Search

PREGNANCY WITH A PURPOSE: VIABILITY OF SURROGACY LAW IN INDIA


“You have never really lived until you have done something for someone who can never repay you.”- Mother Teresa

A woman has been naturally bestowed with a beautiful power and capacity to procreate a life within her. Parenthood is the most cherishing experiences of one’s life. Societies throughout the world have always given prime importance to the institution of family. However, there exists a large section of the society which is unable to fulfil their dream to bear children owing to various medical reasons, like infertility. Till recently, the most sought solution for childless couples was adoption. But, with the advancement in medical science there has been a lot of relief to such individuals and they have been provided with other options through which they can sire a genetically related child. Surrogacy has thus emerged as one of the most efficient methods to cater to both, biological and social infertility.

Meaning, Concept & types

The term ‘surrogate’ finds its origin from a Latin word ‘surrogatus’ meaning ‘one that serves as a substitute’. The first mention of surrogacy can be found in archaic biblical tales where, Hagar, a housemaid agreed to conceive and bear a child for Abraham and Sarah, as Sarah had crossed age and was thus barren. Therefore, a standard definition of Surrogacy would be “A practice whereby a woman agrees to conceive and bear a child for another person or persons, and intends to deliver the baby to the natural parents, terminating all of her parental rights subsequent to the birth”. If such a lady is compensated for carrying and delivering the child then this arrangement is called a ‘commercial surrogacy’, else such an arrangement is often referred to as an ‘altruistic surrogacy’.

Surrogacy can be of three types, namely, traditional, gestational and donor surrogacy. Traditional surrogacy involves the artificial insemination of the surrogate mother by using the sperm of the intended father but the egg of her own in the child she is carrying for the intended parents. Gestational surrogacy, on the other hand, involves the creation of an embryo externally which is then implanted into the womb of the surrogate who carries it to the term. Thirdly, there is donor surrogacy wherein there is no genetic relationship between the child and the intended parents as the surrogate is inseminated with the sperm, not of the intended father, but of an outside donor. However, this age-old practice, having its traces in ancient mythologies and having been a source of joy and hope to many incompetent couples unable to bear children, has stirred serious controversy in the past few decades.

Commercialisation of surrogacy in India

In 2002, India legalised commercial surrogacy, which promoted medical tourism among foreigners, making India the ‘hub of surrogacy’. People across the globe came in search of Indian mothers who would rent her womb for having their child. Over the years, with unregulated system and the cost-efficiency, India emerged as world’s surrogate capital, hosting thousands of reproductive labour. The prime reason this is extreme poverty, which made poor Indian women provide surrogacy services for money or other essential commodities. However, such arrangements gradually developed an ugly and exploitative side. The unregulated business of surrogacy not only encouraged baby selling but also diminished the dignity of women's reproductive capacities. Surrogate mothers were illtreated, they were hired by illegally run agencies, and denied payment in case of unexpected complications or a miscarriage.

The gravity of all these issues was raised in the Supreme Court in various cases:

Baby Manji Yamada vs Union of India [1]

In this case, Baby Manji Yamada was a child borne by an Indian surrogate mother for a Japanese couple who before a month of the child’s birth separated, leaving the child’s future in dark. The biological intended father, wanted take the child to Japan. However, the legal framework did not provide legislation for such a case nor did the Japanese government permit him to bring the child back home. Thus, the Supreme Court of India had to intervene and the child was allowed to leave the country with her grandmother. The biggest impact of the decision has been that it spurred the government of India to enact a law regulating surrogacy.

which increased the international confidence in going in for surrogacy in India.

Jan Balaz vs Anand Municipality [2]

In this case, the Gujarat High Court ruled that the birth certificate of the child born through surrogacy will carry the name of the surrogate mother instead of the biological mother. In the present case it was also decided that the child would be granted a passport of India which certified him as an Indian Citizen and in turn Indian surrogate had to give the child to German couple in adoption, who had availed the services of Indian surrogate.

During the hearing of the case, the Supreme Court felt a grave need on the subject that made way for the proposal of the bill of Parliament which brought the legislation for the ban of commercial surrogacy into existence ruling out the foreign citizens from approaching Indian surrogates.

History of Surrogacy law in India

In light of the above-mentioned issues, legislation to regulate surrogacy in the country came in to force:

In 2005, the Indian Council of Medical Research (ICMR) also issued guidelines to regulate surrogacy practices according to which surrogate mother would be entitled to monetary compensation, the amount of which would be mutually agreed upon by the intended parents and the surrogate mother. The guidelines also mentioned that the surrogate mother could not donate her own egg for the surrogacy and must relinquish all parental rights related to the surrogate child.

The Union Home Ministry, in 2012, suggested an amendment to the 2002 surrogacy law, banning foreign nationals, especially same-sex couples and single parents in India. Further, the 228th report of Law Commission of India recommended prohibition of commercial surrogacy while only permitting ethical altruistic surrogacy by enacting suitable laws.

In 2016, Surrogacy (Regulation) Bill was presented in the parliament. The Bill provided for the establishment of national and state-level surrogacy boards. Furthermore, only heterosexual Indian couples, legally married for five years, could avail surrogacy, with precondition of proven fertility validated by the recognized medical practitioner. This bill lapsed in the Lok Sabha on account of some flaw in the laws.

The Surrogacy (Regulation) Bill was reintroduced in 2019 and was passed by the Lok Sabha and referred to the Rajya Sabha after which it was approved with a few changes by the select committee as the Surrogacy (Regulation) Bill, 2020. The Bill puts a blanket ban on commercial surrogacy and limits altruistic surrogacy, bans on the overseas, foreigners, unmarried couples, single parents, live-in partners, and gay couples from commissioning surrogacy. The following are the important features of the Bill:

  1. The bill allows for any “willing” woman to be the surrogate mother, not necessarily a close relative.

  2. It now includes live-in couple, divorced women, widows, non-resident Indians (NRIs), persons of Indian origin (PIO), overseas citizenship of India (OCI) etc.

  3. The definition for period of proven infertility was reduced to one year instead of five years.

  4. It allows ethical altruistic surrogacy to the prospective infertile Indian married couple between the age of 23-50 years for females and 26-55 years for males.

  5. It proposes to regulate surrogacy by establishing a National Surrogacy Board and State Surrogacy Board at the central level and states level respectively.

  6. The bill also provides for an increased insurance coverage for surrogate mothers from 16 months to 36 months.

  7. The Bill makes it mandatory for the couple to obtain a certificate of essentiality and also a certificate of eligibility for surrogacy.

  8. The bill does not permit selection of the sex of the baby.

  9. The bill prohibits commercial surrogacy including sale and purchase of human embryo and gametes.

  10. It gives the child all the rights as that of natural born child and prohibits the parents from abandoning the child under any condition.

Viability of the Surrogacy Bill (2020)

Positives:

The Surrogacy Bill of 2020, has, to an extent, improved the conditions of the practice of surrogacy. It takes care of the several concerns raised by the 228th Law Commission report. Now, there are proper regulated laws and guidelines that every intended parent and surrogate needs to abide by.

The Bill not only clarifies who all can explore this option but, also makes the process stringent by requiring the candidates to submit certificates of eligibility, verified by a known medical practitioner to reduce the scope for several illegalities that have occurred in the past.

The bill aims to protect the rights of the surrogate by ensuring the fulfilment of the necessary duties of the candidates. It also provides for structured provisions for protecting the rights of the child born out of surrogacy. The bill mentions compulsory registration of surrogacy clinics in order to keep a check on illegally running racquets. Further, it also requires the surrogacy to not be sex selective in nature to prevent female foeticide.

Criticism:

While the advantages of the Bill as mentioned above are limited, the disadvantages seem multifaceted.

Prohibiting Commercial Surrogacy:

Putting a blanket ban on the practice of commercial surrogacy does not mean it shall cease to exist in the years to come. Time and again it has happened that when the government has forbidden something, the mal-practice begins to exist away from the public eye. For example, the Government only allows exchange of organs through donation however, desperate people in the greed of money, exploit the vulnerability of sellers by running the black market for sale of organs away from the government watch. Similarly, putting a ban on commercial surrogacy shall only create a new parallel market where the practice will continue illegally, exploiting the rights of the surrogates and questioning the ethicality of the entire concept.

Cause of Discrimination:

The bill mentions about who can be a surrogate and who all can avail the option of surrogacy. It only allows surrogacy to married couples and to that extent excludes LGBTQ couples, Foreigners, live-in couples, and single, divorced or widowed parents, thereby, criminalising their right of reproductive autonomy, denying them the opportunity to have kids.

Lack of voice of surrogates:

The bill expects women who go through the strenuous process reproductive labour for another couple to act selflessly and not even except any kind of monetary benefit from it. Further, it also ignores the fact that the women who opt for being surrogate mothers belong to economically vulnerable backgrounds and for them, surrogacy is a source of livelihood. A complete ban on commercial surrogacy deprives them of their livelihood.

The proposed is also highly divorced from the Indian social reality as it stands in violation of the Part III of the Constitution-

Article 14:

The article guarantees equality of all before law, the surrogacy bill however places conditions and restrictions on people availing the option of surrogacy thereby disqualifying candidates based on their nationality, sexual orientation, age or marital status with no reasonable classification. Under Article 14 the test of reasonable classification was introduced in order to determine the legal validity of a law and Surrogacy bill does not qualify the test of reasonable classification and therefore amounts to class legislation.

Article 21:

Article 21 of the Constitution enshrines the right to reproductive autonomy inclusive of the right to privacy, giving a person right to their own body as well as the right to procreation and parenthood. Under the Surrogacy Bill, 2020 government however has dictated the entire phenomenon through one perspective without leaving any space for a woman to independently act as a surrogate or the parents from choosing the mode of parenthood i.e. whether to have a child born naturally of otherwise. Thereby, the bill strongly stands in violation of Article 21.

Conclusion

In various countries like the United States and Argentina, surrogacy requests are decided by independent surrogacy committee whereas, in countries like the UK, Netherlands, Ireland, Denmark, Belgium, South Africa, Australia, Canada and Greece, only altruistic surrogacy is allowed. In France, Germany, Spain, Sweden, Italy and Iceland, surrogacy is banned in all forms whereas, countries like Russia, Ukraine, and Thailand legally allow commercial surrogacy.

The Surrogacy bill (2020) bill can be seen as the beginning of a much-required legislation in India. In its entirety, the bill can be said to be a combination of both positives and negatives. However, there still exist certain shadowed areas that need improvement. After all, no law is completely perfect that is why the process of amendments is required in the first place. The ultimate goal is always to attain peace and equality for everyone alike.

References

  1. AIR 2009 SC Page 84

  2. Special Civil Application No. 3020 of 2008

  3. “The emerging laws relating to surrogacy: a procreational right for single parent transgenders and foreigner”https://www.scconline.com/blog/post/2018/04/10/the-emerging-laws-relating-surrogacy-a-procreational-right-for-single-parent-transgenders-and-foreigners/ ; accessed on 27th May, 2021 at 4:35pm

  4. “A womb of one’s on: Privacy and Reproductive Rights” https://www.epw.in/engage/article/womb-ones-own-privacy-and-reproductive-rights ; accessed on 29th May, 2021 at 8:12pm

  5. “The new surrogacy law in India fails to balance regulation and rights” https://blogs.lse.ac.uk/humanrights/2016/11/23/the-new-surrogacy-law-in-india-fails-to-balance-regulation-and-rights/ accessed on 5th June, 2021 at 5:29pm

Submitted by: Amisha Arora

Course: B.com LL.B (3rd year)

Institution: UILS, Panjab University


7 views0 comments

Recent Posts

See All

SURROGACY LAWS IN INDIA

Surrogacy: Surrogacy is an arrangement, often supported by legal agreement, whereby a lady (the surrogate mother) agrees to connect a toddler for one more person or persons, who will become the child'

ROLE OF DIFFERENT FUNCTIONARIES UNDER THE CODE

INTRODUCTION The law is seen as “establishing a “government” with a well-equipped office with power over the problem. In order to maintain and implement the standards set out in the law, the law’s cha