Ignoring best practices

A Bill proposed in 2014 was meant to cover various issues arising from all assisted reproductive technologies. Limiting the 2016 Bill to surrogacy alone is myopic

The Cabinet has approved the Surrogacy (Regulation) Bill, 2016, which will soon be introduced in Parliament. Assisted reproductive technologies (ART) have impacted lives for some time now. However, due to a regulatory vacuum, and existing laws conflicting with situations created by ART, or laws not contemplating these situations, the rights and interests of adults and children in ART are in disarray. There was an ART (Regulation) Bill proposed in 2014 that was meant to cover similar issues arising from all ART. Limiting the 2016 Bill to the regulation of surrogacy alone is myopic.

ART, as the name indicates, covers a range of technologies that helps persons become parents (“commissioning parents”). Surrogacy is only one such process. In surrogacy, the commissioning parents may seek donors for sperms or ova or both, which are fertilised in ART clinics. Either the commissioning mother or a surrogate mother carries the resulting embryo in her body till delivery.

The question of parentage

Important questions arise here. The child could have as many as four sets of claimants to parenthood — the commissioning parents, each of the donors, and the surrogate mother. Who are the parents then? What rights do the children have against each of them? What is the matrix of the rights of these adults?

Until now, contracts and consents between the commissioning parents and the donors/surrogates tried to resolve these questions. However, the answers to these issues aren’t straightforward. Take, for instance, the rights of the children born through surrogacy. Personal and property laws categorise children and their rights in terms of legitimate, illegitimate and adopted children. The rights of children born through surrogacy, if not addressed, are likely to fall outside these categories, or at best be treated as illegitimate children. The Indian Evidence Act, 1872, assumes that children are legitimate only if they are born within 280 days of the divorce of the parents, or the death of the father. ART includes usage of frozen sperm, and will not meet traditional gestation periods for conception and pregnancy that this law contemplates. This must be acknowledged and the problem tackled.

Parentage is an important issue for its own sake; it also impacts the rights of the children to maintenance, to inherit family property, and so on. There are different approaches to the question of parentage. The ART Bill had provided for parentage to be with the commissioning parents. Laws in some other countries give the surrogate mother parentage over the child. Commissioning parents become parents through parentage/adoption orders passed by the court. With the latter approach, the law accommodates the rights of the surrogate mother to retain her parentage. In either case, the law will override the expectations of one set of adults and lend certainty to the parentage of the child.

Identity of the child

A related issue is the right of identity of the child. Children born through surrogacy are entitled to know their personal history at an appropriate age. With this knowledge comes the question of the children wanting to know their genetic parents.

This need has conflicted with the right of the donors and surrogates to anonymity. National guidelines issued by the Indian Council for Medical Research (ICMR) in 2005 for ART clinics direct them to keep two records of the donors/surrogates — information on their personal identity and their medical history. Medical history records are accessible to the child (on majority) and to her parents, in case of a medical emergency involving the child. However, personal identity is to be kept confidential at all times, unless directed by a court. Children born through surrogacy may sense a gap in their identity, and if they wish to know who their genetic parents are, the policy should support this need.

Additional safeguards are important from the child and the surrogate mother’s point of view — medical insurance for issues that could arise in the pregnancy or later, and insurance to cover the child’s upbringing, if she is abandoned by the legal parent.

Some of these issues have come up, with the courts issuing orders on the rights of children and the participating adults, but they are not always in harmony. For instance, the Delhi and Madras High Courts have said that a commissioning mother is entitled to maternity leave after the child’s birth, while the Kerala High Court has disagreed.

The regulation of ART clinics and banks (which register and store donor information/sperms and ova) are critical. The ICMR guidelines of 2005, besides lacking enforceability, are not comprehensive. For instance, they do not set out accountability parameters within these agencies, or adequately address the serious issues of sex selection through ART, or have any obligations to provide legal and psychological counselling. The Bill should cover the layered aspects of these rights and take into account the spectrum of laws and prejudices that will come into play, including the rampant sex selection that is practised in India against girl children.

Lessons to learn

The Assisted Reproductive Treatment Act, 2008, in Victoria, Australia, is regarded as a progressive law for ART. It recognises the identity rights of the child, overriding the confidentiality right of the donor. Parentage is with the surrogate mother. The commissioning parents are required to get a parentage order from the court with the consent of the surrogate. The law sets out extensive obligations for the authority administering the Act, including psychological and legal counselling for the adults and the child. The authorities should verify that the adults seeking ART and the proposed surrogates have not been convicted for violent or sexual offences, or had children taken out of their care. Importantly, single persons, unmarried and same-sex couples can be parents through surrogacy.

Chitra Narayan is a lawyer and mediator practising in Chennai.

Surrogate children may want to know their genetic parents, but this conflicts with the right of the donors and surrogates to anonymity