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's parent after birth. People may seek a surrogacy arrangement when pregnancy is medically impossible, when pregnancy risks are too dangerous for the intended mother, or when one man or a male couple wish to possess a toddler. Surrogacy is taken into consideration in every of the varied Assisted Reproductive Technologies (ATR).
Surrogacy is also a subject of debate for several within the fields of legal, social, ethical, and many of such others. It contains very conflicting situations because some people favor it, while many oppose it also because the child born through this process may have accessibility, but not respectability within the society nowadays also. As per Black law’s dictionary, the word “surrogate” has its origin within the Latin word ‘surrogatus’, meaning a ‘substitution or replacement’ i.e., someone appointed in place of another. The practice of surrogacy is ancient and is known to most countries and societies. Surrogacy is assessed in some ways like – Traditional surrogacy, Gestational surrogacy, Commercial surrogacy, and Altruistic surrogacy.
In traditional surrogacy, the child is thereby genetically related to both the mother, one who provides the egg and also the intended father or anonymous donor.
In gestational surrogacy, the child is thereby genetically related to the woman who donated the egg and also the intended father or the sperm donor but not the mother.
Surrogacy has drawn many childless couples within a previous couple of decades. Over the years, India has become the hub of the planet's fertile industry, with reproductive medical tourism becoming a significant activity. Clinics in India are offering assisted reproductive technology (ART) like gamete donation, intrauterine insemination (IUI), in vitro fertilization (IVF), intra-cytoplasmic sperm injection (ICSI), pre-implantation genetic diagnosis (PGD), and gestational surrogacy. While many couples benefited from surrogacy facilities in India, the practice has persisted with no legal framework, working only on the concept of vague guidelines. Under these circumstances, there are many reported incidents of unethical practices surrounding surrogacy. These practices include the exploitation of surrogate mothers, abandonment of children born out of surrogacy, and also the import of human embryos and gametes.
Laws governing surrogacy assume great importance in India because India has often been termed the 'surrogacy capital of the world'. Before 2008, surrogacy (essentially commercial) was being briskly disbursed in India with no efforts by the government to line up a statutory regulatory mechanism. The Indian council for medical research (ICMR) formulated certain guidelines in 2005. However, these guidelines didn’t have any statutory basis, and surrogacy continued to remain an unchartered territory within the Indian legal landscape. The turning point came within the year 2008 when the Supreme Court was called upon to handle a case revolving around surrogacy.
In 1986, ‘Baby M Case’, a pair in New Jersey contracted with a surrogate for bearing a baby. After the birth of a woman, the surrogate rejected the monetary offer and prefer to keep the child along with her. The court invalidated the surrogacy contract as critical of the general public policy and termed the involvement of cash as 'illegal', 'criminal', and 'degrading to women. However, the custody of the child to the intended parents, and awarded only ‘privilege visit’ to the feminine parent.
Surrogacy in exchange for money transpires from the event of science concerning infertility and reproductive technologies. Commercial Surrogacy is a modern practice against traditional surrogacy, and even the expression "wombs for rent" was coined, because it became possible to grow to some extent in time baby in any womb.
Evolution of Surrogacy laws:
India legalized commercial surrogacy in 2002. This legislation assisted the emergence of an industry that attracted international attention to India's reproductive market. India has proved itself to be one of the foremost famous surrogacy destinations preferred internationally. This paved how for women's exploitation, abandonment of children born out of surrogacy, and unethical practices. The financially weaker and cheap reproductive labor made low-income Indian women the proper sellers of their reproductive capabilities. To curb exploitative practices against 'mother-workers' the Indian Council for Medical Research laid down ethical guidelines in 2005 which emphasized contractual agreements between commissioning parents, fertility clinics, and thus the female parent, additionally because of the notions of consent, privacy, and support. In 2012, the Union Home Ministry proposed an amendment to the 2002 law, to ban foreign nationals, especially same-sex couples and single parents in India.
In the case of Baby Manji Yamada v. Union of India, a Japanese couple opted for surrogacy via an Indian-origin mother, and so the baby was born in Anand, Gujarat. The couple separated a month before the child’s birth, the wife rejected the baby that was biologically tied to the daddy, the female parent declined to remain the baby. The biological father, Ikufumi Yamada, wanted to need the child to Japan, but the court denied custody to the one father, and also the Japanese government didn’t permit him to bring the child back home because the child neither held Japanese nor Indian nationality. The Supreme Court of India intervened, and Japan gave the baby a visa on humanitarian grounds followed by the Indian government granting a travel certificate, and granted the grandmother custody on behalf of her son, and also the child was allowed to depart the country with the grandmother. This decision legalized commercial surrogacy in India.
The 228th report of the Law Commission of India has recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy by enacting a suitable legislation. One in all the prime reasons for surrogacy services to bombard India is poverty, which makes poor Indian women rent her womb for money or other essential commodities.
In 2013, surrogacy by foreign homosexual couples and single parents was banned followed by a ban on commercial surrogacy in 2015 for foreign nationals and permitted entry of embryos only for research purposes. Shortly thereafter in 2016, the Surrogacy (regulation) bill, 2016 proposed within the parliament. The bill is provisioned to the national and state level surrogacy boards. Further, only heterosexual Indian couples, legally married for five years, could avail of surrogacy, with pre-condition of proven fertility certified by the recognized health care provider. But the bill lapses within the Lok Sabha because of some flaws within the laws. Then, the surrogacy(regulation) bill, 2019 reintroduced and passed by the Lok Sabha which was passed by the Lok Sabha which was observed by the committee of Rajya Sabha. The most recent committee is incorporated with all the recommendations of the selection committee and also the union cabinet has approved it because of the surrogacy (regulation) bill, 2020. The bill, however, comes with a ban on commercial surrogacy and limits altruistic surrogacy. It bans overseas, foreigners, unmarried couples, single parents, live-in partners, and gay couples divorced from the Indian social reality.
Important provisions of Bill:
Section 3 of the acts provide for:
1) Compulsory registration of surrogacy clinic.
2) No surrogacy at other places than registered from commissioning surrogacy. The proposed isn't legally unsound but highly clinic, no specialist and caregiver shall perform commercial surrogacy.
3) No specialist or health care provider to perform without qualification.
4) No promotion or aid or advertisement:
i) of economic surrogacy in any way by a clinic or anyone
ii) that encourage women to be a parent
iii) seeks women to act as a surrogate
iv) implies the willingness of a woman to become a surrogate
5) No abortion without the consent of a mother and Appropriate Authority (such authorization should associate with the provisions of the Medical Termination of pregnancy act, 1971).
6) No storage of human embryos or gamete is allowed for surrogacy purposes.
Regulation of surrogacy and surrogacy procedures:
Section 4 – Under the following purposes surrogacy is permitted – Infertile, Altruistic (Unselfish) purpose, No commercial surrogacy, no prostitution or sale of a borne child, for the other purposes or disease that regulation made by Board allows.
Section 4(3) – Director or in-charge of the clinic and so the specialist of the clinic are satisfied that following conditions are fulfilled – certificate issued by the competent authority after confirming the below conditions –
1) Certificate of infertility to the couple intending surrogacy by District Medical Board,
2) Order of court lapsed a magistrate of the first class or above, regarding custody and parentage of a child,
3) Insurance of mother and child.
Eligibility certificate of a female parent by Appropriate Authority:
Every partner having own child (25-35 age),
A close relative (not defined during this act),
One surrogate birth in her lifetime (no limit for attempts)
Medical and psychological fitness certificate of intending mother.
Eligibility of Intending Appropriate Authority:
No child before by any way (exception – a child having life-threatening disease or disorder with no cure with a certificate of district medical board).
Age for women is 23 to 50 and for men is 26 to 55
5 years of marriage,
Written consent of the mother is very important and he or she shall be told all the side effects of the birth.
No child shall be abandoned (defined under section 2(a) of the act) by the intending parents after birth for any reason or defeat or gender. (Child born by surrogacy shall be deemed to be a natural child).
Not everybody shall in any way force the mother to abort the child.
Protection of surrogate mother:
Prohibition of business surrogacy and exploitation of mother, a child born.
1) No one or group shall undertake commercial surrogacy or provide any relating service.
2) No advertisement and publication for commercial surrogacy.
3) No one shall disown, abandon, exploit any kind of child.
4) Nobody shall exploit the mother.
5) No one shall sell the human embryo or gamete for surrogacy.
6) Nobody shall import or help in import of human embryo or gamete for surrogacy.
These acts are punishable with imprisonment of not but 10 years and a fine may extend up to 10 lakh.
Punishment for contravention of any provision of the act, imprisonment of not but 5 years, and fine may extend up to 10 lakh.
Punishment for initiation of business surrogacy:
Any person who seeks commercial surrogacy shall be punished with imprisonment for a term which shall not be but 5 years and with a fine which may extend up to five lakh rupees for the first offense or any subsequent offense with imprisonment which may reach ten years and with fine which may extend up to 10 lakh rupees.
Penalty for contravention of provisions of the act that no specific punishment is provided shall be punishable with three years and five lakh continuing contravention 10,000 for each day.
Presumption just in case of surrogacy:
Notwithstanding anything contained within the Indian Evidence act, 1872, the court shall presume, unless the contrary is proved, that the girl or mother was compelled by her husband, the intending couple, or the other relative, because the case is also, to render surrogacy services, procedures or to donate gametes for the aim except for those per clause (ii) section 4 and such person shall be answerable for abetment of such offense under section 37 and shall be punishable under the offense specified under the section.
The bill is yet to be introduced in Rajya Sabha and after the accent of the President, the bill will become an act.
The surrogacy (regulation), bill 2019 having been passed by the Lok Sabha is due to become the law of the land after its passing by the Rajya Sabha. It will be a landmark achievement for a country like India which has its socio-legal problems. Many have been exercising this move as a progressive measure as it will curtail the exploitative practice involved commercially.
Many also see this is as a regressive move, as it will strip women of autonomy over their bodies and will violate their basic civil and fundamental rights. The bill also requires the couples to obtain a 'certificate of infertility' from the district medical board, which is a violation of 'right to privacy and has been recognized as a 'fundamental right' to be protected under the constitution of India in the landmark judgment of Justice KS Puttaswamy (Retd) & Anr v Union of India. As also observed in B.K. Parthasarthi v Govt. of A.P., the right to make a reproduction is essentially a very personal decision called the ‘right of reproductive autonomy and is a facet of 'right to privacy and the intrusion of the state into such a decision-making process has to be scrutinized by the courts.
Although women's rights and feminists groups have been against commercial surrogacy because of several malpractices, there remains an inescapable fact, that it was an important source of income for many women from economically disadvantaged backgrounds, and this will deprive them of their means of livelihood. A complete ban is not feasible. India has seen a rise in infertility cases and a ban on commercial surrogacy take away the couple's right to start a family.
The ban on surrogacy seems to be the government's response to stop exploitative practices involved in surrogacy. However, there are no alternate solutions for economic independence and livelihood options for women who either were surrogate mothers or wanted to be surrogate mothers in the future. It is a choice opted by the parties involved due to socio-economic conditions and it remains for the legislators to answer if commercial surrogacy could have been allowed with strong regulations and oversight.
Author- Divya Mishra
College Name- Ramaiah Institute of Legal Studies
B.A.LLB. 3rd year (6th Semester)