The Sushma Swaraj-headed group of ministers on the draft surrogacy bill, which proposes to allow only married infertile Indian couples to go in for surrogacy of the altruistic kind, arrived at the decision after examining 18 cases in India and abroad. In all these cases, complications had arisen owing to abandonment of the child, issues regarding the child’s nationality due to surrogacy being banned in the country of the parents, or exploitation of the surrogate mother.
The Department of Health Research had submitted a report documenting 11 cases from across the globe and seven in India. These included a case filed by lawyer Jayashree Wad, a Supreme Court order on which led to the government drafting the surrogacy bill. “All these 18 cases had to take the legal route either in the country or outside,” said an official.
Five of the seven cases from India had foreigners as commissioning parents. These included the Baby Manji case of 2008 in the Supreme Court, in which a Japanese couple refused to accept the surrogate child born in India on the grounds that they were now divorced. In another case, the German government, which doesn’t recognise surrogacy, refused visa to a baby born in Gujarat’s Anand. On the SC’s intervention, the baby was given Indian citizenship with the German parents having to go through an adoption process.
The report also refers to the Baby Dev case where Australian parents, whose firstborn was a boy, came to India for surrogacy but abandoned one of the twins born, a boy, while taking the girl back home with them.
It mentions a similar case of Australian parents abandoning one of twins, Baby Gammy, born in Thailand after he was detected with Down’s Syndrome. It was later discovered the father is a convicted sex offender. In another case, twins born to a Thailand-based surrogate mother were found to have been sexually abused by the Australian father. Thailand has now banned commercial surrogacy for foreign couples. Common among the international cases are examples of battles over children’s nationality due to countries such as England and France, where the commissioning parents hail from, not recognising surrogacy.
“Everyone has been talking about how the draft bill deprives intending parents of their rights. The GoM’s concern was more about the rights of the surrogate mother and especially the child,” said an official.
Sources said the draft bill initially proposed all kinds of altruistic surrogacy be allowed but the GoM added the clause stating that the surrogate mother has to be a ‘close relative’. It also decided to make a few exceptions to the clause that allowed only married infertile couples to have children. The bill now allows surrogacy for parents whose first child is mentally or terminally ill, has genetic disorders such as thalassaemia, sickle-cell anemia, haemophilia or is dead.