Adoption Vs. Surrogacy: Contradictory Relationship in India

By Kiran Kirti Rath-

INTRODUCTION

The topic of the rights of children has arisen as perhaps the most dynamic issue for conversation in this century. The reality stays that children stay a piece of the distraught minority bunch even today according to an acknowledgement of human rights and social equity are concerned. The fundamental justification for this lacuna is that the children are as yet not a complete political entity in the evident feeling of the term. Other than that, they are for the most part physically, intellectually and monetarily dependent on others. In this period of globalization where things are evolving quickly, dealing with child's rights at each stage has taken a rearward sitting arrangement. This influences their entire value framework, yet additionally their current social and financial requirements. Almost certainly that the eventual fate of humanity relies upon children generally and still, at the end of the day an incomplete and parochial approach has been followed toward welcoming them on the mainstream of social and political plan.

After perusing and analysing the thousand-year-old record of Indian Vedic Literature and finding the present-day approach in managing reproduction and DNA, it appears to be that parenthood is an innate phenomenon. The craving for parenthood is the most inborn longing of each living being comprising of each animal and human. According to the old Indian way of thinking, the driving motivation behind one's biological life is to give their genes, qualities and characteristics to the coming age.

The tale flood in the realm of infertility has prompted the adoption of different techniques through which individuals attempt to get a child. It can either be as traditional adoption or the recent, widely accepted assisted reproductive techniques (ART). In any case, practices like adoption and surrogacy, which help a parent in having a kid, have a certain legitimate process that is needed to be met. If a child is adopted without keeping a check on the lawful procedures, that adoption or surrogacy would not be legitimate and the kid could never acquire the status of the child of the parent.

UNDERSTANDING THESE CONCEPTS:

ADOPTION AND SURROGACY

Adoption implies the interaction through which the adopted child is forever isolated from his biological parents and turns into the legal child of his new parents with every one of the rights, advantages and obligations that are joined to the relationship.[1]Thus it is alluded to as the transplantation of the child starting with one family then onto the next. i.e it's anything but a process to introduce a child for all time into a family with every one of the rights of a natural child, wherein he was not been conceived.

Adoption as a contriving factor of a family has drawn overall exploration for an indefinitely long period. India as one of the antiquated nations in the Asian continent has gone through significant changes in the field of adoption. From a casually adopting male offspring for performing last rituals after the demise of the adoptive parents, India has shown reformist changes. During the social change in the 1950s, India focussed on discovering home for deserted, dejected, ill-conceived and forsaken kids. These kids were regularized and at last positioned for domestic and intercountry adoption. The domestic adoption in India acquired its propulsion just in the late 1980s. From that point forward, significant changes have occurred in the field of adoption.

Notwithstanding, since India has not embraced a Uniform Civil Code, even the adoption laws are distinctive for every particular religion. While some of them permit adoption, the others don't perceive adoption yet permit different types of a similar like foster care, guardianship and so on. Although Central Adoption Resource Authority accommodates explicit and exact rules for adoption, the tragic reality is that it's anything but continued, by and large, making adoption a troublesome, complex and tedious cycle.

CASE LAWS RELATED TO ADOPTION

1. Shrimati Asoka Mukherjee Vs. Gandhi Das and Anr.[2]

Adoption of the accused was not substantiated in the face of overwhelming evidence of a giving and taking ritual. This has not been established that Kalipada and Sabitri Bala gave and took accused No. 1 in adoption. The witnesses who were there at the moment of the adoption declined to testify. The plaintiff is the owner of the suit premises, according to the court, and defendant No. 1 has no right, title, or interest in the suit presuppositions as a renter because his claim that he is the adopted son of Kalipada and Sabitri Bala has not been substantiated.

  1. Darshana Gupta Vs. None and Ors.[3]

When the child to be adopted is an orphaned, deserted, or capitulated kid, or a child in need of safety and treatment as defined by the Juvenile Justice Act, the Hindu Adoption and Maintenance Act's Section 11 (i) and (ii) do not prevent a Hindu with a biological child from adopting a baby of the very same sexes. Laws were susceptible to be interpreted synergistically in the modified sociocultural settings to facilitate the rehabilitation and social - integration of bereaved, discarded, and relinquished children - hence, the adoption of a little girl to the Appellant was ruled permissible.

These challenges in procedure among the different components lead to a rise in different ways like surrogacy and so forth. According to the Black’s Law Dictionary, surrogacy means the process of carrying and delivering a child for another person.[4] The Report of the Committee of Inquiry into Human Fertilization and Embryology or the Warnock Report (1984) defines surrogacy as the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth.[5] In the simplest of words, surrogacy means to carry someone else’s child till after birth when the child is handed over to the intending couple where the surrogate mother is taken care of till childbirth and post-childbirth as well. It is because of the highly popular case of Baby Manji Case[6] that the various types of surrogacies were identified by the court, respectively as, traditional surrogacy, gestational surrogacy, altruistic surrogacy, and commercial surrogacy.

Surrogacy is a useful technique for individuals who need offspring of their own however incapable to consider due to medical reasons or don't have a child of own because of other intimate reasons. Surrogacy, with its not-so-clear and even relatively unjust laws, seems like a long way to go at present. Now and again, it prompts the exploitation of the surrogate mother as she is paid truly less cash for her services or then again issues are made for the intending parents, particularly the foreigners. This is because there haven’t been any strict guidelines to regulate the same. However, the recently proposed legislation, Surrogacy (Regulation) Bill, 2020 has successfully banned commercial surrogacy to diminish exploitation and has certain rules and regulations to be followed to avail the services of surrogacy. It has received a huge level of backlash due to its fallacies and discriminatory restrictions but it has still been able to reduce the number of adoptions lately.

LANDMARK CASES DECIDING THE FUTURE OF SURROGACY IN INDIA

1. Baby Manji Yamada v. Union of India[7]

In the case of Baby Manji Yamada v. Union of India, a child was conceived to a Japanese couple via surrogacy. The husband was forced to depart to Japan after his visa was revoked, and the pair divorced. Even though the newborn's grandma was granted custody even after the mother declined, the infant was prohibited to exit India for three months after birth caused by a lack of Indian or Japanese citizenship. The grandmother was later allowed to leave with the infant by the Supreme Court of India.

2. Jan Balaz v Union of India[8]

The Gujarat High Court reviewed the citizen status of two newborn twins delivered via surrogacy to German parents in Jan Balaz v Union of India. The court asserted that the rights of two newborn, innocent babies should come first, supported by the rights of the birth parents, surrogate, as well as others. Any relationship with the surrogate mother, whether emotional or legal, must be carefully considered. The problem was that the German parents wanted to bring their twin babies back to Germany but surrogacy had been outlawed in Germany, and the babies couldn't be given Indian citizenship because dual citizenship isn't available in India.

THE EMERGENCE OF SURROGACY HAS LED TO A FALL IN PREFERANCE FOR ADOPTION: TRUE OR FALSE?

Going contrarily relative to child adoption, surrogacy has acquired speed in recent years. Bearing declaration to the truth of the matter is a diminishing number of adoptions - 3,988; 3,924; 4,964 and 5,964 - recorded in 2014-15, 2013-14, 2013-12 and 2010-11 respectively in India while the number of surrogacy births is expanding with the increment in several IVF centres.

Numerous IVF Experts say, a few parents and single parents coming to them at first wished to adopt a child yet when they got snared in the lawful procedures, they chose to go for surrogacy. According to the insights, surrogacy facilities have been seeing an expanding pattern of couples and single parents taking the surrogacy route to achieve parenthood. While adoption is additionally another way, the current lawful obstacles postpone the process. The waiting period in adoption is likewise too long in India. In addition, intended parents are going for surrogacy as they want to have their genes in the child.

Authorities in the Women and Child Development Ministry guarantee that the number of surrogates has expanded in a complicated manner in recent years. Strangely, IVF specialists claimed to get a few applicants who pick surrogacy over adoption following big names going for the tendentious procedure. The celebrity support of surrogacy has given it an air of yearning. Unexpectedly, surrogacy isn't simply satisfactory - it's cool. It's what the rich and well known do. There has been a rise in cases of surrogacy after popular celebrities like Tushar Kapoor, Aamir Khan and even Shah Rukh Khan have opted for surrogacy and have been blessed with a child.

SURROGACY VS ADOPTION: WHICH ONE IS BETTER?

There can be no out and out response to the question concerning which among, Adoption and Surrogacy is a better choice. Both have their upsides and downsides and the procedure to be chosen relies on the intending couple and their necessity. A couple, who may need children of their own, may go for surrogacy by inseminating the egg and sperm into the surrogate mother, who might then bring forth the couple's child. Then again, if an individual is willingly prepared to offer life to another's man's child may go for adoption. Another ascribing factor for this situation would be financial thought. Surrogacy is costly when contrasted with adoption. Thusly, in the end, one might say that numerous elements assume a part in choosing these two options.

Adoption has existed in India for a significant period, not at all like surrogacy whose commercialization was authorized just in the year 2002. Surrogacy, being a relatively newer concept in India, in my view, isn't carried out as expected because they were no strict enactment other than the recent cold, regressive bill that is not inclusive of all. All things considered, both of these procedures have their share of problems, upsides and downsides. The biggest difference between surrogacy and adoption is genetic linkage. There are multiple psychological drawbacks with adoption whereas there are several legal and ethical issues with surrogacy.

Here, I would like to address a highly disturbing fact that as per the Surrogacy (Regulation) Bill, 2020, Single parents, unmarried, live-in couples and the LGBTQIA+ Community has been completely discarded by the bill to even have the option of availing surrogacy, that itself is violative of multiple fundamental rights given to individuals. At the same time, even though it is legal for single parents and the rest to adopt, there is no proof or records whatsoever of single parents who have adopted children. There is no evidence accessible on the success rate of single-parent adoption. They are automatically discarded or are kept in even longer periods than usual in the waiting period whenever they try to adopt. As per the orthodoxical mindset of Indians, Gay parents are automatically assumed to be child sex offenders even before knowing them.

Another sick mentality is that Indians will always prefer newborn babies instead of older kids because it is considered easier to handle and can give a better experience of parenthood without actually giving birth. Due to this, 6,650 kids were adopted between 2017-2019, 278 of them were returned. Of the 278, 3 were outside of India, rest 275 were from India itself. The majority are specially-abled or old, or both. The older kids usually take more time in adjusting to the new environment whereas the infants are raised in that particular environment itself which represents the values, ethics, morals of the intending couple’s family.

An adoption is a devout act so it ought to be performed by individuals for a huge scope since India is a country where there is a lot of populaces and there are countless unwanted children.

While the discussion over adoption vis-à-vis surrogacy has warmed up lately, numerous child rights specialists accept that both ideologies couldn't measure up. "Surrogacy is certainly not an option in contrast to adoption and adoption is certifiably not an option in contrast to surrogacy. These two are various things. The individuals who need to go for their natural child ought to be permitted to seek surrogacy, while for the individuals who wish to adopt a child and improve one's existence, a simple and hassle-free adoption process should be facilitated.


References: [1] Central Adoption Resource Authority, Ministry of Woman and Child Development, Govt. of India, http://www.adoptionindia.nic.in/ [2]Shrimati Asoka Mukherjee Vs. Gandhi Das and Anr, (2002) 3 CAL LT 307 (HC) [3] Darshana Gupta Vs. None and Ors, AIR 2015 Raj 105 [4] Black’s Law Dictionary, Bryan A. Garner, 8th Edn. 2004, p. 4529. [5] Law Commission of India, report no. 228, need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy. [6] Baby Manji Yamada vs. Union of India and Another, (2008) 13 SCC 518 [7] ibid at 6. [8] Jan Balaz v Union of India, AIR 2010 Guj. 21.



Author- Kiran Kirti Rath

Second-year law student

Xavier Law School, XIM University, Bhubaneswar

49 views0 comments