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Commercial surrogacy in India: Wikis

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Commercial surrogacy has been legal in India since 2002.[1]

Also variously called "Commercial surrogacy", "paid surrogacy", "wombs for rent", "outsourced pregnancies" or "baby farms", compensated surrogacy refer to a form of surrogate pregnancy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost involved. This procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions[2]. The procedure involves willing and medically fit surrogate mothers being impregnated in-vitro with the egg and sperm of couples unable to conceive on their own. Commercial surrogacy has been legal in India since 2002 and in many other countries, including the United States. But India is emerging as a leader making it into what can be called a viable industry rather than a rare fertility treatment.

Contents

Legality

Commercial Surrogacy is decided to be legal in India with the Manji's case by the Supreme Court of India. India does not yet have a legislation controlling surrogacy. However, the Indian Council for medical research has given Guidelines in the year 2005 regulating Assisted Reproductive Technology procedures. The Law Commission of India submitted the 228th report on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements.

There are two important cases which was decided by the Indian Courts; the first one being the Manji's case and the second one the case of Jan Balaz decided by the Gujarat High Court. This decision has however gone on appeal to the Supreme Court of India. The case of Jan Balaz Vs. Union of India is still pending before the Supreme Court of India. Mr. Jan Balaz, the petitioner in the case pending before the Supreme Court had submitted before the Supreme Court that he shall be submitting his passports before the Indian Consulate in Berlin. He also agreed that a NGO in Germany shall respond back to India on the status of the children and their welfare. The Union of India responded that India shall make all attempts to have the children sent to Germany. German authorities have also agreed to reconsider the case if approached by the Indian authorities. The case which is fast improving might soon be a happy ending. [3]

Many children born through surrogacy meet problems over the issues of nationality and citizenship. Therefore, it is most important that the Intended Parents do take up legal Counselling before coming to India for surrogacy.

Legal Counseling for Surrogate Mothers

Ethical concerns

There is concern if this practice keeps growing the way it is, it could change from a medical necessity for infertile women to a convenience for the rich with specially the wealthy couples of the West choosing commercial surrogacy over a natural childbirth because of the pain and stress of natural childbirth causing the whole industry to be farmed out.

However high maternal death rate is found in the poorest of the poor section of the population in India who may not get access to proper medical facilities in time or from amongst many who opt not to access them because of superstition and illiteracy. Surrogate mothers in India under commercial surrogacy programs on the other hand usually are carefully chosen, cared for with amongst the best highly advanced medical, nutritional and overall care available in the field anywhere in the world[4] and medical tourism in India is already a flourishing industry. Teams of maids cook and doctors look after the surrogate mothers in the clinics which care for the women during pregnancy and delivery, and counsel them afterward[5].

Citizenship of Children born

In a landmark judgment in a case which had no precedents in the country, the Gujarat State High Court in India conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district. Raising a lot of questions related to surrogacy, the bench observed, “We are primarily concerned with the rights of two newborn, innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. Emotional and legal relationship of the babies with the surrogate mother and the donor of the ova is also of vital importance.” After considering the case laws related to surrogacy of countries like Ukraine, Japan and the USA, the court decided the case at hand by inclining to recognize the surrogate mother as the natural mother of the children. And since the woman is Indian, the children were granted Indian citizenship and passports under the legal provisions[6]. However as India does not allow full fledged dual citizenship[7], the children will have to convert to Overseas Citizenship of India[8] if they are also going to be taking foreign citizenship of their biological parent's country.

However, the operation of the Gujarat High Court has been stayed by the Honorable Supreme Court of India. The case is still pending before the Supreme Court of India. [9]

Also see

References

  1. ^ The Associated Press (2007-12-30). "India's surrogate mother business raises questions of global ethics". Daily News. http://www.nydailynews.com/news/us_world/2007/12/30/2007-12-30_indias_surrogate_mother_business_raises_-2.html?page=0. Retrieved 2008-07-14. 
  2. ^ "India's baby farm". The Sun-Herald. 2008-01-06. http://www.smh.com.au/news/world/indias-baby-farm/2008/01/05/1198950126650.html. Retrieved 2008-01-06. , Indian women carrying babies for well-off buyers, 'Wombs for rent' pleases women and customers, but raises ethical questions; Monday, December 31, 2007; The Associated Press; CBC News; Canadian Broadcasting Corporation, "Business is booming for India commercial surrogacy program" by Associated Press, Dated: Monday, December 31, 2007; The Albuquerque Tribune, NM, USA, Paid surrogacy driven underground in Canada: CBC report; Wednesday, May 2, 2007; CBC News; Canadian Broadcasting Corporation
  3. ^ Extracted from http://blog.indiansurrogacylaw.com
  4. ^ Regulators eye India's surrogacy sector; By Shilpa Kannan; 18 March 2009; India Business Report, BBC World
  5. ^ Indian women carrying babies for well-off buyers, 'Wombs for rent' pleases women and customers, but raises ethical questions; Monday, December 31, 2007; The Associated Press; CBC News; Canadian Broadcasting Corporation
  6. ^ HC confers Indian citizenship on twins fathered through surrogacy; Express News Service; Nov 12, 2009; Ahmedabad; Indian Express Newspaper
  7. ^ OCI just a recognition of Indian roots: Vayalar; by Rema Nagarajan, TNN; 29 September 2006; The Times of India
  8. ^ Overseas Citizenship of India (OCI); Ministry of Home Affairs, Government of India website, Diaspora Services: Overseas Citizenship of India Scheme; The Ministry of Overseas Indian Affairs (MOIA), Government of India website, What is the basic difference between an NRI/PIO/PIO Card Holder and an OCI? Overseas Indian Facilitation Centre, a not for profit public private initiative of Ministry of Overseas Indian Affairs (MOIA) and Confederation of Indian Industry (CII), was launched on 28th May 2007; Official Government of India portal
  9. ^ Extracted from http://blog.indiansurrogacylaw.com/2009/12/updates-jan-balaz-case/
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