- By Sonali Kusum
- Assistant Professor ,TISS, Mumbai
The Surrogacy Bill 2016 and the recent Maharashtra State Commission for Protection of Child Rights ( MSCPCR) is silent on the fundamental right of child, that every infant including surrogate child born of surrogacy has right to breast feeding or similar substitutes in the interest of early growth, survival and development of child. The MSCPCR issued guidelines this month on regulation of surrogacy for protection of interest of child born of surrogacy, the surrogate mother and to check any malpractices but the commission guidelines does not address the same. Considering the commission is a specialized body constituted under CPCR Act 2005 with the specific mandate to promote the best interest of child through its recommendations following review of existing legislations, policy, such oversight by commission is a glaring omission.
The issue of breast feeding for child born of surrogacy is of substantial significance as the child born of surrogacy have reportedly weaker healthas they are usually born premature,underweight and more prone to health risks therefore these children need special medical care. This has been evident in many cases in Baby Manji Vs Union of India, where the Japanese surrogate child Baby Manaji was born premature and moved to ICU immediately at birth, the child was breastfed by surrogate mother at the IVF clinic in Gujarat for improving health of child.[Para 2 , (2008) 13 S.C.C. 518.]
In the absence of this crucial health entitlement, the child born of surrogacy is deprived fromthe most significant nutrition leading to hampering ofearly growth and development of child and exposing the surrogate child to risk of infant mortality and other health infirmities.
The World Health Organization (WHO) Infant and young child feeding Fact sheet 2016 states that early initiation of breastfeeding within an hour after birth is crucial to protection ofhealth,survival , life of newly born child preventing infant mortality rate (IMR). On similar lines, the Indian constitution under directive principles of state policy provides for “children to be given facilities to develop in a healthy manner” [ Art 39 (f)]. Following India‘s ratification of UN child right convention (UNCRC) 1989, India as a state parties is directed to ensure primary health care and to diminish infant and child mortality. The Indian statutory laws namely the Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 amended in 2003 , The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, provides for substitutive means for the same.
The supreme court of India in People’s Union for Civil Liberties ( PUCL) vs. Union of India [W.P.(C) 8853/2008 ], Laxmi Mandal vs Deen Dayal Harinagar Hospital[W.P.(C) Nos. 10700 of 2009] held that “motherhood and childhood are entitled to special care and assistance. The court has emphasized on importance right to health of the infant child andrecommended initiation of breastfeeding to the newborn within one-hour of delivery and its continuance till 3-6 months.
Some of the comparative foreign legislations, namely theThailand surrogacy law 2014, proposed that the surrogate mother may be permitted to breastfeed the child for at least three months, even though the legal parentage vests with the couple commissioning surrogacy. The New South Wales Surrogacy Act 2010, states that “the best interests of the child of the surrogacy arrangement are paramount with due significance on health of child.”
Some of the possible suggestions to be included in the surrogacy bill as well as the Child commission guidelines towards the above mentioned.
- Counselingthe intending couple commissioning surrogacy on options as hormonal treatment for inducing lactation in the intending mother for breastfeeding the child born of surrogacy.
- Informing the intending couples for procuring substitute milk as human milk banks, breastmilk substitutes or supplements for the surrogate child.
- The surrogacy bill 2016 may refer to the Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act 2003 as the available alternatives for breastfeeding of child born of surrogacy and incorporate relevant provisions on human milk bank, substitutes as suitable to meet the health needs of child.
- Imposing obligation on ART clinic to ensure availability of human milk bank or breast feeding substitutes to be provided to the surrogate child immediately at birth.One of the best practice in this regard is being followed at India’s premiere fertility clinic, Akanksha IVF Centre at Annand in Gujarat has set up a human milk bank to provide breastmilk free of cost. It must be noted that the banked human milk is much superior, beneficial health alternative over other breastmilk substitutes or supplements in strengthening immunity, checking infant mortality.
It is suggested that the Indian surrogacy Bill may consider these safeguards for necessary health protection, healthy growth of child born of surrogacy.