Surrogacy: A Boon or Bane for Civilization
Overview of Surrogacy
According to nature’s rule, all living organisms are born on this earth in order to transfer their traits to their offspring; helping in creating a new generation and in continuing the existence of their specie in this world. In order to transfer their own traits to their offspring, the living organisms should undergo the process of sexual intercourse and should have the ability to nurture and give birth to their young ones.
But, in recent times, the people are becoming incapable of nurturing and giving birth to their offspring. This has disappointed many infertile couples. In order to subdue this situation, they have started adopting unnatural/artificial means of giving birth to their young ones through ‘Assisted Reproductive Technology’.
The practice of ‘Surrogacy’ is one among those Assisted Reproductive Technology. It is the process where a woman agrees to rent her womb to nurture and develop the embryo of the infertile couples for a consideration. It is usually a reward which can be monetary in nature. Surrogacy has been considered valid according to the Assisted Reproductive Technology (Regulation) Bill – 2014, which has now become a part of cabinet note.
Basically, there are two types of surrogacy, Altruistic surrogacy and Commercial surrogacy. Altruistic surrogacy is a traditional type of surrogacy wherein the surrogate mother does not receive any financial reward for her pregnancy from genetic parents, except necessary medical expenses. In commercial surrogacy, the surrogate mother is paid over and above medical expenses. Surrogacy has its own pros and cons.
Religious perspective towards the practice of Surrogacy
Country like India, explicitly called a ‘secular’ country, consist of people from different religion. Different religion have different perspective towards this practice of surrogacy.
Catholicism: Generally called Christianity does not advocate for surrogacy. Church teaches that children are a gift from god, only to be carried and conceived naturally by a married wife and husband. Inclusion of third party in this process is considered to be ‘immoral’.
Protestantism: The views vary among different factions of this religion. However most of the sects are more liberal and encourage the practice of surrogacy and other assisted reproductive technology.
Judaism: They do not approve of surrogacy. IVF can be completed under rabbinical supervision, but there is a complicated discussion regarding the heritage of a child born via egg donor (as Jewish heritage is matrilineal). More liberal religious thinkers may accept surrogacy as a way to ease the suffering of infertile couples.
Islam: Their views are wide and varying. Some scholars argue that the process is akin to adultery and that the child has no legal lineage, while others claim that surrogacy is an integral part of the belief that humans have a responsibility to preserve the human species however they can. Some modern Muslims believe that IVF and surrogacy is allowable as long as semen and ovum are from a married couple, while Sunni Muslims believe that the third party should not be permitted to enter in this process.
Buddhism: Surrogacy is completely accepted in this religion. Couples have no obligation to have children through whatever they deem fit. It is because procreation is not seen as a moral duty.
Surrogacy related laws in India
The Union Cabinet approved The Surrogacy (Regulation) Bill,2020, in the month of February. This amended bill is a reformed version of The Surrogacy (Regulation) Bill, 2019 which was introduced by the health and family welfare minister, Dr. Harsh Vardhan in Lok Sabha on July 15, 2019. It was passed by Lok Sabha in the month of August 2019. Later it was approved by the Cabinet only after incorporating all the recommendations of the Rajya Sabha Select Committee.
The Surrogacy (Regulation)Bill, 2020
The Surrogacy (Regulation) Bill, 2020 aims at banning commercial surrogacy and allowing altruistic surrogacy. While commercial surrogacy will be prohibited including sale and purchase of human embryo and gametes, ethical surrogacy to Indian married couples, Indian-origin married couples and Indian single woman will be allowed on fulfillment of certain conditions.
The Bill allows a willing woman to be a surrogate mother and would benefit widows and divorced women besides infertile Indian couples.
It provides for the constitution of surrogacy boards at the national as well as state levels to ensure effective regulation.
It seeks to allow ethical altruistic surrogacy to the intending infertile Indian married couple between the age of 23-50 years for females and 26-55 years for males.
Only Indian couples can opt for surrogacy in the country.
It makes it mandatory for the couple to obtain a certificate of essentiality and also a certificate of eligibility before going ahead with surrogacy.
It also provides that intending couples should not abandon the child born out of surrogacy under any condition. The newborn child shall be entitled to all rights and privileges that are available to a natural child.
The Bill also seeks to regulate the functioning of surrogacy clinics. All surrogacy clinics in the country need to be registered by the appropriate authority in order to undertake surrogacy or its related procedures.
The Bill provides for various safeguards for surrogate mothers. One of them is insurance coverage.
It also specifies that no sex selection can be done when it comes to surrogacy.
Offences and penalties: The offences under the Bill include:
(i) undertaking or advertising commercial surrogacy
(ii) exploiting the surrogate mother
(iii) abandoning, exploiting or disowning a surrogate child
(iv) selling or importing human embryo or gametes for surrogacy.
The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees. The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.
How Surrogacy is helpful in Civilization?
The following are the advantages gained from the practice of surrogacy:
The infertile couple will be able to have a child of their own trait and the evolution process if nature is not disturbed or terminated. It also helps in ensuring the existence of the specie and continuation of the population.
Many people who are unable to undergo the process of pregnancy and gestation due to their work barriers will be able to have their own child through the process of surrogacy. For Example, the people who are into modeling will not willing to sacrifice their carrier for the sake of having a child, but both will be equally important to them, in such cases they can easily opt for the method of Assisted Reproductive Technology.
Some male will be incompatible due to their low sperm count. Some females may be incapable of bearing the baby in her womb due to poor health conditions or will be incapable of conceiving due to poor and irregular ovulation other uterine problems like PCOS and PCOD. For such people this method will be very much helpful.
Ill effects of legalizing Commercial Surrogacy
Yes Commercial surrogacy will help a woman to earn her livelihood. In fact surrogates in India can earn up to Rs. 2- 4lakhs per birth. But if it is continued woman loses her respect, dignity, modesty and almost her existence itself. She will be treated as a machine or an instrument to produce children and to satisfy the men’s sexual needs in the society. All the gender equality, respect, equal rights; of women for which people are fighting now to attain it at the fullest; will be vanished just like that with a snap of fingers; if this practice continues in the society. The modesty of women will be harmed. There will be no value for women in the society. This can have dangerous impacts on society resulting in increase in rate of female foeticides, marital rapes, domestic violence, sexual harassment, gender inequality; in the society. It reduces the quality of human resources in the society. It reduces their productivity and harms each and every field of the society including the economy of the country resulting in a poor quality of society. This also creates imbalance between the gender, which in turn imbalances the environment. Thus these practices go against the nature rules. Hence, Commercial Surrogacy was declared illegal India since 2016.
Hence, there is both advantage as well as disadvantage from practicing surrogacy. The fact is it has to be practiced methodologically abiding to the appropriate rules and regulations laid down by the government such as The Surrogacy (Regulation)Bill,2020. If done in this way we can increase the advantages by preventing the disadvantages from the practice. But the best option is adopting an orphan child. That child at least gets a better life. This helps in creating a bright future for that child as well as improving the quality of human resources by preventing poverty.
Author: Harshini P,
IFIM LAW SCHOOL(BBA LLB, 1st year)