Published On:12 March 2013
Posted by Indian Muslim Observer

Surrogacy gaining acceptance in India

By Syed Ali Mujtaba

In a significant order, the Madras High Court on March 5, 2013 has held that a woman who had a child through surrogacy is entitled for maternity leave.

The ruling was given by Justice K Chandru while allowing a petition by a woman employee of the Chennai Port Trust (CPT) seeking to quash an order of the management rejecting her plea for maternity leave in 2011.

"This court does not find anything immoral and unethical about the petitioner having obtained a child through surrogate arrangement," the judge said in his order.

The Court directed the CPT to grant leave to her in terms of Rule 3A of the Madras Port Trust (Leave) Regulations, 1987 (applicable for those going in for adoption) recognizing the child obtained through surrogate procedure and to include the name of the newly born in the insurance scheme.

Justice Chandru noted the purpose of the said rule was for proper bonding between the child and parents.

The woman, an assistant superintendent in the Chennai Port Trust, preferred to have a child through a surrogate mother, with the consent of her husband, after her 20-year-old son was killed in a road accident in 2009.

She applied for maternity leave to look after the new born after the surrogate mother gave birth to a girl baby on February 8, 2011. She also applied to include the child under the family medical insurance scheme.

Her application was rejected on the ground that there was no provision in the rules for granting such leave to those who have child through surrogacy.

After hearing arguments from both sides, Justice Chandru said, "Even in the case of adoption, the adoptive mother does not give birth to the child, but yet the necessity of bonding of the mother with the adoptive child has been recognized by the Central government, therefore, the petitioner is entitled for leave in terms of Rule 3A," he said.

Global Surrogate Mothers Advancing Rights Trust (G-Smart) a NGO, www.surrogatemotherstrust.org, based in Chennai welcomed the Madras High Court Judgment on Women with babies through surrogacy are entitled to maternity leave.
Reacting to the judgment, A.J.Hariharan, Chairperson G-Smart said this kind of judgments will help and enable the environment on protecting rights of surrogates.

He added; ‘since ‘Assisted Reproductive Technology’ (ART) procedures are not regularized, the judgment may throw significant light on critical issues around surrogacy’.

G-Smart demanded from the State and Central government to extend all kind of support to surrogate mothers and make sure that surrogate mother will get insurance for Rs 10 lakh and 10 years of free medical support for Gynecological problems after surrogacy.

Central government should table the ‘Assisted Reproductive Technology, Regulation Bill 2010’ immediately in the Parliament Mr.A.J.Hariharan said.

Surrogacy in India is estimated to be a $445 million business with the country becoming a leading service provider in such cases. This is because of the low cost of treatment and the ready availability of women willing to rent their wombs. In comparison to USA where surrogacy cost is about $70,000, it costs only $12,000 in India.

The issue shot into limelight in 2008 when a surrogate mother gave birth to a girl ‘Manji’ in Gujarat. The baby's parents, Ikufumi, 45, and his wife Yuki, 41, came to India and hired the service of a surrogate mother from Anand town in Gujarat.

However, before the baby was born the couple separated and divorced. Manji's father claimed the custody of the child but laws in India do not permit this and the issue got entangled in legal battle.

The Supreme Court finally granted Manji's custody to her 74-year-old grandmother but this was contested by an NGO named ‘Satya.’ The NGO claimed that Manji was an abandoned baby.
This made the Supreme Court to ask the central government to clarify its stand on issues related to surrogacy, particularly parentage and citizenship.

Even though still there is not much clarity on Surrogacy issue Manj case kicked of a debate in India. The government took cognizance of the matter and went on to draft a bill called ‘Assisted Reproductive Technology, Regulation Bill 2010.’

The opinion seems to be building for having relevant laws regarding this issue that should not only protect the surrogate mothers, but also check the foreigners who come to India looking for renting wombs.

The, British and American laws forbid surrogate mothers to charge a childless couple, whereas in India there is no such law. It raises the question whether surrogate mothers should be allowed to charge a fee.

All these issues and many more are suppose to be addressed through ‘Assisted Reproductive Technology, Regulation Bill 2010.’ However, when this bill will be passed by the Parliament is only a matter of guess.

[Syed Ali Mujtaba is a Journalist based in Chennai. He can be contacted at syedalimujtaba@yahoo.com]

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