Conclusion

VII. CONCLUSION

Rather than the Indian Parliament catching up to make a law to regulate the unscrupulous surrogacy
trade, the new Medical Visa Regulations have stepped in temporarily to do what the law ought to have
done. But, they also infringe on the rights of single foreign parents. Instead of permitting surrogate
children to be born in India with the risk of being stateless persons and being denied entry into foreign
countries where their commissioning parents reside, it is apt and necessary that such unethical practices
leading to such disastrous situations must be pre-empted and prevented. Recent instances of surrogate
children from Germany, Japan and Israel born in India and leaving upon court intervention should well
make legislators think of enacting a strict surrogacy monitoring law. The Assisted Reproductive
Technology (Regulation) Bill, 2014 itself has legal lacuna, lacks creation of a specialist legal authority for
determination and adjudication of legal rights of parties, in addition to falling in conflict with existing
family laws. These pitfalls should not become a graveyard for a law which is yet to be born. Surrogacy
needs to be checked and regulated by a proper statutory law. Piecemeal administrative decisions cannot
substitute legislation to override settled statutory rights conferred by laws made for inter-country
adoptions to foreigners and non-resident

Indians who have acquired foreign nationalities. The law makers must

enact a law to put checks, controls and regulatory steps in place through a legislative mechanism.
Surrogacy should be controlled by proper legislative methods as existing in the case of inter-country
adoptions. Anamolies in matters of foreign parents and single foreign parent surrogacy compared to
foreign couple and single parent adoptions by foreigners must be resolved to be made consistent and
uniform. The Assisted Reproductive Technology (Regulation) Bill, 2014 must be overhauled in the proper
perspective for providing mechanisms to regulate, check and control unethical practices as also to grant
protection to rights of parties who are at a disadvantage. The ART Bill, 2014 put in public domain to
general public and stake holders needs to be discussed threadbare. Public opinion must be espoused
and views of stakeholders should be deliberated upon. Surrogacy by foreigners in India should be
regulated and monitored with safeguards, but not stopped arbitrarily, creating discrimination in
comparison with adoptions permitted to foreign parents in India through the statutory CARA Guidelines,
2015. The surrogacy laws must be reconciled with existing enactments which permit single foreign
parents or couples to become parents in India. Hence, the proper course would be a statutory law which
looks at all perspectives and protects the rights of all parties without infringing on the claims of others. A
fresh perspective is the call of the day for introspection.
n‘VI-I V'“"--‘-“_U I hl‘gUl‘o

The Minis“? (’3‘ Home Affairs by administrative guidelines dated 9 July, 2012, has stipulated that only
married foreign men and women

whose marriage has? sustained for atleast two years would be eligible to apply for medical Visas for
purposes of surrogacy in India. Consequently, all single persons and unmarried couples have been
declared ineligible

from even applying for a visa in any category whatsoever for coming to India for the purposes of
surrogacy. On September 30, 2015, the

ART (Regulation) Bill, 2014, proposes to make all foreigners ineligible for surrogacy in India, except OCls,
PlOs, NRls and foreigners married to Indian citizens. This unreasonable classification violates articles 14
and 21 of the Constitution, has no nexus with the object sought to be achieved and directly curtails/
interferes with “the right of reproductive autonomy” which is a facet of the ”right (I priwcf under article
21 of the Constitution. No reasons, justification, logic or explanation is forthcoming as to why single
foreign persons or foreign couples have been debarred and excluded from commissioning surrogacy in
India. None of the grounds made out in the impugned Guidelines justify or validate this arbitrary
exclusion and unfounded ineligibility of single persons/ unmarried couples who have been debarred
from even applying for visas to India. Even in the ART (Regulation) Bill, 2014, there is no reasoning or
justification of excluding foreigners for coming to India for

surrogacy, raising controversies making such issues questionable.