Legal Procedures and Issues Involved in Surrogacy and Adoption in India
This article by Antariksh Anant deals with the legal procedures and issues involved in Surrogacy and Adoption in India. Surrogacy implies a contract where a woman carries a pregnancy for some other couple. India host thousand of infertile couples as commercial surrogacy is legal. Similarly, adoption as a development of an institution by the name of family has… Read More »
This article by Antariksh Anant deals with the legal procedures and issues involved in Surrogacy and Adoption in India.
Surrogacy implies a contract where a woman carries a pregnancy for some other couple. India host thousand of infertile couples as commercial surrogacy is legal. Similarly, adoption as a development of an institution by the name of family has drawn quite an attention. India, as one of the antiquated countries of the Asian mainland, has seen drastic changes in the area of adoption. Although on the face of it, they both seem like a beneficial agreement for all the parties, there are latent issues which need to be addressed through the careful passing of laws and even more stringent implementation of the same.
I. Introduction – Surrogacy and Adoption in India
After reading and examining the thousand-year-old record of Indian Vedic Literature and discovering the modern techniques dealing with reproduction and DNA, it seems that parenthood is an instinct-driven phenomenon.[1] The desire for motherhood is the most innate desire of every living creature consisting of every animal and human. As per ancient Indian philosophy, the core purpose of one’s biological life is to pass on their own genes and traits to the coming generation.[2]
Reproduction is the final objective of every species, therefore, the birth of an offspring is often associated with the factors that lead to the high chances of survival. The most common example of this is the thousand-kilometre migration of birds just to find the most conducive environment for their offspring to survive.[3]
The novel surge in the world of infertility has led to the adoption of other methods through which people try to get a child. It can either be in the form of conventional adoption or the more recent assisted reproductive techniques (ART). However, practices like adoption and surrogacy, which aid a parent in having a child, have certain legal procedures that are required to be met. If a child is adopted without keeping in mind the legal procedures, that adoption or surrogacy would not be legal and the child would never acquire the status of the child of the parent.
II. Surrogacy in India
In a nutshell, surrogacy refers to reproducing through a system of assisted mean wherein the parents depend on a surrogate mother to give birth to the child for the parents. More often than not, intended parents who opt for surrogacy are the ones who are not capable to reproduce on their own. This could be a result of various reasons ranging from infertility to some biological or physical abnormality making it difficult for the mother to conceive a child.
Surrogacy can be varied depending on the basis of the relationship with the mother (Gestational v. Traditional), remuneration of the surrogate (Compensated v. Altruistic) and the place of occurrence (Domestic v. International).[4]
1. Legal Procedure Related to Surrogacy
The defining moment came in the year 2008 when the Supreme Court was called upon to decide upon a case concerning surrogacy. The instance of Baby Manji Yama v. Association of India simply related to acquiring travel reports for an infant with Japanese parents considered and born in India through commercial surrogacy. In spite of the fact that the issue of the legitimateness of commercial surrogacy under Indian law was not raised, the Supreme Court mentioned an observable fact that commercial surrogacy is lawful in India.
The circumstance of the judgment corresponded with the definition of the Assisted Reproductive Technology (Regulation) Bill, 2008. Sadly, no means were taken to table the Bill of 2008 preceding Parliament. This provoked the Law Commission to Suo moto takes up the issue of surrogacy for research. The research finished in its 228th Report submitted in August 2009 where the Law Commission mooted the proposition for patched-up legislation to manage the cycle of surrogacy in India.
Foreign nationals have profited from surrogacy in India. India gave an unregulated cheaper option in contrast to different countries of the West coupled with appropriate clinical consideration and framework. The Bill of 2008 allowed a foreign couple to look for surrogacy administrations in India. This was overturned in the Bill of 2014 limiting surrogacy to Indian nationals, PIOs, and NRIs.
Barring foreign nationals from the domain of surrogacy administrations in India through the Bill of 2019 is a positive development. This advancement comes in the wake of genuine charges of offenses, abuse, and abnormalities revealed in surrogacy cases including foreign nationals. It is likewise an intelligent result emerging out of the restriction on commercial surrogacy conceived by the Bill of 2019.
The Bill of 2019 was quite recently presented in Rajya Sabha where the arrangements were discussed frayed and the deficiencies talked about above were discussed. With a view to addressing them, the Bill has been alluded to a 23 member Select Committee of Rajya Sabha. The need of great importance is all-encompassing and balanced legislation controlling surrogacy which will stand the trial of time and constitutionality. It is therefore imperative that the deliberations of the Committee are carried swiftly to iron out the creases and re-introduce the Bill in the next session of Parliament.[5]
2. Issues with Surrogacy in India
In any case, confining surrogacy to a married couple truly encroaches upon the privileges of single parents, LGBT people, and people who are in live-in relationships. Then again, there is no forbiddance on these classes of people receiving a child. As such, the law of surrogacy is in constant disagreement with the law of adoption in India. Such a limitation additionally militates against the idea of correspondence as revered under Article 14 of the Constitution of India.
While legislation can account for sensible characterization, such order needs to bear a nexus with the article tried to be accomplished by the legislation. The essential goal of the Bill of 2019 is to forestall deceptive works on emerging out of surrogacy administrations in India. Permitting surrogacy rights to a wedded couple to the prohibition of all others bears no nexus at all this item. Along these lines, such an arrangement can’t stand the trial of constitutional legitimacy.
III. Adoption in India
According to the Merriam-Webster legal dictionary, adoption refers to “take another parent’s child as your own child complying with the formal legal procedures”. Adoption is the acceptance of a child of other parents to be the same as one’s own child. In legal parlance, adoption enables a childless person to make somebody’s child as their own.[6]
Any person who is Indian, Non-Indian or a foreigner is eligible to adopt a child as per Indian law. The person should be medically fit and financially sound to take care of the child.[7] The minimum legal age for adoption is 21 years. Although, the age limit of the adoptive parent is dependent on the age of the child as there must be a difference of 21 years between the parent and the child. However, in all cases, the age of the parent must not exceed 55 years.
1. Conditions for adoption
- In case of adoption of a son by any Hindu male or female, there should not be any living son in the succeeding three generations of the party (whether by legitimate blood relationship or by adoption) at the time of adoption.
- In case of the adoption of a daughter by any Hindu male or female, they should not have any daughter or son’s daughter at the time of adoption.
- Where there is an adoption of a daughter by a male then the adoptive father should be at least twenty-one years older than the child.
- Where there is an adoption of a son by a female then the adoptive mother should be at least twenty-one years older than the child.
Personal laws of Muslim, Christian, Parsis and Jews do not recognise complete adoption so if a person belonging to such religion has a desire to adopt a child can take the guardianship of a child under section 8 of the Guardians and Wards Act, 1890.
2. Legal Procedure Related to Adoption
In India, Hindus, Jains, Sikhs or Buddhist are permitted to officially adopt a child. This adoption goes under Hindu Adoption and Maintenance Act, 1956. There are different laws like the Guardianship and Wards Act, 1890, Juvenile Justice Act, 2000 and so on to give the arrangements of adoption for Hindus as well as for all non – Hindus like Christians, Muslim, Parsis and Jews. Under the Guardianship and Wards Act, while the new parents are presented guardianship status, the adopted child doesn’t naturally get legacy right.
The guardians need to present an investment plan and furthermore a specific measure of money for the sake of the child for his/her future. As per the Juvenile Justice Act, the Act is pertinent just to children who have been deserted or mishandled and not to those children who have been wilfully put for adoption.[8]
Here is the procedure related to adoption in India:
- Prospective parents should register at a licensed adoption agency with the whole required papers.
- At that point, the specialist from the agency will move toward the parents for a home report.
- Subsequent to discovering a suitable child, the agency will call the forthcoming parents to meet the child.
- In the event that the parents approve, the agency may give up the child once a foster care arrangement is agreed upon.
- In the meantime, the agency’s lawyer records a request for adoption in the interest of the couple, either under the watchful eye of the court or Juvenile Justice Board, contingent upon the law under which the adoption will occur.
- The agency representative and the parents register the adoption deed as proof of fulfilment of adoption.
As per the Act,[9] “The child to be adopted should be really given and taken in adoption by the parents or guardian concerned or under their position with mean to move the child from the birth family or, on account of a neglected child or child whose parentage isn’t known, from the family where it has been raised to the family for its adoption.[10]
3. Issues Relating to Adoption in India
Even after adoption being provided by the adoption agencies, the concerning reality is that adoption in a private manner still takes place in various hospitals their unorganised agents. Here are some issues prevalent to adoption in India:
- Most of the times, adoption agencies are perceived to be “money makers” and so they are constantly put under “scanner‟ by the whistle-blowers.
- As opposed to the Western countries, Indian culture doesn’t enable “open adoption”. Since India takes after “shut adoption”, arrangement about the birth parent/s isn’t revealed. Beginning today, it is watched both in-country and a couple of families in metropolitan locales, new parents are furthermore not open to enlightening their children concerning the adoption status. On the off chance that a child gathered this information from others, the trust could transform into an essential issue in the parent-child relationship.
- Single parent adoptions are legitimate, yet there is no investigation or proof of any expansion in single parents who have embraced children. There is no information accessible on the achievement rate of single-parent adoption.
- Clinical experience of the maker is that over liberality and overprotection are two marvels that are ordinary in child-raising. Regardless of all that they consider that these children who have landed as a result of unique conditions require unprecedented techniques for dealing with which might be not equivalent to natural child-raising practices.
IV. Conclusion
Adoption is a pious act so it should be performed by the people on a large scale because India is a country where there is too much population and there is a huge number of unwanted children.
It seems ironic that people are engaging in the practice of surrogacy when nearly 12 million Indian children are orphans. Adoption of a child in India is a complicated and lengthy procedure for those childless couples who want to give a home to these children. Even 60 years of Independence have not given a comprehensive adoption law applicable to all its citizens, irrespective of the religion or the country they live in as Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs) or Overseas Citizens of India (OCIs).
In the past few years, agencies and adoptive parents have noted a growing preference for the girl child over boys in India’s adoption system. Adoption is one of the ways to control and prevent female foeticide and infanticide problem raging in India. And what could be better to give a good and standard life to a child who really needs it.
[1] Hrdy SB. Texas, USA: Ballantine Books; 2000. Mother Nature: maternal instincts and how they shape the human species.
[2] Gupta PD, Lino A. Bikaner: Capricorn Publishing House; 2010. Mothering a cause: practical knowledge of reproduction and motherhood.
[3] Infertility, National Health Portal, available here
[4] About Surrogacy- Types of Surrogacy, Surrogate.com, available here, last seen on 02/08/2020.
[5] SURROGACY (REGULATION) BILL, 2020, Manifest IAS, available here, last seen on 03/08/2020.
[6] Mayne, Hindu Law and usage (11th edition) 184 – 188
[7] Inder Singh v. Kartar Singh, AIR 1966 Punj 258
[8] Ananthalakshmi. Child Adoption and Thereafter: A Psycho-Analytical Study. 2001.
[9] Section 11 (vi), Hindu Adoption and Maintenance Act, 1956.
[10] Bajpai, Asha. Child Rights in India: Law, Policy, and Practice. Oxford University Press, 2018.