Saveetha University hosted its Third Jus Amicus National Moot Court Competition an event of its Decennial Year Celebrations.

The Law Commission took up the matter suo motu and opined that active legislation intervention is required to facilitate correct uses of the assisted reproductive technology 

and relinquish the cocooned approach to legislation of surrogacy. The need of othe hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones. The draft Bill prepared by the Indian Council for Medical Research (ICMR) is full of lacunae, nay, it is incomplete. The Law Commission, by this Report, recommended that the following, inter alia, be included in the proposed legislation;----

Speech of Dr. JUSTICE AR. LAKSHMANAN

(  Third Jus Amicus National Moot Court Competition,Saveetha University)

Saveetha University hosted its Third Jus Amicus National Moot Court Competition
an event of its Decennial Year Celebrations.
----------------------------------------
Saveetha School of Law, Saveetha University hosted its Third Jus Amicus National Moot Court Competition (10.04.2015 -12.04. 2015)
an event of its Decennial Year Celebrations. The event commenced at 4:30 P.M.with the lighting of the lamp. The Welcome Address was
delivered by Director of Saveetha School of Law, Prof. Dr.R.Anitha Rao.Chief Guest for the day, Dr.Justice A.R.Lakshmanan, Former Judge,
 Supreme Court of India, Former Chairman Law Commission of India gave the inaugural address. The Vice-Chancellor, Dr. Mythili Bhaskaran,
 while addressing the gathering emphasized that the budding advocates should put in more effort, hardwork, to become successful in their career.
She also stressed that moot court competition is an experience for the budding advocated to realize and put commitment and sincerity in one’s profession.
 The other dignitaries include Head of various Departments, Registrar, Principal and Vice-Principal.

The problem selected for the moot is based on Surrogacy.  Saveetha School of law is to kindle the lawyers of tomorrow on researching
 such dry upcoming areas of law thereby motivating the young minds to add more colours of pride and honour to the legal fraternity in future.

Chief Guest while addressing the guests and the participants from all over India laid emphasis on the fact that legal curriculum should be
 adequate enough to equip the law students to face emerging challenges and issues relating to human rights. He congratulated the organizers
for choosing a very relevant topic to deliberate upon. He briefed up about his contribution that as being a Chairman of the Law Commission of
 India he had submitted 32 reports to the Government of India which includes the 228th report on Surrogacy.

  Twenty Two teams of students from various national law schools, law universities and colleges from different States are participating in the event.
 The prelims and quarterfinals will be held on the second day which will be judged by designated Senior Counsels, Legal Luminaries and Academicians from
 various National Law Universities.  The final which is scheduled for Sunday (12.04.2015) will be presided by Judges from Madras High Court. 
 The vote of thanks was delivered by Assistant Professor, Convenor of the competition Miss.Jaya sheela. The function came to an end with the dignitaries
 rising for the National Anthem.

---------------------------------------------------
SURROGACY-Speach of Dr. JUSTICE AR. LAKSHMANAN

          I congratulate the Organizers of this “3rd Jus Amicus National Moot Court Competition 2015” for choosing the very relevant topic viz. SURROGACY to deliberate upon.
          In fact, as Chairman of the Law Commission of India, I have submitted 32 reports to the Government of India which includes the 228th report.  The Law Commission stressed upon the need for legislation to regulate Assisted Re-productive Technology Clinics as well as rights and obligations of parties to a SURROGACY.
The legal issues related to SURROGACY are very complex and need to be addressed by a comprehensive legislation. Surrogacy involves conflict of various interests and has inscrutable impact on the primary unit of society.
The Law Commission took up the matter suo motu and opined that active legislation intervention is required to facilitate correct uses of the assisted reproductive technology and relinquish the cocooned approach to legislation of surrogacy.  The need of othe hour is to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial ones.  The draft Bill prepared by the Indian Council for Medical Research (ICMR) is full of lacunae, nay, it is incomplete.  The Law Commission, by this Report, recommended that the following, inter alia, be included in the proposed legislation;

i)        The legislation itself should recognized a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
ii)       A surrogacy contract should necessary take care of life insurance cover for the surrogate mother.
iii)      A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
          The above subject was taken upon by the Law Commission suo motu for study.  The Law Commission suggested most important points in regard to the rights and obligations of parties to a Surrogacy and rights of the Surrogate child.
          The proposed legislation should include have been given in said the Report.
The words Surrogacy has its origin in Latin ‘surrogatus’, past participle of ‘surrogare’, meaning a substitute, that ie, a person appointed to act in the place of another.  Thus a surrogate mother is a women who bears a child on behalf of another woman, either from her own egg or from the implantation of her womb of a fertilized egg from other woman.  According to the Black’s Law Dictionary, surrogacy means the process of carrying and delivering a child for another person.
The Law Commission has discussed the legal and moral issues and also discussed about some of the important case laws on the subject.  Indian Baby M. Case is a very interesting case.
Baby Manji Yamada v. Union of India concerned production/custody of a child Manji Yamada given birth by a surrogate mother in Anand, Gujarat under a surrogacy agreement with her entered into by Dr. Yuki yamada and Dr. Ikufumi Yamada of Japan.  The sperm had come from Dr. Ikufumi Yamada, but egg from a donor, not from Dr.Yuki Yamada.  There were matrimonial discords between the commissioning parents.  The genetic father Dr. Ikufumi Yamada desired to take custody of the child, but he had to return to Japan due to expiration of his visa.  The Municipality of Anand issued a birth certificate indicating the name of the genetic father.  The child was born on 25.7.2008 and moved on 3.8.2008 to Arya Hospital in Jaipur following a law and order situation in Gujarat. The baby was provided with much needed care including being breastfed by a woman.
The grandmother of a baby Manji, Ms Emiko Yamada flew from Japan to take care of the child and filed a petition in the Supreme Court  under Article 32 of the Constitution.  The Court relegated her to the National for Protection of Child Rights constituted under the Commissions for Protection of Child Rights Act, 2005.  Ultimately, baby Manji left for Japan in the care of her genetic father and grandmother.
As already discussed, the legal issues related with Surrogacy are very complexes and need to be addressed by a comprehensive legislation.  Indian Council for Medical Research (IMCR) has come out with a draft Assisted Re-Productive Technology Regulation Bill and Rules 2008.
The draft Bill prepared by ICMR is full of lacunae, nay, it is incomplete.  However, it is a beacon to move forward in the direction of preparing legislation to regulate not only ART clinics but rights and obligations of all the parties to a surrogacy including rights of the surrogate child.
The Law Commission has stated that
1)      Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
2)      A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
3)      A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
4)      One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship.  Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced.  In case the intended parent is single, he or she should be a donor to be able to have a surrogate child.  Otherwise, adoption is the away to have a child which is restored to if biological (natural) parents and adoptive parents are different.
5)      Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
6)      The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
7)      Need to privacy of donor as well as surrogate mother should be protected.
8)      Sex-selective surrogacy should be prohibited.
9)      Cases of abortions should be governed by the Medical Termination of Pregnancy Act, 1971 only.
The Law Commission as stated above have recommended accordingly to the Government of India which is still pending before the Law Department of Government of India and not seen the light of the day.  Since the surrogacy is the topic selected by your School of Law, I do not need to go into the merits of the ‘Moot problem’ which is for the participants to discuss in the conference.

Dr. JUSTICE AR. LAKSHMANAN