Surrogacy and Adoption: medical and legal options for single or separated men


“Life without wife, maybe; life without baby, never”

Single or separated Men may like to have kids without a female partner for the following reasons:-

  1. They do not like the trouble and legal consequences of getting married or remarried and yet desire having children.

  2. Litigation have taken years and finally when they have got divorce, they are too old to marry a fertile woman. The figure below shows fertility among women drop rapidly after 35 years of age, and by 45 years of age it is practically zero in females. Males are fertile till their old age, even though age affects quality and quantity of sperm.

Two options available to single or separated men for getting children without a female partner are:-

  1. Through surrogacy

  2. Through adoption.

The surrogacy process is more attractive as it enables the parent to be the genetic parent of the child.

There are two types of surrogacy arrangements: - gestational surrogacy and traditional surrogacy.

Gestational surrogacy arrangements, means the gestational carrier has no genetic connection to the child. Through in vitro fertilization (IVF), embryos are created in a lab and are transferred into the surrogate mother’s uterus.

In a traditional surrogacy arrangement, a surrogate becomes pregnant with the use of her own eggs.

In India, Surrogacy in Commercial form is formally legalized with the Supreme Court judgment of Baby Manji Yamanda Vs Union of India and reiterated in Jan Balaz vs Anand Municipality judgement. Subsequent to this judgement there has been a draft ART Bill which legalized commercial surrogacy in India and other legal instruments.

Surrogacy is regulated in India under these legal instruments as following:

1. Indian Council of Medical Research (ICMR) Guidelines 2005,

2. Assisted Reproductive Technology (Regulation) Bill 2010, Draft Bill awaiting enforcement

3. Home Ministry Regulations on Surrogacy, January 2013 whereby Indian missions and foreigners regional registration offices (FRRO) have been instructed not to grant visa to couples intending to visit India for surrogacy.

However the new Surrogacy (Regulation) Bill, 2016 limits surrogacy as an option only for married couples who cannot have children. Single Men/ NRIs/ Gay couples have been excluded from having child through surrogacy. The bill is under consideration of the parliament and yet to become a law.

The main points of the bill are:-

  1. Surrogacy is an arrangement whereby an intending couple commissions a surrogate mother to carry their child.

  2. The intending couple must be Indian citizens and married for at least five years with at least one of them being infertile. The surrogate mother has to be a close relative who has been married and has had a child of her own.

  3. No payment other than reasonable medical expenses can be made to the surrogate mother. The surrogate child will be deemed to be the biological child of the intending couple.

  4. Central and state governments will appoint appropriate authorities to grant eligibility certificates to the intending couple and the surrogate mother. These authorities will also regulate surrogacy clinics.

  5. Undertaking surrogacy for a fee, advertising it or exploiting the surrogate mother will be punishable with imprisonment for 10 years and a fine of up to Rs 10 lakh.

The other option available is adoption. According to the Juvenile Justice Act that was amended in 2006, adoption means, “The process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached with the relationship.”

Indian citizens can adopt in India under three major legislations: the Hindu Adoption and Maintenance Act of 1956, the Guardians and Wards Act of 1890 and the Juvenile Justice (Care and Protection) Act of 2000, amended in 2006.

Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt. The adoption is under the Hindu Adoption and Maintenance Act of 1956.

The Islamic term for what is generally called adoption is kafala. Adoption is not prohibited in Islam. What is unlawful is to attribute one’s adopted child to oneself, as if there is a biological relationship. This is because Islam seeks to safeguard biological lineage. Hence a guardian/ward role is given to adoptive parent. Muslims, Christians, Parsis and Jews in India usually go for guardianship of a child through the Guardians and Wards Act, 1890.

In India all adoption issues are handled by the Central Adoption Resource Authority (CARA), an autonomous body governed by the Ministry of Women & Child Development.

The only condition which is specifically required for a single male to adopt a child are:-

  1. The adopting male must be 25 years old

  2. Earning enough to give a standard life to the child

  3. Mentally sound

  4. Is not suffering from any serious disease

Under Hindu Adoption and Maintenance Act - if the adopting male already had a male child, adopted or biological, he cannot adopt another male child, and vice versa for female child.

Hence we see that Indian males can still hope to be fathers even though they are averse to marriage are single or separated.

About the author:

Amartya Talukdar has Masters in engineering from IIT (BHU) Varanasi. He is a Men's Rights Activist and a blogger, having interest in various fields.

#AmartyaTalukdar #Surrogacy #Adoption #Fathersrights

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