The National & State Commission for Protection of Child Rights is constituted at National and State level under the NCPCR Act 2005 in order to give effect to India’s commitment to paramount consideration to child welfare in compliance with United Nations Child Rights Conventions (UNCRC) mandates after India signed and ratified UN Child Right Convention (UNCRC) in year 1992.
The role of NCPCR is crucial in case of protecting the rights of surrogate child was exemplified in the landmark case of Japanese surrogate baby Manaji Japanese surrogate baby Manaji year 2008, where the Supreme court of India held that commission which is the specialized authority to deal with various aspects and concerns of child rights accordingly the case of surrogate child, further the court reiterates the necessary functions of the commission as stated under the NCPCR Act as right to inquire into complaints, to take suo motu notice of matters relating to deprivation and violation of child rights, to ensure welfare of the children and to provide relief to such children and to make recommendations for promoting or to implementing the best interest of children.
Surrogacy cases & child commission :
In the case of Baby Manji , for the first time the National child commission not only assumed significance but the commission was also recognized as the appropriate forum being the specialized body to deal with child related issues and for adjudication of any rights concerning child. Accordingly , The court stated the powers and functions of the commission and finding upon these reasons, the apex court directed the petitioner to the Commission and seek action there from. This case particularly dealt with citizenship right or the basic civil political right of surrogate child and sought for issue of passport for the child among other issues. However the Commission has not issued any recommendations concerning surrogate child.
Subsequent to this case, in year 2011, Delhi Child Commission took up the case of surrogate twins born in India to a gay couple from Spain, wherein the commission raised certain key issues pertaining to rights and status of children born as a result of international surrogacy arrangements in India, the DCPCR has drawn an analogy between the international surrogacy and inter country adoption and considered the former to be a form of inter country adoption under the garb of surrogacy and brought forth the issue of assessing necessary compliance with procedures and condition laid down by CARA for the inter country adoption in light of clear laws or regulations for the surrogate child in this regard. The DCPCR mentioned about the possibilities of invoking the necessary and applicable provisions of CARA and Juvenile Justice Act and sought more consideration on this regard. It may be noted that, CARA has subsequently stated that the Surrogate children do not fall under its jurisdiction , following the averment of the CARA the issue raised by DCPCR on surrogate child constitutes a grave concern, However the DCPCR has not issued any Guidelines or recommendation or any measures to resolve!
In the recent past June 2013, the NCPCR was faced with a shocking case where an Israeli paedophile languishing in jail had availed of surrogacy in India to have children,though the NCPCR expressed concern on the same but no recommendations were issued yet again!
There has been another shaming case of baby selling or trafficking of child under the garb of surrogacy by doctor named Dr Bharat Atit running an fertility clinic in Gujarat , the doctor sold two children for eight lakhs posing as surrogate children belonging to two different intending couples respectively in Porabander , Gujarat in the year 2009. The doctor was charged with criminal case of human trafficking or illegally selling of babies , fraud, forgery and conspiracy accordingly the criminal charges under Section 373, 374, 418, 201 and even 120(B) of the Indian Penal Code have been leveled against him. The doctor has been nabbed by the crime branch of police in Ahmadabad . But there has been no action taken against the same by the Commission . It may be appropriate to mention that trafficking of human beings in is a punishable offense in India under the existing national law and international human right convention.
Identification of legally vexing issues concerning surrogate child :
It may be mentioned here that due to the special circumstances facing the surrogate children following the absence of a functional law in India as well as in other nations defining the rights of surrogate child coupled with the inconsistent surrogacy laws or lack of uniformity in surrogacy laws in different countries across the world wherein one country prohibits surrogacy and the other country permits surrogacy , under such legal dilemma , the surrogate child ‘s legal identity, status and basic rights remain questionable . Nations permitting surrogacy may grant legal recognition and legal rights to the child where as nations prohibiting surrogacy deny such rights and recognition. The surrogate child is caught in midst of these legal inconsistencies and becomes subject of long drawn court custody suits seeking for the ascertainment of their parentage, registration of birth, basic civil rights like right to nationality, citizenship, right to travel documents among others. In absence of these the surrogate children may be declared stateless and parentless which in itself is the worst form of violation of child rights .
Similarly from the above cases it appears that the there are several issues weighing against the welfare of surrogate child under surrogacy arrangement namely as the determination of parentage under inconsistent surrogacy country laws custody , issues related to custody of surrogate child , legal parentage of surrogate child , right to travel abroad, right to basic civil political rights , trafficking or baby selling under the garb of commercial surrogacy as mentioned above.
Right of Surrogate child to Parentage & Citizenship and other civil political guarantees
The first case of the Japanese surrogate child brought forth the issue of guarantee of basic political civil rights of surrogate child and the determination of legal parentage for the surrogate child in case of inconsistent inert country Laws on surrogacy, determination of this issue is significant as this may result in the worst instances of leaving the surrogate child stateless and parentless and the legal identity of surrogate child to be embroiled in the legal disputes for long drawn court proceedings !
Right of surrogate child to inter country movement ,right to safe transit , exist and arrival in other nation
The second case of a Spanish Gay couple  , questioned the right of child to inter country movement and right to safe transit , exist and arrival in other nation, in absence of any functional law on surrogacy in India providing for any applicable law of regulations on the same and it also questioned the legality of such inter country movement of surrogate children as a part of surrogacy arrangement as there is ambiguity surrounding the nature of application of existing law namely the adoption laws or JJ laws in the absence of a legislation on surrogacy .
Right of surrogate child to safe, beneficial legal custody, guardianship determination
In the third case of Israeli pedophile, raises the issue of vesting of legal custody and parentage or guardianship of the surrogate child and related the issue of assessment or eligibility of fitness to be legal parent and necessary screening by an government appointed body before commissioning surrogacy to have a child in India . The omission of the same has resulted in the worst or the gross violation of child right resulting in placing the custody of a surrogate child with a pedophile who not only attained the legal parenthood but also took the surrogate child born in India out of country with no legal action against him.
Right of surrogate child to be from trafficking
The fourth case of baby selling in the guise of surrogacy  evinces the emerging form of trafficking or baby selling under the garb of commercial surrogacy and it also indicates the limitation in the ART Bill 2010, which does not mention offense of child trafficking under the garb guise of commercial surrogacy .
These cases highlight the extreme vulnerabilities where in the basic right of surrogate child become a subject of contestation namely child’s Right to Name, Right to Nationality, Right to Family, Right to Parentage which are the core constituent of the child right to identity , life and survival enshrined the UN CRC and thereby flowing into the child commission Act.
In sum and substance , it may be appropriately stated that such denial or violation basic individual rights and civil political rights of child (as mentioned in the cases above ) and other incidental rights of surrogate child constitutes discrimination on the basis of birth which in itself is a grave violation of right to non discrimination and equal treatment guaranteed by UNCRC the and also a violation of the cardinal objective of the statute on National, State child commission laws of India, the child commission Act  where the he prime objective of the child commission Act is to give effect to the rights enshrined in UNCRC.
It is pertinent to state that the Right of a child to parentage , right to nationality  , right to inter country movement , right to responsible custody guardian in the best interest of child are guaranteed to every child under UN CRC and correspondingly there is a legal obligation on the state ratifying the same to secure these rights to child . India as a part of treaty obligation and thereafter after under its national statutory obligation under child commission act has failed to safeguarded these rights of the surrogate child.
Legal obligations of Child Commission :
National child commission , State child commission are statutory bodies created under the Statute Act 2005 and has been given broad powers , duties which are well has been expressly stated to include broad range of issues concerning power to undertake suo moto cognizance of cases concerning child rights, to examine review the existing safeguards and the factors inhibiting exercise of child rights , to look into the cases of child facing special distress or situations resulting from any particular deprivations or denials.
Commission has power to issue not only recommendations but also to suggest remedial measures in case of violation of child rights and thus to cause effective implementation of child rights. The commission has also been given an obligation as a part of international commitment to study International treaties , Conventions and to issue recommendations for its implementation. Following these mandates, it is evident that the Child Commission have a cardinal duty to promote and protect the best interest of child in all, thus there is onus to safeguarding the basic civil legal right of child which are crucial for the survival , life of child. Commission cannot over look its mandate and it’s commitment to UNRC to which Government of India has not only accepted , signed but also ratified and thereby enacted the statute and constituted these national and State Commissions for effective compliance with UNCRC.
To the contrary, it appears from the readings of the case that child commission has failed in upholding its mandate both under Child Commission Act and UNCRC. The Child Commission has so far not made use of its powers and function, the commission has not issued any recommendations despite its mandate under the NCPCR Act derived from the UNCRC, further, it may be noted that the Commission has not initiated any research study or consultation on the same till date despite its conferred powers on the same. Besides, the NCPCR in response to the RTI filed by the author has categorically stated that the Commission has nil information on Surrogate child and it has neither issued any recommendations nor conducted any study on the same as on March 2013.
Considering the novelty and particular nature of the case of surrogate child , particularly the case of transnational or inter country surrogacy arrangement, the safe inter country movement of child , the nature of regulations and other incidental issues concerning the surrogate child , the commission ought to appoint a expert group or committee to conducted any research study on the same for the purpose of issuing guidelines.
The commission ought to undertake a critical study of the ART Bill and assess the adequacy or appropriateness of the provisions of law in protecting the child welfare, there is a specific provision under the NCPCR Act for the same which imposes a legal obligation on them to undertake study of international , national laws convention and recommend beneficial measures to protect the interest of surrogate child. It also observed that the draft Assisted Reproductive ( Regulations) Technologies (ART Bill) 2010 has certain shortcomings or serious inadequacies in the surrogacy law which has failed to protect the interest of surrogate child. Some of the potent gaps that surfaced in the Bill includes the issues of parentage determination , citizenship , absence of a government appointed screening body for the intending couples, omission to mention the offence of trafficking among others . The commission ought to undertake a study on the provision of the Bill and identify such gaps in the law and suggest necessary changes in the provisions of the Bill .
End notes –
The child commission as a specialized child state functionary has statutory obligation and an onerous legal liability to particularly when the India has not only legalized after the judicial pronouncement by the apex court but identified the child commission as the specialized forum for redressal of rights of surrogate child in one of the landmark judgment. , but it the child commission has so far not made use of its powers and function, despite its mandate under the NCPCR Act derived from the UNCRC . The commission due to its non action in laying down any recommendation or invoking necessary power has failed in ensuring compliance with its mandate under the Child commission statute and under the treaty obligation of UNCRC.
Lately the Planning Commission of India had organized consultation by seeking recommendations from the various government functionaries including the national child commission in order to revise the draft Assisted Reproductive Technologies (ART) Bill, 2010 for suggesting necessary regulatory measures in the Bill. Accordingly a draft ART Bill 2013 is also proposed on the similar lines. Thus it remains interesting to observe how the child commission would make use of power and function to recommend better measures for child welfare under the Bill and better protect the interest of surrogate child.
Though the commission has come forward in many cases to support the cause of surrogate child but it has always been an ad hoc and tentative in nature, there has been no concrete recommendations issued so far which may be followed in similar case in future .
The effective use of it mandate and formulation of necessary recommendation is a much needed step towards the protection of surrogate child rights.
Author’s Name : Sonali Kusum
Academic Affiliation: B.A LLB, LLM (Human Rights), UGC NET , Ph. D Research scholar at National Law School Bangalore.
Professional Affiliations : Ex Asst. Professor , School of Law, Tata Institute of Social Sciences, Mumbai. One year professional experience as Researcher at Centre for Child and Law , NLSIU Bangalore.
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