Marriage is a social institution which is significant in every community in the world is the social order through which a married couple wishes to produce a child to continue the lineage of their family. However, this dream cannot be fulfilled in case of an infertile couple, homosexual couples or people who want to lead a single life. This desire of having a child can be satisfied by adopting a child. But Every individual wants to bear a child of their own genes. so, the intended parents make use of surrogate technology instead of adoption. Laws for Surrogacy in the world are usually complex and uncertain. There are only a few countries that legalize surrogacy and India is one of them. Motherhood is very essential especially when we talk about Indian marriages, In India, a woman is respected as a wife when she is the mother of a child so that her husband’s lineage continues. A biological born child constructs the image of parents socially. That’s why surrogacy in India rather being a choice but is also a compulsion in Indian society and as it is only hope of raising a child genetically for those couples who are unable to bear a child naturally. But every practice has its own pros and cons like that only Surrogacy also has some gray area that exploited the rights of surrogate mother and child born out of surrogacy. In India, there are no laws that specifically protect their rights and still in process. The vulnerability of poverty is being exploited in this whole system, usually, the couples from abroad, or the rich class people approach below poverty line women to bear their children in exchange of hefty charges paid by them. These poor Indian women engaged in this practice to secure the future of their kids and family so that their children get educated, do not die out of bad health and to provide them at least two meals a day. Therefore, India has emerged as the hub for commercial surrogacy due to easy availability of surrogates at cost-effective treatment for infertility with world-class medical facilities, and lenient guidelines lead to medical tourism in India for surrogacy practices due to which People not only from within India but also from other countries rush to India looking for a surrogate. Despite facing too many criticisms and hurdles the industry expands and thrive a lot.
DEFINING SURROGACY AND ITS KINDS
According to the Black’s Law Dictionary, surrogacy means the process of carrying and delivering a child for another person.
The world’s second and India’s first IVF (in vitro fertilization) baby, Kanupriya alias Durga was born in Kolkata on 3rd October 1978. Since then, assisted reproductive technology (ART) field has expanded rapidly.
Assisted Reproductive Technologies, consists of the technologies that allow people to have a child through artificial methods. ART consists of various techniques, and of course, surrogacy is one of them.
In short, it is a practice in which surrogate mother bears a child on behalf of another woman, either from her egg or from the implantation of a fertilized egg from another woman in her womb for a couple who cannot have children in the usual way.
So, it is a method of assisted reproduction where intended parents enter into an agreement with a surrogate who will carry and care for their baby until birth and ultimately become the parents of the newborn child. Intended parents use surrogacy to continue their family lineage which they can’t do so on their own.
Medically, there are two types of surrogacy in terms of genetic relationship between the surrogate and the baby she carries that is traditional surrogacy and gestational surrogacy.
- In traditional surrogacy, the ovum of the surrogate mother is artificially inseminated by the sperm of the father or an anonymous donor and carries the baby to term. Here the child genetically belongs to surrogate mother, who provides the egg and the intended father both. This is also known as ‘Partial Surrogacy’.
- In gestational surrogacy, with the help of IVF (in-vitro fertilisation) an egg is removed from the intended mother and fertilized with the sperm of the intended father and the fertilized egg is then transferred to a surrogate womb who carries the baby to term. Here the child is the complete genetic descendant of intended parents. This is known as ‘Full Surrogacy’.
Legally, there are also two more types of surrogacy in terms of monetary consideration paid to surrogate that is: Commercial and Altruistic Surrogacy
- In Commercial surrogacy, an agreement involves monetary consideration between a surrogate mother and intended parents, where the surrogate mother is compensated for carrying out pregnancy and handing over the child to them, it includes all the medical expenses, insurance and other expenses. So, when the surrogate mother receives any financial reward for the pregnancy and handing over of the child to the intended parents. It is known as commercial surrogacy.
- In Altruistic surrogacy, the close relative of the intended parents enters into an agreement to become the surrogate mother of the child without monetary consideration, except for the medical expenses, insurance and other expenses related to the pregnancy. So, when the surrogate mother does not receive any financial reward for the pregnancy and handing over of the child to the intended parents. It is known as Altruistic surrogacy.
There are many legal rules and regulations on surrogacy in different countries which allow surrogacy like in Denmark, New Zealand, Canada and the U.K. banned commercial surrogacy but they allow some forms of altruistic surrogacy. On the other side, countries like Germany, Portugal, France and Spain banned surrogacy wholly whether commercial or altruistic.
HISTORICAL BACKGROUND OF SURROGACY
In the history of the world, the first agreement of surrogacy was brokered by lawyer Noel Keane in 1976, which was a traditional surrogacy and surrogate mother did not receive any monetary consideration for pregnancy. Keane plays a key role in the history of surrogacy by establishing a fertility centre in the United States which arrange hundreds of surrogate pregnancies a year.
Then, in 1980, The first compensated surrogacy agreement was arranged between a surrogate named Elizabeth Kane and the intended parents in which Kane received $10,000 to carry a baby for another couple.
In India, the surrogacy was practised from the time of ancient times. For instance, the seventh child of Devaki and Vasudev (Krishna’s parents) Balram, was born by surrogate mother Rohini (Vasudev’s first wife) in order to save him from being killed by Kansa (Devaki’s brother).
Its evidence has also been found in Mahabharata where Dhritarashtra wife Gandhari delivered a mass (mole) after experiencing pregnancy nearly for two years in which 101 cells were found normal in the mass which were put in a nutrient medium and grown in vitro till full term. Out of these 101 cells, hundred developed into male children and one as a female child
PRACTICE OF SURROGACY IN INDIA AND DEVELOPMENT OF LAWS
Slowly but steadily, India emerged as a popular destination for surrogacy for many rich foreigners and Commercial surrogacy became legal in 2002 and was legal until November 2015, during the period it had become a very profit-making business in India due to great global demand and available medical infrastructure at low cost.
To regulate the practice of surrogacy, Indian Council of Medical Research (ICMR) in 2005, provide some guidelines to the clinics regulating Assisted Reproductive Technology procedures. The guidelines stated that the surrogate mother can receive any monetary compensation from the intended couples as the commercial surrogacy was already allowed.
Surrogacy is a light of hope for those infertile couples who are unable to produce children but over the years foreigners and celebrities misused the practise of surrogacy and within a very short period of time, India becomes the largest hub of surrogacy.
The Law Commission of India submitted the 228th report in 2009 with an aim to bring law to meet the need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as rights and obligations of parties to a Surrogacy. And for this, some observations had been made by the Law Commission such as: –
To provide for financial support for a surrogate child in case of death of the intended couple or individual or divorce between the intended parents before delivery of the child, Contract should take care of life insurance cover for surrogate mother, Donor, as well as surrogate mother, should be protected with a right to privacy, Consent of surrogate mother to bear child and agreement of her husband and other family members should be there in the contract amongst parties, Surrogacy on the basis of sex should be prohibited.
So, it discusses the importance and needs for surrogacy and the steps that can be taken to control surrogacy arrangements and also recommend to prohibit commercial surrogacy and allow altruistic surrogacy to needy Indian citizens by enacting proper legislation.
In 2016 government had introduced a bill for the first time to regulate the practice of surrogacy in India that is Surrogacy (Regulation) Bill, 2016 which prohibits commercialization of surrogacy and only allows the practice of altruistic surrogacy within India but it prohibits both forms of surrogacy in case of homosexual couples, foreigners and overseas Indian citizens etc.
The bill provides several guidelines needs to be followed by the surrogacy clinics and intended party for the commission of surrogacy. Such as there must be heterosexual Indian couples who are married for five years within the age group of 23-50 years for female and 26-55 years for the male partner and must not have any living child and any one of them must be infertile then, they can opt for surrogacy. The surrogate mother must be a close relative of the intended couple aged between 25 to 35 years and must be married and has a child.
PRESENT LEGAL STATUS OF SURROGACY IN INDIA
The Surrogacy (Regulation) Bill, 2019 introduced by the Ministry of Health and Family Welfare under the guidance of Dr Harshvardhan in Lok Sabha. The provisions of the bill are the same as that in the previous one. The Bill explains that lack of legislation on surrogacy has led to its rampant commercialization, unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and import of human embryos and gametes.
Some essential Features of Surrogacy (Regulation) Bill 2019-
– It provides for constitution of surrogacy boards at the national as well as state levels to ensure effective regulation.
– It makes it compulsory for the intending couple to obtain a certificate of essentiality and also a certificate of eligibility before the commission of surrogacy.
– It also provides a different eligibility criterion for the surrogate mother. The surrogate must be a married woman aged between 25-35 years and a close relative of the intending couple and also have a child of her own.
– It also provides guidelines to regulate the functioning of surrogacy clinics in which all such clinics need to be registered by the appropriate authority to commence surrogacy related procedures.
– The Bill provides insurance coverage for surrogate mothers for a period of 16 months to protect them from any kind of exploitation.
The Surrogacy (Regulation) Bill, 2019 was passed by Lok Sabha in August 2019 and referred to a select committee by Rajya Sabha in November 2019 which includes some major changes in Surrogacy (Regulation) Bill, 2020
In February 2020, The Union Cabinet approved the Surrogacy (Regulation) Bill, 2020 following the recommendation of the select committee such as-
– It allows any “willing woman” to be a surrogate mother and not only restricts the close relative of the couple to be a surrogate mother.
– It increases the insurance cover for surrogate mother from the period of 16 months to 36 months.
– The bill prohibits the act of commercial surrogacy including buying and selling of human embryo and gametes.
– It removes the definition of “infertility” as to eligible for the surrogacy on the ground of marital status of 5 years and not able to conceive within that time period considered too long for a couple to wait for a child.
– It provides a guideline to regulate surrogacy by setting up National Surrogacy Board at the central level and State Surrogacy Board at the state level.
Surrogacy has always been a controversial topic to debate upon, like any other practice, surrogacy has its pros and cons. There is a very thin line between its ethical use and unethical abuse. On one side it is a way to provide infertile couples with the joy of being a parent, Although they can adopt the child they cannot be denied with the right to have a child of their own genes and also a source of employment for many surrogates and on the other hand, there is severe exploitation of the surrogate mother and the rights of the child born out of surrogacy like baby-selling and commodification of reproductive labour. But putting a complete ban on commercial surrogacy is not a solution to the problem as it can give rise to a black market where females can be exploited and forced to join clinics to be a surrogate mother. This will increase the risk of surrogacy in society and the primary purpose will not be fulfilled even altruistic surrogacy can put women at risk. Therefore, it can be concluded that the matter of surrogacy still involves many legal and moral questions which needs to be looked upon by the regulatory authority and government should take measures and make strict provisions for regulation of commercial surrogacy laws instead of putting a ban on it. Just the removal of the commercial aspects in the current surrogacy arrangements does not remove the chances of exploitation. So, the rights of surrogate mother and child born must be systematically formulated.
Author: RISHABH MANCHANDA,
Delhi Metropolitan Education affiliated to GGSIPU/ 2nd Year/ Law Student