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India's new surrogacy laws are only part of the equation

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14 March 2013

Liz Bishop
Dr Liz Bishop

by Dr Liz Bishop

On an ever burgeoning basis, foreigners have been seeking commercial surrogacy arrangements through Assisted Reproductive Technology Clinics in India. The Confederation of Indian Industry estimates its annual contribution to the Indian economy to be $2 billion, an important market for all those with vested interests but one that is unregulated. 

A Bill to regulate the commercial surrogacy market in India has been through several incarnations. In both the 2008 and 2010 versions the Assisted Reproductive Technology (Regulation) Bill relies on contract law to establish a relationship between the commissioning parent/s and the clinic.  The priority of the Bill is to ensure an efficient, enforceable transaction between those parties, and any consideration of the rights of the surrogate mother or of the child is scant, at best.

Until now, the only positive note in India’s failure to legislate to regulate this growth market has been non-discriminatory access. Irrespective of sexuality, marital status or age, couples and individuals have had unfettered access to surrogacy through the clinics. 

This has worked well, until now, for those unable to access similar surrogacy arrangements in their own countries, like Australia. Commercial surrogacy is prohibited in all states of Australia, and where altruistic surrogacy is available, it is so only in limited and defined circumstances. Australia is equally not keen, it would seem from our laws, on single or homosexual couples having families through surrogacy. For many childless individuals and couples this has meant that India’s Clinics provide them with the most accessible means of having their own family.

What has changed? Why are Australians starting to talk about the potential statelessness of children born through commercial surrogacy in India? One might hope it is because we are no longer choosing to be indifferent to the plight of children born through international surrogacy agreements. After all, current arrangements result in the child being treated more like property than as a bearer of rights deserving respect and dignity.

However, outcry in Australia has not been in response to the realisation that we have been allowing children born overseas, through a means illegal in Australia, to be brought back to Australia with scant regard for their rights. Rather it has focused on the recent move of the Indian government to deal with one of the greatest controversies besetting its booming market - visas and birth certificates.

Many children born in India to overseas couples have remained stateless for significant periods pending resolution of visas, court cases and, in some cases, divorce. 

It would seem likely that the recent amendment has been driven by cases like that of Baby Manji.  Due to the intricacies of both Japanese and Indian law, after her parents divorced during her mother’s pregnancy, Manji languished in a hospital in Rajasthan for three months while her status was sorted out. She was finally allowed to go to Japan with her grandmother on a one-year humanitarian visa, still under the cloud of citizenship uncertainty.

In an attempt to deal with this the Indian Home Ministry has tightened visa requirements for those seeking to have a surrogate child commercially. From January 2013, only couples married for two years and those whose countries recognise surrogacy, among other conditions, can now apply for a medical visa for surrogacy. As a result of our discriminatory laws (not India’s) that do not recognise non-heterosexual marriages, this disqualifies both gay couples and single individuals.

Meanwhile, the Bill still languishes, the market continues unregulated and contracts govern the futures of children born through commercial surrogacy in India. 

Whilst regulation cannot restore dignity to either the woman or the child, and arguably it is little more than a flimsy disguise of exploitation, its absence leaves them even more vulnerable.

To be concerned with the potential statelessness of some children born in India, seems to be missing the bigger picture.

There are many flaws with the Indian system of not regulating commercial surrogacy.  Whilst some may consider the possibility fanciful, it is considered by many experts to result in trafficking of children. 

The nature of any regulation also needs to be considered. There have been years of discourse on adoption, the human rights involved and an acceptance of what is and is not appropriate and reasonable.  The considerable requirements for foreign prospective adoption focus on the best interests of the child, not on the child as the outcome of a contract. Perhaps this would provide a better model than contract law, with its focus on the bottom line at the expense of ethical outcomes.

What should our responses in Australia be to this recent change to Visa requirements? Should we focus less on outcomes rendered discriminatory by our own laws and more on our responsibility to any child born of a commercial surrogacy arrangement in India intended to be a citizen of Australia? 

No state in Australia allows commercial surrogacy, and not all permit altruistic surrogacy arrangements. Presumably this is because of concerns around vulnerability and exploitation of the women who act as surrogates and concerns about the rights of those born through these arrangements.

Perhaps rather than focussing debate on seeming inconsistencies in Indian visa regulations, we should be questioning our indifference to the rights of all children born overseas through commercial surrogacy arrangements and our responsibilities to them as future Australian citizens.

Dr Liz Bishop is from the Michael Kirby Centre for Public Health and Human Rights at Monash University.