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Surrogacy in India

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Submitted By skm0011
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In Oct 2008, the Supreme Court ruled that "commercial surrogacy is legal and an industry in India", making it a legally protected and viable option for international couples. Named the Assisted Reproductive Technology (Regulation) Bill, 2013, it seeks to address issues like how many pregnancies can be allowed for a surrogate mother, the age of the mother and due compensation to be paid to her.
"The issues addressed in the bill are compensation, informed consent and health of the women involved,” He said that the bill might also provide a punishment framework for violators.
The bill will also provide a framework for letting foreigners use Indian surrogate mothers. Surrogacy in India has always been a controversial subject with activists blaming foreigners for exploiting poor women. In 2012, an Australian couple left behind one of the twins born to an Indian surrogate mother because they could not afford to bring up two children back home. The Indian case happened about two years ago and echoes the recent case of baby Gammy, who was born in Thailand to a surrogate mother and whose Australian parents only brought back his twin sister.
In the Landmark case Baby Manji Yamada v. Union of India, a Japanese couple, Dr. Ikufumi Yamada and his wife, wished to have a baby and entered into a surrogacy contract with an Indian woman in Anand, a city in the state of Gujarat where this practice was pioneered. The couple went through matrimonial discord but the father still insisted on having custody of the child. Under Indian Lawa single father cannot adopt a girl child. He sent his mother in his stead and a petition was filed before the Supreme Court. The Government seemed to be helpless in this matter as there were no laws governing the effect of surrogacy. The Apex Court directed that the National Commission for Protection of Child Rights was the apt body to deal with this issue. Justic Arijit Pasayat and Justice Mukundakan Sharma of the Supreme Court held that the father was the genetic father of the child and he was given custodial rights of the child. The Government was instructed to issue the passport to Manaji Yamada and she returned with her grand –mother. Most importantly, the Supreme Court held that the Surrogacy Agreement was valid in India. What is most noticeable in the Baby Manji Yamada case is that the stance of the Court was not only prosurrogacy it was also extremely procontract. The contract was held to be valid and therefore of most importance even though what the Court granted went against a particular legislation in the country.
Earlier in 2010, a German couple, Jan Balaz and Susan Lohle, had to wait for two years before they could take their twin babies home. Their twin sons, Nikolas and Leonard, were trapped in a citizenship limbo ever since an Indian surrogate mother gave birth to them in February 2008. The boys were refused passports by their parents` homeland because German nationality is determined by the birth mother. In Jan Balaz v Union of India, the Gujarat High Court conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district.[9] The court 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." The court considered the surrogacy laws of countries like Ukraine, Japan, and the United States.
Because India does not offer dual citizenship,[10] the children will have to convert to Overseas Citizenship of India if they also hold non-Indian citizenship.[11]
Balaz, the petitioner, 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.[12]

In May 2010, the Balaz twins were provided the exit and entry documents that allowed them to leave India for Germany. The parents agreed to adopt them in Germany according to German rules.[13]
Shabnam Hashmi vs. Union of India , 2014, the Court upheld the recognition of the right to adopt and to be adopted as a fundamental right. It held that every person, irrespective of the religion he/she professes, is entitled to adopt. The latest verdict of the Supreme Court recognising transgenders as the third gender says “discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution.” Clearly, legal recognition means that they would be entitled to rights of adoption, succession, inheritance and other privileges under law.

The government has proposed that surrogacy for foreigners in India shall not be allowed but surrogacy shall only be permissible to overseas citizens of India (OCIs), people of Indian origin (PIOs), non resident Indians (NRIs) and any foreigner married to an Indian citizen.
The eligible couple will have to produce a duly notarised agreement with the prospective Indian surrogate mother. Further, they have to produce an undertaking that they would take care of the child/children born through surrogacy.
Moreover, commissioning surrogacy in India would not be easy for foreigners married to an Indian because there are other conditions to do so. The Bill makes it mandatory for the couple to be married with the marriage sustaining for at least two years. They will further need to submit a certificate, attested by the appropriate government authority of that country, conveying that the woman is unable to conceive.

The government has also said that the child born to a foreigner married to an Indian citizen by sperm or egg donation, or surrogacy in India, then the child will not be an Indian citizen, despite being born in India, and will be entitled to Overseas Citizenship of India under Section 7A of the Citizenship Act, 1955.
The ART fraternity believes that the new rules will severely affect 'fertility tourism' in India. "This will affect the burgeoning fertility tourism in India. It will affect the economy also. It will be discouraging for foreigners as well as ART clinics, which mostly have foreigners as their clients," said Dr Gaurav Malhotra, CEO and MD, Bourn Hall international India, In Vitro Fertilisation (IVF) Centre.
The ART Bill also has stern rules for surrogates. It says that any woman agreeing to act as a surrogate shall be duty-bound not to engage in any act, including unprotected sex that may harm the foetus during pregnancy and the child after birth, until the time the child is handed over to the designated commissioning couple.

The sum and substance therefore, is not to shut the door to surrogacy which is an accepted societal practice in India having grown slowly over the past almost two decades. Medical technology, advancement of science permitting free export of frozen embryos and other scientific methods have offered hopes to childless persons. The more pragmatic and practical approach would be to make a law hedged with safeguards, checks and balances. The appropriate and desirable method would be to create a mechanism to judge the suitability of proposed surrogate parents rather than to debar all single and foreign persons totally. This would also avoid any conflict with existing laws of adoption wherein foreign persons including single parents are allowed to adopt through a strict and rigorous mechanism provided by CARA and overseen by Indian Courts. Simply trying to shut out surrogacy for foreign nationals and single persons may not be the ideal way to stamp out the hopes of persons wishing to be a parent. Whether Indians or foreign nationals, law treats persons as individual parents when so required. A restrictive meaning to the word “person” cannot qualify or change the definition by restricting it to an Indian national. The celebrated view of the Apex Court in widening the horizons to prevent discrimination on grounds of sex or gender identity is a new thought process based on international covenants of human rights. We cannot now permit our thinking to be retrograde simply because of the problems which come with surrogacy. Administrators cannot usurp law making functions to be a law unto themselves. This is the function of the Parliament. Mandarins cannot take over. The more apt approach would be to find solutions to handle and curb these problems. The mechanisms in law which can be created in India as is the case of inter-country adoptions is the best cited example. The approach is to restrict the entry and not shut the door altogether. Let us be wiser!
The legal aspects surrounding surrogacy are complex, diverse and mostly unsettled. In most of the countries world over , the woman giving birth to a child is considered as the Child's legal mother. However, in very few countries, the Intended Parents are be recognized as the legal parents from birth by the virtue of the fact that the Surrogate has contracted to give the birth of the Child for the commissioned Parents. India is one country amongst the few, which recognize the Intended/ Commissioning Parent/s as the legal parents. Many states now issue pre-birth orders through the courts placing the name(s) of the intended parent(s) on the birth certificate from the start. In others the possibility of surrogacy is either not recognized (all contracts specifying different legal parents are void), or is prohibited.

Australia In all the states of Australia, the surrogate mother is regarded/considered by the law to be the legal mother of the child and any surrogacy agreement giving custody to others is void and unenforceable in the courts of Law. In addition in all states and the Australian Capital Territory arranging commercial surrogacy is a criminal offence, although the Northern Territory has no legislation governing surrogacy at all and there are seems no near future plans to introduce laws on surrogacy into the NT Legislative Assembly.

Usually couples who make surrogacy arrangements in Australia must adopt the child rather than being recognized as birth parents, particularly if the surrogate mother is married. After the announcement, Victoria changed their legislation since January 1st, 2010, under the Assisted Reproductive Treatment Act, 2008, to make altruistic surrogacy within the state legal, however commercial surrogacy is still illegal.

Since June 1st, 2010 in Queensland, altruistic surrogacy became legal under the Surrogacy Act, 2010. Recently North South Wales (NSW) has come up with Surrogacy Bill, with it being passed by the Legislation but the Proclamation of the same is yet to take effect and it seems that the same will happen by Feburary, 2011 thereby prohibiting commercial surrogacy and making Altruistic Surrogacy the Law of the day.

Canada Commercial Surrogacy is prohibited under the Assisted Human Reproduction Act, 2004. Altruistic surrogacy remains legal. In the province of Quebec, contracts that involve surrogacy are unenforceable.

France In France, since 1994 any surrogacy arrangement whether it is commercial or altruistic is illegal, unlawful and prohibited by the law. Hungary Commercial surrogacy is illegal in Hungary.

India Commercial surrogacy has been legal in India since 2002. India is emerging as a leader in international surrogacy and a sought after destination in surrogacy-related fertility tourism. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients roughly a third of the price compared with going through the procedure in the UK.

Surrogacy in India is relatively low cost and the legal environment is favorable. In 2008, the Supreme Court of India in the Manji's case (Japanese Baby) has held that commercial surrogacy is permitted in India with a direction to the Legislature to pass an appropriate Law governing Surrogacy in India. At present the Surrogacy Contract between the parties and the Assisted Reproductive Technique (ART) Clinics guidelines are the guiding force. Giving due regard to the apex court directions, the Legislature has enacted ART BILL, 2008 which is still pending and is expected to come in force somewhere in the next coming year. The law commission of India has specifically reviewed the Surrogacy Law keeping in mind that in India that India is an International Surrogacy destination. International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par/uniformity else the concerns and interests of parties involved will remain unresolved and thus, giving due regard to the concerns and in order to prevent the commercialization of the Human Reproductive system, exploitation of women and the commodification of Children, the law commission has submitted it’s report with the relevant suggestion: The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY.” The following observations had been made by the Law Commission: - (a) Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
(b) A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
(c) A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
(d) One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
(e) Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
(f) The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
(g) Right to privacy of donor as well as surrogate mother should be protected.
(h) Sex-selective surrogacy should be prohibited.
(i) Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.
The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor, which the law has to address. The Law Commission has strongly recommended against Commercial Surrogacy. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2011 with the passing of the Assisted Reproductive Technology Bill aiming to regulate the surrogacy business. Israel Israel the first country in the world to implement a form of state-controlled surrogacy in which each and every contract must be approved directly by the state. In March 1996, the Israeli government legalized gestational surrogacy under the "Embryo Carrying Agreements Law." Surrogacy arrangements are permitted only to Israeli citizens who share the same religion. Surrogates must be single, widowed or divorced and only infertile heterosexual couples are allowed to hire surrogates. Due to the numerous restrictions on surrogacy under Israeli law, the Israeli intended parents have turned to International Surrogacy. India is the preferred destination because of its low costs. Then Intended Parents also turn to US surrogates where an added bonus is an automatic US citizenship for the newborn. Japan In March 2008, the Science Council of Japan proposed a ban on surrogacy and said that doctors, agents and their clients should be punished for commercial surrogacy arrangements.

Netherlands and Belgium Commercial surrogacy is illegal in Belgium and the Netherlands. United Kingdom Surrogacy arrangements have been legal in the United Kingdom since 2009. Whilst it is illegal in the UK to pay more than expenses for a surrogacy, the relationship can be recognized under Section 30 of the Human Fertilization and Embryology Act, 1990 under which a court may make parental orders similar to adoption orders. How this came about is one of those occasions when an ordinary person can change the law. United States Many states have their own state laws written regarding the legality of surrogate parenting. It is most common for surrogates to reside in Florida and California due to the surrogacy-accommodating laws in these states. With the accommodating laws of the State of California and the long overseas deployments of husbands, wives have found surrogacy to be a means to supplement military incomes and to provide a needed service. It is illegal to hire a surrogate in New York, and even embryonic transfers may not be done in New York. At this point, the laws surrounding surrogacy are well defined in the State of Pennsylvania, and surrogacy is beginning to become common in the state of Delaware.…...

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...adoption (ICA) is a practice that has gained popularity over the years, and there is every reason to believe this trend will continue. For couples (or individuals) whose country of residence has few healthy babies available for adoption, going outside the country for a child is a desirable option. It is also desirable from the perspective of the child, who usually comes from a country with more available children than potential adoptive parents. Right away, these seem to be two very compelling reasons to support the idea of inter-country adoption, and work toward its best model. The purpose of this paper is to give an overview of inter-country adoption using India as a case study. The paper will give a brief background of ICA and the main problems it both addresses and raises, then look at the case of India in particular, and, finally, provide some directions for policy and further research. Background on ICA ICA began in earnest as a response by North American countries to the post-WWII devastation. At that point, it was a humanitarian reaction to the needs of the newly-orphaned children in Europe. Since that time, ICA has shifted its focus to become a means for individuals in the developed world to have children. In most Western nations, the number of healthy infants available for adoption has been steadily decreasing, due to a number of social and economic factors including widespread use of birth control, an increased number of abortions, and......

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...Indian Education System Presented by: Doff _____________________________________________________________________________________ History * India has a long history of organized education. The Gurukul system of education in which students were taught orally and the data would be passed from one generation to the next. Up to the 17th century * The first millennium and the few centuries preceding it saw the flourishing of higher education at Nalanda, Takshashila University, Ujjain, & Vikramshila Universities. * Art, Architecture, Painting, Logic, mathematics, Grammar, Philosophy, Astronomy, Literature, Buddhism, Hinduism, Arthashastra (Economics & Politics), Law, and Medicine were among the subjects taught. After 1976 * In 1976, education was made a joint responsibility of the states and the Centre through a constitutional amendment * Center is represented by Ministry of Human Resource Development's Department of Education and together with the states, it is jointly responsible for the formulation of education policy and planning. * The 86th Amendment of the Indian constitution makes education a fundamental right for all children aged 6-14 years. Today education system in India can be divided into many stages. Pre- Primary - It consists of children of 3-5 years of age studying in nursery, lower kindergarten and upper kindergarten. At this stage student is given knowledge about school life and is taught to read and write some basic......

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