Why Indian surrogacy laws are ripe for exploitation by paedophiles

Four years ago, a man of Israeli nationality landed in India and signed an agreement with an Indian woman to have a surrogate child. When the child, a girl, was born, she was given Israeli citizenship. And the man became the girl's father for all legal purposes.

Both of them flew back to Israel where they live now. In mid- 2013, Israel authorities got an alert about the man's past. It turned out that the man had spent around 18 months in prison on charges of sexually abusing children, some of whom were in his care, reported the Jewish Chronicle newspaper, which broke the story on Thursday. Now they are at a legal standstill wondering how a convicted paedophile got parental rights of an overseas surrogate child.

The case is an example of how surrogate Indian children remain prone to abuse in the absence of a domestic surrogacy law.

In the backdrop of lenient background checks on prospective parents, even a person convicted of sex offences against children can acquire parental rights over an Indian surrogate child. Worse, the yet to be passed law to govern surrogacy in India cannot avoid a repeat of such cases, said child rights experts.

 Why Indian surrogacy laws are ripe for exploitation by paedophiles

Representational image: Reuters

In 1996, Israel became the first country to legalise surrogacy. It is illegal for same sex couples to have a surrogate in Israel though- a reason why they opt for overseas surrogacy.

The arrangement has so worked so far with 200 overseas surrogate children entering Israel in last six years. But poor regulation has resulted in a situation where children have landed in the wrong hands.

Dr. Yitzhak Kadman Executive Director, National Council for the Child, the Israeli NGO which highlighted the girl’s case, wrote to the health ministry of Israel in April 2013. “Regulating the process of surrogacy abroad in legislation will protect rights of the child born abroad and will allow screening of prospective parents in order to avoid trafficking or abuse,” said Dr Kadman, in a letter made available to Delhi based NGO HAQ Centre for Child Rights.

Back in India, there is no legislation governing surrogacy agreements. The Assisted Reproductive Technology (ART) Bill 2010 is yet to be passed. Currently, surrogacy agreements are done under Indian contract law. “It is not very different from a contract between tenant and a landlord. There is no uniform procedure involved. And just like rent of flat varies depending on location and amenities, there is no fixed amount paid to surrogate mothers,” said Enakshi Ganguly of HAQ Centre for Child Rights.

As it is surrogacy and not adoption, the Central Adoption Resource Agency, which is the union government’s nodal agency to supervise adoption of Indian children, has no role.

However not all countries give citizenship rights to overseas surrogate children.

Globally, there is no standard requirement for granting citizenship to babies born through commercial surrogacy in India. “Even in the same country, one state can allow it and another can say no. In Australia, for example, it is allowed in Victoria but banned in New South Wales,” said Jagatgeet Singh of Delhi based Wyzax surrogacy consultants.

In a majority of countries, the genetic link between surrogate child and one of the commissioning parents is a condition for giving a passport to an overseas surrogate child.

To give Indian surrogate children their nationality, foreign commissioning parents are required to submit surrogacy contracts, the baby’s birth certificate, parents’ birth certificates, and pregnancy medical records with India’s Foreigner Regional Registration Office (FRRO). Documents are verified by India’s Ministry of External Affairs and the country’s embassy in India.

In the absence of a law, India has tried to strengthen the process by issuing guidelines and directives, which are termed by experts as knee jerk reactions. In April 2013, the Ministry of Home Affairs issued a directive banning gay couples and single parents from acquiring Indian surrogate couples.

“Where is the proof that only homosexual couples or single parents abuse a child? Child can be sexually abused a heterogeneous families as well. Instead of making generalizations, we should devise mechanisms to ensure that child is going in a family which will protect his or her rights,” said N Sarojini of Sama resource group for women and health, a Delhi based organisation which works on reproductive issues.

Although the ART Bill is expected to address surrogacy related issues in the country, the current draft is silent on background check of prospective parents. As per the Bill, commissioning parents must produce proper documents stating that the country permits surrogacy and the child born through surrogacy in India, will be permitted entry in the country as a biological child of the commissioning couple/individual.

There is an assumption that the letter obtained from either the embassy of the country in India or from the foreign ministry of the country, is a guarantee that the person’s past is clean and he or she will not abuse the child. “When the foreigner’s country of origin is issuing him a letter, it means they have done the proper background check of the person,” said Dr Manish banker, one of the members of the drafting committee of ART Bill.

Meanwhile, the girl in Israel continues to live with her father, who is receiving psychological treatment.

Updated Date: Jun 11, 2013 17:52:34 IST