://pib.nic.in/newsite/efeatures.aspx?relid=72127, accessed 02 January, 2016.

  17. 17.

    Ibid., See also, Anil Malhotra and Ranjit Malhotra ‘All Aboard For the Fertility Express’ (2012) 38 CLB 31.

  18. 18.

    Law Commission (n 9) para 1.7.

  19. 19.

    Ibid.

  20. 20.

    Id.

  21. 21.

    Jwala D. Thapa, ‘The ‘Babies M’: The Relevance Of Baby Manji Yamada V. Union of India (UOI) and In the matter of Baby “M”, (2011) 2 JILS 83, 86.

  22. 22.

    Ethical Issues include questions of depersonalized parenthood, emotional issues of surrogate mother, informed consent, and possible adverse psychological effects on the child; See, Bonnie Steinbock, Legal and Ethical Issues in Human Reproduction (Ashgate 2002) 66; Paula Gerber, Katie O'Byrne, Surrogacy, Law and Human Rights (Routledge 2016); Anu, Kumar P, Inder D, Sharma N. ‘Surrogacy and Women’s Right to health in India: Issues and Perspectives’, 2013(57) IJPH 65.

  23. 23.

    Pikee Saxena, Archana Mishra, and Sonia Malik, ‘Surrogacy: Ethical and Legal Issues’, (2012) 37(4) Indian J Community Med, 211, 213.

  24. 24.

    Alison Bailey, ‘Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy’, (2011) 26(4) Hypatia 715. The author addresses the feminist viewpoints on surrogacy.

  25. 25.

    In a typical surrogacy agreements a separation of genetic, gestational, and social parenthood appears and the consequences of that is difficult to gather. Lori B. Andrews, Between Strangers: Surrogate Mothers, Expectant Fathers, & Brave New Babies, (Harper & Row, 1989) 101; Donald DeMarco, Biotechnology and the Assault on Parenthood, (Ignatius Press, 1991) 75; Sonia Allan, ‘The Surrogate in Commercial Surrogacy: Legal and Ethical Considerations’, in Paula Gerber, Katie O’Byrne (eds) Surrogacy, Law and Human Rights (Routledge 2016).

  26. 26.

    Skinner v Oklahoma, (1942) 316 U.S. 535. Court held that laws permitting the compulsory sterilization of criminals are unconstitutional if the sterilization law treats similar crimes differently.

  27. 27.

    Roe v Wade (1973) 410 U.S. 113.

  28. 28.

    John. A. Robertson, Children Of Choice: Freedom and the New Reproductive Technologies (Princeton University Press, 1994) 136.

  29. 29.

    Constitution of India 1950, Part III—Fundamental Rights.

  30. 30.

    Ibid., Article 21 Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

  31. 31.

    R. Rajgopal v State of Tamil Nadu (1994) 632, Court held (1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a ‘right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters.

  32. 32.

    Olga Tellis v Bombay Municipal Corporation, (1986) AIR SC 180, a case concerning the right of pavement dwellers, court opined that the right to livelihood is born out of the right to life.

  33. 33.

    Law Commission (n 9) para 1.9.

  34. 34.

    Ibid., Apoorva Mishra, ‘Surrogacy Transaction – A Perspective on the Constitutional and Contractual Aspects (2015) 3(1) NLUJ LRev 134, 138. http://www.nlujodhpur.ac.in/downloads/lawreview/7.pdf, accessed 02 March 2016.

  35. 35.

    Ibid.

  36. 36.

    A.M. Capron, M.J. Radin, ‘Choosing family Law over Contract Law as a Paradigm for Surrogate Motherhood’ in Lawrence O. Gostin (eds) Surrogate Motherhood: Politics and Privacy (Indiana University Press, 1990) 59.

  37. 37.

    Judiciary has repeatedly advised on the procedure established by law being fair. See, Manor Mate, ‘The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases’, (2010) 28 BJIL 216, 247. http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1381&context=bjil, accessed 03 March 2016.

  38. 38.

    Usha Rengachary Smerdon, ‘India’ in Katarina Trimmings and Paul Beaumont (eds), International Surrogacy Arrangements: Regulation at the International Level (Hart publishing, 2013) 187; The Constitution of India 1950 Article 23(1).

  39. 39.

    (n 3) Section 2 (Zs).

  40. 40.

    Ibid., Section 60(1).

  41. 41.

    The Law relating to contracts is contained in Indian Contracts Act 1872; See, Jennifer Rimm, ‘Booming Baby Business: Regulating Commercial Surrogacy in India’ (2014) 30 J Int’l L 1429.

  42. 42.

    Ibid., Section 10 “All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents; See Apoorva Mishra, (n 33) 134.

  43. 43.

    Ibid., Section 23 The consideration or object of an agreement is lawful, unless—It is forbidden by law; or is of such nature that, if permitted it would defeat the provisions of any law or is fraudulent; of involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

  44. 44.

    Adoption under Indian law is governed differently for different religious groups. Adoption is not permitted for according to the personal laws of Muslims and Christians Hindu Adoption and Maintenance Act 1956, consolidates the law relating to adoption practiced among Hindus. Section 17(1) of the Act prohibits monetary considerations in adoption.

  45. 45.

    Some scholars point out that surrogacy agreement relinquishing all the surrogate’s rights is legally binding and enforceable. Charles P. Kindregan, Danielle White, ‘International Fertility Tourism: The Potential for Stateless Children in Cross-Border Commercial Surrogacy Arrangements’, (2013) 36 Suffolk Transnat’l L Rev. 527.

  46. 46.

    Justice B.S. Chauhan, ‘Law, Morality & Surrogacy- with Special Reference to Assisted Reproductive Technology’ (2012) 3(4) Nyaya Deep 3, 4.

  47. 47.

    Jerry Menikoff, Law and Bioethics: An Introduction, (Georgetown University Press 2002) 88.

  48. 48.

    Jan Balaz (n 6).

  49. 49.

    Law Commission (n 9).

  50. 50.

    Id, 22 para 3.5.

  51. 51.

    CMV Clarkson, Jonathan Hill, The Conflict of Laws, (4th edn, Oxford University Press, 2006) 1.

  52. 52.

    Ibid.

  53. 53.

    HCCH, Conclusion and Recommendations adopted by the Council on General Affairs and Policy of the Conference (5–7 April 2011). http://www.hcch.net/upload/wop/genaff_concl2011e.pdf, accessed 01 March 2016.

  54. 54.

    Report of the February 2016 Meeting of the Experts Group on Parentage/Surrogacy, Preliminary Document No 3 of February 2016 for the attention of the Council of March 2016 on General Affairs and Policy of the Conference, available https://assets.hcch.net/docs/f92c95b5-4364-4461-bb04-2382e3c0d50d.pdf, accessed 03 February 2016. Indian participation was also recorded.

  55. 55.

    Evidence Act 1872, consolidates the rules governing admissibility of evidence in the Indian courts of law.

  56. 56.

    Avtar Singh, Principles of the law of Evidence (Central law Publications, 2013); Section 112 of Indian Evidence Act 112. Birth during marriage, conclusive proof of legitimacy The fact that any person was born during the continuance of a valid marriage between his mother and man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the parties to the marriage had no access to each other at any time when he could have been begotten.

  57. 57.

    ART Bill (n 3) Section 60(5) Surrogate mother shall be an ever married Indian woman with minimum twenty three years of age and maximum thirty five years of age and shall have at least one live child of her own with minimum age of three years.

  58. 58.

    Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) article 5; United Nations Convention on the Rights of the Child (adopted 20 November 1989 UNGA Res 44/25 (UNCRC) article 7.

  59. 59.

    Citizenship Act 1955, India, Citizen by birth (Sec. 3) Every person born in India On or after the 26th January, 1950, but before 1st July, 1987, on or after the 1st day of July, 1987 (but before 2nd Dec. 2004), either of whose parents is a citizen of India at the time of his birth; On or after 3rd December, 2004 where–(a) Both of his parents are citizens of India; or (b) One of his parents is a citizen of India and the other is not an illegal migrant at the time of birth shall be a citizen of India by birth. A person shall not be a citizen of India by birth if at the time of his birth—(a) his father possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and is not a citizen of India; or (b) his father is an enemy alien and the birth occurs in a place then under occupation by the enemy.

  60. 60.

    Ethical Guidelines for Biomedical Research on Human Subjects, ICMR, 2000. http://icmr.nic.in/ethical_guidelines.pdf, accessed 03 February 2016.

  61. 61.

    Ibid.

  62. 62.

    Id.

  63. 63.

    Id; In India Medical Termination of Pregnancy Act 1971 regulates procedures of abortion. An abortion can be performed before 12 weeks of pregnancy; t abortion could be performed up to 20th week with the consent of two medical practitioners. Abortion is permitted for reasons including danger to woman’s physical or mental health, substantial risk of physical or mental disability to foetus, pregnancy resulting from sexual assault, threat to socio economic conditions.

  64. 64.

    ICMR National Academy of Medical Sciences (India). National guidelines for accreditation, supervision and regulation of ART clinics in India. New Delhi: Ministry of health and family welfare, Government of India; 2005.

  65. 65.

    Ibid., Section 3.10.2.

  66. 66.

    Id, Sec 3.5.4.

  67. 67.

    This provision makes it very much clear that the intended parents only would be the legal parents of the child with all the attendance rights, parental responsibility etc.

  68. 68.

    Ibid., Sec 3.5.5.

  69. 69.

    Id, Sec 3(16)(1).

  70. 70.

    Id, Sec 3.16.1.

  71. 71.

    Ibid., Sec 3.5.4.

  72. 72.

    Ibid., Sec 3.10.

  73. 73.

    The Juvenile Justice (Care and Protection of Children) Act, 2000 is the fundamental law for juvenile justice in India. The Act provides for a special approach towards the treatment, punishment of juvenile delinquency and adequate rehabilitation.

  74. 74.

    Akhileshwar Pathak, ‘The Surrogacy Law Conundrum’ (2016) Indian Institute of Management, Ahmedabad WPS. http://www.iimahd.ernet.in/assets/snippets/workingpaperpdf/1717570592016-01-01.pdf, accessed 03 March 2016; The Juvenile Justice (Care and Protection of Children) Act, 2015 repealed the Juvenile Justice (Care and Protection of Children) Act, 2000. The adoption process was streamlined. Central Adoption Resource Authority (CARA) is given the responsibility to act as a nodal agency to perform its function. Separate chapter (VIII) on Adoption provides for detailed provisions relating to adoption. Processes have been streamlined with timelines for both in-country and inter-country adoption including declaring a child legally free for adoption. http://pib.nic.in/newsite/PrintRelease.aspx?relid=134513.

  75. 75.

    http://www.surrogacylawsindia.com/faq.php?id=%2010&menu_id=73, accessed 10 January 2016. See Guidelines Governing Adoption of Children, 2015, Ministry of Women and Child Development, Section 10 Selection of a child by the prospective adoptive parents.

    (1) The seniority of the prospective adoptive parents shall be from the date of registration in the Child Adoption Resource Information and Guidance System. (2) On the basis of seniority, the prospective adoptive parents shall be given an opportunity to view the photographs, child study report and medical examination report up to six children, in their preference category if any, in one or more specialised adoption agencies through the Child Adoption Resource Information and Guidance System. (3) After viewing the photographs, child study report and medical examination report of the child or children, the prospective adoptive parents may reserve one child within a period of forty eight hours for possible adoption and the rest of the children would be released through Child Adoption Resource Information and Guidance System for other prospective adoptive parents in the waiting list. (4) The specialised adoption agency will get the details of the prospective adoptive parents referred from the Child Adoption Resource Information and Guidance System site and fix appointment with the prospective adoptive parents to assess the suitability of the prospective adoptive parents by an Adoption Committee, consisting of its adoption in charge or social worker, pediatrician or visiting doctor and one official from the District Child Protection Unit. (5) The specialised adoption agency shall also organise a meeting of the prospective adoptive parents with the child. (6) The entire process of matching shall be completed within a maximum period of fifteen days from the date of reserving the child. http://www.wcd.nic.in/sites/default/files/adoption%20guidelines2015_1.pdf, accessed 03 June 2016.

  76. 76.

    Guardians and Wards Act 1890, India Personal Laws of Muslim and Christians do not recognize adoption. The people belonging to such faiths can only take the child in Guardianship under the provisions of Guardian ship and Wards Act 1890. The statue does not deal with adoption but deals with guardian ship. The process makes the child a ward and child does not have automatic inheritance rights. Debaditya Roy, ‘Adoption under Juvenile Justice Act: A Clarion Call to Secularism’. http://www.legalserviceindia.com/article/l327-Adoption-under-Juvenile-Justice-Act.html, accessed 12 January 2016.

  77. 77.

    ICMR (Guidelines) (n 63) Se 3.10.5.

  78. 78.

    Ibid., Sec 3.10.8.

  79. 79.

    Id, Sec 3.5.4.

  80. 80.

    The Assisted Reproductive Technology (Regulation) Bill 2010 Form U 1st installment which will not be less than 75% of the total amount, of Rs…………….. at the time of embryo transfer. 2nd installment of Rs………………. at ………………. months after the embryo transfer, if the pregnancy is established. 3rd installment of Rs…………. at the time of handing over the child to the patient in the presence of two witnesses.

  81. 81.

    Ibid. Sec, s 3.5.5.

  82. 82.

    Jan Balaz (n 47).

  83. 83.

    The Assisted Reproductive Technology (Regulation) Bill 2010 The ART Bill). Sec 19 Further, the party seeking the surrogacy must ensure and establish to the assisted reproductive technology clinic through proper documentation (a letter from either the embassy of the Country in India or from the foreign ministry of the Country, clearly and unambiguously stating that (a) the country permits surrogacy, and (b) the child born through surrogacy in India, will be permitted entry in the Country as a biological child of the commissioning couple/individual).

  84. 84.

    ART BILL 2014 (n 3) Sec 3(3), 17(1) & 22.

  85. 85.

    Ibid., Sec 36.

  86. 86.

    Id, Ch 1.

  87. 87.

    “Surrogacy bill gets the Cabinet nod”, The Hindu, August 31, 2016.

  88. 88.

    Ibid., Sec 60 (1).

  89. 89.

    Id, Sec 60 (2).

  90. 90.

    Id, Sec 60(7).

  91. 91.

    Id, Sec 60 (4).

  92. 92.

    NDTV (n 2).

  93. 93.

    The earlier Draft bill 2010 allowed single parents; married and unmarried couple can also have children using a surrogate mother. Article 32(1) bill defines couple as two persons living together and having sexual relationships which is legal in India. This makes it doubtful whether gays and lesbians can engage in surrogacy. It should be noted that Naz Foundation v. Union Of India, a public interest Litigation was filed in the Delhi High Court challenging the constitutionality of Section 377 of the India Penal Code, which makes it illegal to engage in any “unnatural” sexual act, defined as sex other than heterosexual intercourse. The Court found in favour of the petitioner and held that Section 377 was unconstitutional. On Appeal Supreme court of India held for retention of Section 377 IPC, which prohibits unnatural sex even between consenting adults in private on the ground of public morality.

  94. 94.

    Ibid., Sec 60(21)(a)(i–ii).

  95. 95.

    Id, Sec 60(11)(a) The earlier Draft bill 2010s 34(7) had only put certain restrictions on foreigners seeking surrogacy. All foreigners seeking infertility treatment in India will first have to register with their embassy. The notarized statement will then be handed over to the treating doctor. The foreign couple will also state whom the child should be entrusted to in case of an eventuality such as a genetic parent’s death.

  96. 96.

    Id, Sec 60(11)(a) Surrogacy for foreigners in India shall not be allowed but surrogacy shall be permissible to Overseas Citizen of India (OCIs), People of Indian Origin (PIOs), Non Resident Indians (NRIs) and foreigner married to an Indian citizen.

  97. 97.

    Ibid., Sec 60(12) A foreigner married to an Indian citizen shall have to come on a ‘Medical Visa for surrogacy (MED-S)’ when they come to India for commissioning surrogacy;.

  98. 98.

    id, Sec 60(21)(a)(1)&(11) The requirements pertains to a subsisting marriage and the medical inability to conceive.

  99. 99.

    Id, Sec 60(21)(a)(III).

  100. 100.

    (n 87).

  101. 101.

    Id, Sec, 60(21(a)(1V).

  102. 102.

    Id, Sec, 60(11)(b).

  103. 103.

    Id, Sec 6017(b).

  104. 104.

    Id, Sec 60(21)(b).

  105. 105.

    Id, Sec 60(21)(c)(i).

  106. 106.

    Id, Sec 21(ii).

  107. 107.

    Ibid., Sec 60(21)(c)(d).

  108. 108.

    Id, Sec 60(21)(c)(1)(g).

  109. 109.

    Id Section (25) Only Indian citizens shall have a right to act as a surrogate, and no assisted reproductive technology bank or assisted reproductive technology clinic shall receive or send an Indian woman for surrogacy abroad.

  110. 110.

    Id, Sec (29) In case of death of surrogate mother after the conception is established and till she is declared free from all diseases and disorders resulting because of pregnancy, an appropriate compensation should be given to the family of surrogate in addition to the amount fixed at the time of agreement for her services as surrogate.

  111. 111.

    Ibid., Sec 60(19)(b).

  112. 112.

    Id, Sec 60(5).

  113. 113.

    Id, Sec 60(5)(a) The earlier draft ART bill 2010 Section 34(5), A woman could be a surrogate for five live births which was reduced under the current Bill.

  114. 114.

    ART Bill 2014 (n 3) Sec 60(5)(b).

  115. 115.

    Ibid., Sec 31.

  116. 116.

    (n 87).

  117. 117.

    See Delhi Transport Corporation D.T.C v Mazdoor Congress and Others, AIR 1991 SC 101, M.J. Sivani & Ors. v State of Karnataka & Ors, (1995)6 SCC 289

    In Nov 2015 a group of surrogate mothers has approached the Supreme Court against Government move to ban foreigners from availing surrogacy as it violate their right o livelihood.

  118. 118.

    The ART Bill, 2014, 61(1) The new Bill only permits married couple to adopt the method of surrogacy which was not the case under earlier versions of ART bill. Art Bill 2010 provided that a child born to an un married couple or single parent will be deemed to be the legitimate child of those parents respectively Section 35(2) &35(3).

  119. 119.

    Ibid., Sec 61(3).

  120. 120.

    Id, Sec 61(6).

  121. 121.

    Id, Sec 58(3).

  122. 122.

    (n 87).

  123. 123.

    ART BILL 2014, (n 3) Section 61(7).

  124. 124.

    Guidelines for Commissioning of Surrogacy in India

    “With effect from 3rd November, 2015, the Ministry of Home Affairs vide its Circular No. 25022/74/2011-F.I (Vol.III) dated 3rd November, 2015 has conveyed WITHDRAWAL of granting Medical Visa to Foreign Nationals intending to visit India for commissioning of Surrogacy and the provisions applicable to OCI/PIO cardholders hence forth. As such,

    1. (i)

      No Visa will be issued by any Indian Mission/Post to foreign nationals intending to visit India for commissioning surrogacy.

    2. (ii)

      No permission will be granted by Foreigners Regional Registration Officers (FRROs)/Foreigners Registration Officers (FROs) to Overseas Citizen of India (OCI) cardholders to commission surrogacy in India.” http://www.cgisf.org/page/display/291/26, accessed 2 February 2016.

  125. 125.

    In 2012 A medical surrogacy VISA for surrogacy arrangement could be granted on the fulfillment of the following conditions:

    1. (a)

      The foreign couple are duly married and a subsistence marriage for two years.

    2. (b)

      A letter from the Embassy/ministry of the foreign country should state that the country recognizes surrogacy and the child/children born will be permitted entry into their country as a biological child of the couple commissioning surrogacy.

    3. (c)

      The treatment should be done only at one of the registered ART clinics recognized by ICMR.  (The list of such clinics will be shared with MEA from time to time)

    4. (d)

      The couple should produce a duly notarized agreement between the applicant couple and the prospective Indian surrogate mother. http://mha1.nic.in/pdfs/Surrogacy-111013.pdf, accessed 03 March 2016. See also Anil Malhotra, Surrogacy in India: A Law in the Making, (Universal law Publishers, 2013).

  126. 126.

    Bindu Shajan Persppadan, A setback for surrogacy in India? November 29, 2015, The Hindu, http://www.thehindu.com/opinion/op-ed/a-setback-for-surrogacy-in-india/article7927730.ece, accessed March 2016.

  127. 127.

    (n 47).

  128. 128.

    Registration of Births & Deaths is mandatory according to the provisions of registration of Births & Deaths Act, 1969. It is mandatory register every birth/stillbirth and death to the concerned department within 21 days of its occurrence. The Government accordingly has put in place and codified system for registration of Birth, with the Registrar General at the Centre and the Chief registrars in the States, running through district registrars to the village and town registrars at the local level.

  129. 129.

    http://blog.indiansurrogacylaw.com/gujarat-high-court-rules-on-surrogacy-case/, accessed 02 January 2016.

  130. 130.

    (n 47).

  131. 131.

    Ibid.

  132. 132.

    Id.

  133. 133.

    Id.

  134. 134.

    G R Hari, ‘Jan Balaz Update’, Web Blog of Indian Surrogacy Law Center. http://blog.indiansurrogacylaw.com/german-couple-case-surrogacy-india/, accessed 4 January 2016.

  135. 135.

    Usha Rengachary Smerdon, (n 38) 233.

  136. 136.

    Ibid. 27.

  137. 137.

    Hari Ramasubramanian ‘German Couple All Set to Take Twins to Homeland’ India Surrogacy Law. http://blog.indiansurrogacylaw.com/tag/jan-balaz/, accessed 04 January 2016; See generally, Marit Melhuus, Problems of Conception: Issues of Law, Biotechnology, Individuals and Kinship, (Berghahn Books, 2012), 84.

  138. 138.

    Baby Manji Yamada (n 10).

  139. 139.

    Ibid.

  140. 140.

    Id.

  141. 141.

    Id.

  142. 142.

    Mark Henaghan, ‘International Surrogacy Trends: How Family Law is Coping’ (2013) Australian Journal of Adoption 1, 6. http://www.nla.gov.au/openpublish/index.php/aja/article/view/3188/3713, accessed 04 March 2016.

  143. 143.

    Ibid.

  144. 144.

    Id.

  145. 145.

    Id.

  146. 146.

    Stellina Jolly, ‘Surrogacy and Family Ties: A Comparative Analysis of Indian and Japanese Legal frame work’ (2010) 2 University of Legal Studies Journal, 299.

  147. 147.

    Ibid.

  148. 148.

    Mark Henaghan (n141).

  149. 149.

    Ibid.

  150. 150.

    Zoe MeleoErwin, Barbara Katz Rothman, ‘Choice and justice; Motherhood in a Global Context’ in Lorna Davies, Rea Daellenbach, Mary Kensington (eds) Sustainability, Midwifery and Birth (Routledge, 2010) 45.

  151. 151.

    Mumbai: Wait gets longer, docs upset in Israeli twins case. http://www.ndtv.com/cities/mumbai-wait-gets-longer-docs-upset-in-israeli-twins-case-417582, accessed 24 February 2016.

  152. 152.

    The Israel High Court on 11-03-2016 orders Israel to recognize gay adoption of child born through surrogacy. http://www.jpost.com/National-News/High-Court-orders-Israel-to-recognize-gay-adoption-of-child-born-through-surrogacy-339655, accessed 3 February 2016.

  153. 153.

    Sharon Shakargy, Israel, in Katarina Trimmings, Paul Beaumont, (eds) International Surrogacy Arrangements: Legal Regulation at the International Level, 1st, (Hart publishing, Oxford, 2013) 244.

  154. 154.

    Ibid.

  155. 155.

    Anindita Majumdar, ‘The Rheotoric of the Womb, The Representation of Surrogacy in India’s Popular Mass Media’, in Sayantani Das Gupta, Shamita Das Dasgupta (ed), Globalization and Transnational Surrogacy in India: Outsourcing Life (Lexington Books 2014) 114.

  156. 156.

    Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, opened for signature May 29, 1993, S. TREATY DOC. No. 105-51, 1870 U.N.T.S. 167.

  157. 157.

    India is party to the Hague Adoption Convention. India’s Central Authority is Central Adoption Resource Authority - Ministry of Women and Child Development.

  158. 158.

    June 2010 meeting of a Hague Special Commission on surrogacy, this Convention was rejected as an appropriate regulatory instrument for international surrogacy; See also Seema Mohapatra, Adopting an International Convention on Surrogacy-A lesson from inter Country adoption Feb 7 2016, Symposium: Cross Border Health Care: The Movement of Patients, Providers and Diseases, Loyola University School of Law-Chicago, 2015. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2617896, accessed 3 January 2016; Carolyn McLeod and Andrew Botterell, ‘A Hague convention on contract pregnancy (or “surrogacy”): Avoiding ethical inconsistencies with the Convention on Adoption’ (2014) 7(2) Special Issue on Transnational Reproductive Travel International Journal of Feminist Approaches to Bioethics 219–235.

  159. 159.

    Report of the Experts Group Hague (n 54) para 4. India is an active participant in the Hague surrogacy project.

  160. 160.

    Ibid.

  161. 161.

    Id.

  162. 162.

    Id.

  163. 163.

    Maya Unnithan, ‘Thinking through Surrogacy legislation in India, Reflections on Relational Consent and the Rights of Infertile Women’, (2013) 1(3) Journal of Legal Anthropology 287.

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    Stellina Jolly

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    Stellina Jolly

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Jolly, S. (2017). Cross-Border Surrogacy: Indian State Practice. In: Garimella, S., Jolly, S. (eds) Private International Law. Springer, Singapore. https://doi.org/10.1007/978-981-10-3458-9_9

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