Abhishake Sinha and Sayan Chakraborty

With adoption becoming increasingly difficult and greater awareness of surrogacy as an option, many couples, and even individuals who cannot otherwise bear children, are turning to surrogacy to fulfill their dreams of parenthood. The surrogacy industry in India is now estimated to be worth more than US $500 million a year. This article attempts to shed light on the legal framework regarding nationality and citizenship of surrogate babies born in India.

By way of background, surrogacy or surrogate means substitute. In medical terminology, surrogacy describes an arrangement whereby a woman agrees to become pregnant for another individual who either cannot or chooses not to have a biological child. There are two types of surrogacy – traditional and gestational surrogacy. In traditional surrogacy, also known as the straight method, a woman is pregnant with her own biological child, but intends to give the child to another person, such as the biological father and possibly his spouse or partner. Conception of such a child may be through natural insemination or artificial insemination. Artificial insemination can be accomplished using fresh or frozen sperm of either the biological father or a sperm donor via intra-uterine insemination or intra-cervical insemination.

In gestational surrogacy, also known as the host method, a female host (gestational carrier) is implanted with an embryo which is not connected with her and she merely becomes the carrier of the child during the term of the pregnancy. After birth, the gestational carrier delivers the child to the biological mother and/or father or to the adoptive parent(s). This arrangement is sometimes called commercial surrogacy if the gestational carrier receives compensation for carrying and delivering the child. If the gestational carrier receives no compensation apart from only medical expenses for carrying and delivering the child, the arrangement is sometimes referred to as an altruistic surrogacy, which is generally done by a friend of the intended parent(s).

Surrogacy is often chosen because of female infertility or other medical issues which may make pregnancy or delivery risky. On the other hand, even if the intended mother may be fertile and healthy, she may opt for the convenience of someone else undergoing pregnancy, labor, and delivery. Surrogacy is also chosen when the intended parent is a single man or woman wishing to have his/her own biological child.

Surrogacy has become part of the burgeoning medical tourism industry in India, driven primarily by the availability of excellent medical infrastructure and potential surrogates, along with growing international demand. In commercial surrogacy agreements, the surrogate mother enters into an agreement with the commissioning couple or a single parent to bear the burden of pregnancy and child birth. In return she is paid a fee by the commissioning agent. The fee is in the range of US $25,000 to $30,000 in India, about one-third of what it would cost in developed countries such as the US. This has made India a chosen destination for foreign couples who are looking for a cost-effective solution to the problem of infertility; indeed, a whole branch of medical tourism has flourished around surrogate practice. However despite its increasing prevalence, India still does not have legislation governing surrogacy.

The Law Commission of India stressed the need for effective legislation governing surrogacy in its 228th report, calling for regulation of assisted reproductive technology (“ART”) clinics as well as codification of rights and obligations of parties to surrogacy. The Indian Council for Medical Research has submitted a draft Assisted Reproductive Technology (Regulation) Bill and Rules 2008, which confirms the present status and enforceability of surrogacy agreements. The Bill would ensure that surrogacy agreements are treated at par with other contracts and make such agreements subject to the principles of the Indian Contract Act 1872 and certain other laws. The Bill also allows a single person to become a party to a surrogacy arrangement.

In addition, the Bill provides that a child born to a married couple or a single person through the use of ART shall be presumed to be a legitimate child of the couple or the single person, as the case may be. If the commissioning couple separates or gets divorced after entering into a surrogacy arrangement but before the child is born, then the child shall be considered to be the legitimate child of the couple. The Bill further requires that an individual or a couple residing abroad shall appoint a local guardian who will be legally responsible for caring for the surrogate during pregnancy until the child is delivered. In order to ensure that the child is not abandoned after birth by the commissioning parents or parent, the Bill provides that the commissioning parents or parent are legally bound to accept custody of the child even if the child is born with an abnormality. A surrogate mother shall relinquish all parental rights over the child upon its birth, and the birth certificate of a baby born through surrogacy shall bear the name(s) of the genetic parents/parent of the baby. The proposed legislation is, of course, just a bill at this stage. But if the bill is passed and becomes an act, it would bring needed regulation to the practice of surrogacy in India.

Despite the absence of statutory regulation, the Indian judiciary has come to the rescue of parties who have been caught in legal surrogacy complexities. In the case of Baby Manji Yamada vs. Union of India and Another, AIR 2009 SC 84, the biological parents of the baby came to India in 2007 for a surrogacy arrangement. The child was born in Gujarat and was later moved to a hospital in Jaipur, Rajasthan. The birth certificate carried the name of the genetic father, Dr Ikufumi Yamada, who desired custody of the child.

The Supreme Court held that the Commission For Protection of Child Rights Act, 2005 had been enacted to establish a National Commission and State Commissions for protection of child rights and children’s courts to provide speedy trial of offences against children or of violation of child rights, and for matters incidental thereto. It directed the petitioner to move an application before the appropriate forum constituted under the Commission for Protection of Child Rights Act, 2005. Subsequently the Central Government was directed by the Court to issue travel documents to the baby to enable her to travel to Japan.

In the case of Jan Balaz vs. Anand Municipality and Ors, AIR 2010 Guj 21, the question before the High Court of Gujarat was whether a child born in India to a surrogate mother, an Indian national, whose biological father was a foreign national, is a citizen of India by birth. The petitioner, a German national, was the biological father of twins born to a surrogate mother, with the ova being donated by an anonymous donor, using ART at an infertility clinic in Gujarat. After the twins were born, the petitioner sought to register the birth of the children by applying for birth certificates pursuant to the Registration of Birth and Deaths Act, 1969. The surrogate mother was named the mother of the twins because the identity of the biological mother was unknown.

Because the twins were born in India and were Indian citizens, the petitioner applied for their passports in India. However the Passport Authority argued that the surrogate mother could not be treated as the mother of the twins, and children born out of surrogacy, even though in India, cannot be treated as Indian citizens within the meaning of Section 3 of the Citizenship Act, 1955. Further, it argued that because the parents of the children were not Indian citizens the children were not Indian citizens under section 3(1)(b) of Citizenship Act, 1955. Further, it argued that because the Central Government had yet to legalize surrogacy, children born out of surrogacy, even though in India, could not be considered Indian citizens.

The High Court of Gujarat on the Passport Authority’s argument that commercial surrogacy is illegal in India, observed that there is no law prohibiting artificial insemination, egg donation, lending a womb, or entering into surrogacy agreements, and that persons involved in surrogacy were not subject to civil or criminal penalty. While emphasizing the need for a legislation governing surrogacy, the High Court observed that Section 3 of the Citizenship Act, 1955 uses the expression “every person born,” emphasizing the phrase “person born.” “Person” means a natural person. The court went on to pronounce that “the only conclusion that is possible is that a gestational mother who has blood relations with the child is more deserving to be called as the natural mother. She has carried the embryo for full ten months in her womb, nurtured the babies through the umbilical cord. Even if we assume that the egg donor is the real natural mother, even then she is an Indian national so revealed before the learned Single Judge, we are told. Both the egg donor as well as the gestational surrogate are Indian nationals, and hence the babies are born to an Indian national.”

Because the twins in this case were persons born in India, with one of their parents indisputably an Indian citizen, section 3(1)(c)(ii) of the Citizenship Act, 1955 was satisfied that the twins were Indian citizens by birth. As a result, the twins could not be denied passports to travel abroad. The judgment has been appealed to the Supreme Court of India, so this may not be the final word on citizenship of surrogate children.

In India, surrogacy arrangements provide a source of money for financially downtrodden surrogate mothers. Unlike other countries where the surrogacy is governed by strict regulations, the process is relatively easier in India. While surrogacy is not illegal in India, it still does not have a specific law governing it. However the Indian Government is planning to regulate the country’s booming surrogacy industry, which many critics describe as “baby outsourcing.” Comprehensive legislation addressing the myriad of issues arising in surrogacy arrangement is necessary to keep up with the advancement of reproductive science and development of ART, including the rights of children born out of a surrogate mother, as well the rights, duties, and obligations of the donor and gestational surrogate.

However the question that remains unanswered at least for the time being is whether this Bill would be sufficient to protect the interests of surrogate mothers and children born to them. It is a question that the government will have to consider as surrogacy is poised for legislative approval in India.

Abhishake Sinha is a partner in Chitale & Chitale Partners, and heads the firm’s practice in corporate laws. Abhishake may be reached by email at abhishake@chitales.com

Sayan Chakraborty is an associate with Chitale & Chitale Partners, and specializes in the practice of labour & employment and corporate law. Sayan may be reached by email at sayan@chitales.com