INDIA-A DESTINATAION FOR INTERNATIONAL SURROGACY- A Superlative Hub for Wombs on Rent – By Chirag Sharma
Abstract The paper being presented studies practice of surrogacy as a social institution with its form varying over time and critically analyzes the adaptability of law to such changes. It generally talks about the growth of commercial surrogacy overtime as an international market and in particular it provides an analytical view about how India is expanding as a leading and central destination for international surrogacy. Firstly, it views through the lens, the changing patterns of surrogacy arrangements overtime, from ancient times to modern era for is it necessary to know the root of the cause before its examination. It explains the evolution of international surrogacy as a consequence of increased globalization. Secondly, it presents a close view of the legal problems arising out of such agreements with the help of leading cases. Thirdly, it throws light on India as a centre for international surrogacy and an effort has been made to go through the reasons for which India is a suitable option for the same. Fourthly, seen through the human rights perspective with due regard to the mother and child, it presents appealing implications of surrogacy agreements mainly in Indian context, Fifthly, it tells about the much needed requirement of a legislation with regard to commercial surrogacy, and provides various steps taken in India pertaining to curtail the problems arising out of international surrogacy agreements. Lastly, some recommendations based on empirical research as well as with regard to the lacunas which are left in the proposed enactment in the Indian parliament have been provided. Keywords: surrogacy, commercial surrogacy, international surrogacy, globalization, legal problems, implications, legislation, lacunas, recommendations *Research paper, entitled “India: a destination for international surrogacy” ** The copyrights of this research paper is owned by Chirag Sharma, IVth semester, BA, LLB (H), University School of Law and Legal Studies. Introduction In simple terms, surrogacy is a method of reproduction where a woman (called a surrogate mother) becomes pregnant and gives birth to a baby in order to give it to ‘someone’ who cannot have children, and that ‘someone’ may be a couple or single person. It may be in return for a payment (commercial) or without payment (altruistic). In case of a commercial surrogacy, the intending parents may also be called as commissioning parents. There are two forms of surrogacy traditional and gestational. In traditional surrogacy the egg of the surrogate mother and the sperm of the intended father or sperm donor are used and hence the child is genetically related to the surrogate mother. Since 1990 IVF (in vitro fertilization, where the female egg is fertilized outside her body with a male sperm) has provided for the gestational surrogacy to become more prominent in which the surrogate mother is not genetically related to the child and either the egg of a donor or the female half of the intending couple is fertilized by the sperm of male half of intending couple or a donor outside the body and implanted in surrogate’s womb. The legal complications in case of gestational surrogacy are more as three mothers, that is intending mother, surrogate and egg donor get involved with the child in case of a egg donated by the third party. People generally opted for such an arrangement because of infertility but now with increase in same sex marriages and single parenthood, such arrangements provide a wonderful option to get a child. International surrogacy is an advanced form of surrogacy in which the couple or single persons who are intending to be parents travel abroad which maybe because of the lesser cost of such arrangements in foreign countries or because their countries either have strict laws or do not approve of such arrangements, this practice may be simply called as ‘surrogate outsourcing’. India is one such country which attracts many foreign nationals because of the low cost and effectiveness combined with legalization and altogether absence of any law pertaining to the matter. Commercial and International surrogacy practices in India are linked with the exploitation of the poor women and various legal consequences. Even the proposed enactments lack many technicalities to that effect. Surrogacy-changing patterns over time “Any sufficiently advanced technology is indistinguishable from magic” —Arthur C .Clarke The practice of surrogacy is even referred to in antiquity. Babylonian law and custom allowed this practice and thus giving an option to the infertile women to avoid an inevitable divorce. “Mythological surrogate mothers are well known in India too. Yashoda played mother to Krishna although Devki and Vasudeva were biological parents. Likewise, in Indian mythology Gandhari made Dhritrashtra the proud father of 100 children, although he had no biological relationship to them”[1]. All these practices were an example of altruistic surrogacy. With advancement of technology and developments in fields of medicine, social customs, law etc. modern commercial surrogacy came into practice. The landmark achievement in this field came in 1978 with the birth of first ever test tube baby, Louise Brown, who was the product of first successful in vitro fertilization (IVF) procedure. Since then the practice of commercial surrogacy has been on a constant rise so much, so that the exact estimate of children born out of such arrangements, on a world scale, today is almost an impossible task. With advancement in the field of Information Technology and increasing efficiency of the internet, globalization is becoming more prominent. The time has come where we can sit back at our home in India and engage in video chat with our friend in USA, the time has come where most of the transactions pertaining to day to day activities can easily be done via internet and the time has come where the couple intending to become parents are looking forward to take advantage of these same processes which has given rise to surrogacy transcending the national borders. International Surrogacy is becoming a constantly growing industry since the beginning of the 21st century and has witnessed a crystal clear boom because of varying approaches of different nations on the issue. For example surrogacy and
SINGLE COLOUR MARK- ITS REGISTRABILITY IN THE UNITED STATES AND UNITED KINGDOM
Single Colour Mark Registrability in the United States and United Kingdom – BY SACHIN MISHRA Single Colour Mark is one of the important categories of non-traditional trademarks, where a single colour is used to identify and distinguish the goods or services of a particular business from others in the marketplace.. Non-traditional trademark, also known as a non-conventional trademark is any type of trademark which does not belong to a pre-existing, conventional category of trademarks, and which is often difficult to register, but which may nevertheless fulfill the essential trademark function of uniquely identifying the commercial origin of products or services. The concept of non-traditional trademarks is an innovative concept as it introduces an entirely new family of marks discrete and distinct from the traditional trademarks. A trademark ordinarily comprises of a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or any combination thereof and a general perception about it is that it is a static, two-dimensional word, design or logo used to identify a product or service . But this family of Non-traditional trademarks on the contrary comprises of a number of different types of trade marks which do not belong to the conventional category, of words, numerals, pictorial and logo marks, or any combination of these marks, and yet serve the essential purpose of a trade mark by identifying the products or services as being from a particular undertaking. Non-conventional trademarks may therefore be visible signs (eg. colours, shapes, moving images, holograms), or non-visible signs (eg. sounds, scents, tastes). As such, non-traditional trademarks comprise of marks based upon sound, texture, three-dimensional shape, taste and smell and following members comprise it: 1. Colour marks 2. Sound marks 3. Smell/Scent/Olfactory marks 4. Shape marks 5. Moving Image marks 6. Holograms 7. Gesture marks 8. Taste marks/Gustatory marks 9. Feel marks/tactile marks 10. Celebrity marks 11. Digital marks 12. Trade Dress These trademarks are exceptional and unique in nature because unlike their traditional counterparts, they are sometimes non-ocular eg: sound, smell, feel and taste; some are not static like moving image marks and digital marks; and others such as gestures and holograms, which have revolutionized both the fields of trademark law and marketing. Some of these have been more widely accepted in recent times as a result of legislative changes and the broad-mindedness of the judiciary, which have cumulatively led to the expansion of the definition of the term ‘trademark’. The definition of the term trademark varies from nation to nation. A few countries like United States of America, most countries forming the European Union like Germany, the Benelux countries, United Kingdom, etc. have given recognition to non-traditional mark thereby including colours, sounds, smells, etc. in their definitions. Some countries on the contrary have chosen to not make amendments to their trademark laws to include these marks and are still restricted only to a static, two-dimensional trademark. The International scenario on the contrary is rapidly changing. International treaties, Documents, Directives dealing with intellectual property, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights, NAFTA (North America Free Trade Agreement), the EU Harmonization Directive and the EU Regulations, are giving recognition to non-traditional trademarks, in one form or the other. Besides being internationally recognized, non-traditional trademarks have been accorded the same status by the national laws of various nations, through both legislations and the efforts of the judiciary as has been briefly discussed above. Like for instance in the United Kingdom, colours have been granted trademark protection when used in specific, limited contexts such as packaging or marketing. The particular shade of turquoise used on cans of Heinz baked beans can only be used by the H. J. Heinz Company for that product. In another instance, BP was granted the exclusive right to use green on signs for petrol stations. In the United States also, it is possible, in some cases, for colour alone to function as a trademark. Originally, colour was considered not a valid feature to register a trademark Leshen & Sons Rope Co. v. Broderick & Bascom Rope Co. Later, with the passage of the Lanham Act the United States Supreme Court in the case of Qualitex Co. v. Jacobson Products Co, would rule that under the Lanham Act, subject to the usual conditions, a colour is register able as a trademark. Other marks like sounds are register able in many countries. Although these possible trademarks have not yet reached a high acceptance among lawyers, jurists and the courts, they are of common use in marketing and practitioners are familiar with the sensory signs as an essential part of an innovative trademark and product strategy. Thus all sensory signs such as audible, visual, gustatory, tactile and olfactory have become part of such developments. These non-traditional trademarks go beyond the simple words and designs that businesses have long used to distinguish their goods from those of other companies. Some examples of registration of non-traditional trademarks are like the floral scent of thread, the colour pink has been registered for insulating material and a pattern of chimes has been allowed registration for the broadcasting of television programmes. My third issue deals specifically with the Colour Trademarks and it has been explained in detail under the subsequent sub-heads. Colour Trademarks Due to the invention of colour television and the new possibilities in the print industry, colour has increased in importance in both the advertising and the packaging industry. Businesses pay more attention to colour as it can have more effect on sales because people have colour preferences and they also sometimes associate it with their culture. For instance the colour black represents evil in western countries, red is a symbol of luck and happiness in China, etc. Thus colours and colour combinations play an important role in distinguishing products in the marketplace, and are particularly useful where consumers do not easily understand traditional trademarks. This could be due to low literacy rate in that area, or because of the reason that the traditional trademark