Surrogacy has always attracted a disproportionate amount of media attention, because the idea excites the public imagination. India seems to be in the news since it offers "wombs on hire" . Apparently, many infertile couples seem to be coming to India to have surrogacy treatment, because it's so much cheaper here than in the West. Some activists see red, because they feel this is a form of "reproductive prostitution" - they believe women are being marginalised and reprodution is being treated as a commodity , because money is changing hands.
While I feel surrogacy is a legitimate form of treatment, my major concern that there is no legal protection for the parents in India. The only legal recognition of the child's parentage today is the birth certificate - and it's only the birth mother's name which can appear on this. Today, genetic parentage is not recognised. What this means is that if the birth mother decides not to hand over the baby after birth, there is nothing the infertile couple ( intending parents) or the doctor can do, no matter what legal papers they may have signed, since these have no legal bearing - the contract is just not valid !
Normally, the infertile couple plans to adopt the baby after birth , so they can claim it legally. However, adoption in India is a long and complex procedure - and there is no mechanism for a "directed adoption", which means there is no way the parents can claim the child legally. This means that either they do a "black-market adoption"; or the doctor puts a false name ( not the birth mother's, but the surrogate's) on the birth certificate !
In order to correct this anomaly, the government is now planning to pass a law to regulate this. What worries me is that the law has many loopholes in it. The most worrisome is that effective a "legal blackmarket adoption" channel has now been opened up ! An unscrupulous doctor could handover an unwanted new born baby ( from an unmarried mother, for example) to a rich infertile couple, and claim that it was actually genetically theirs because they had undertaken surrogacy treatment ! Not only would this allow couples to bypass the regular legal adoption channels, it would create an avenue for some crooked doctors to make a lot of quick bucks !
Why isn't anyone else worried ?
, I must congratulate u for bringing up such a subject. This topic of surrogacy fascinates me too. I am a law student, currently in my 4th year. I want to do a project on Surrogacy and the legal implications of it. So, can u help me by providing some useful links? Moreover, I want to know what is the procedure that one has to ensure while going for surrogacy, I mean both the doctor and the patients. The nature of contract, the medical team, the ICMR guidelines, if any. I know about the ART guidelines, but is there anything else.
ReplyDeleteMoreover, I want ur suggestion regarding a comprehensive legal enactment, what it should contain and what it should address.
Looking fwd 2 ur reply. U can mail me @ [email protected]