SURROGACY

In India, the very first IVF baby which was successfully born was Kanupriya alias Durga in Kolkata (Calcutta then) in the year 1978, sowed the seed of surrogacy as an alternative reproductive technology (ART). It has been a raging topic in the last few years. Most studies reveal comparable information between surrogacy and IVF cycles, as surrogacy goes hand in hand with IVF techniques.

The word ‘Surrogate’ has its origin from a Latin word ‘to substitute’ which means a lady acts as a substitute for an additional woman. In simple words, it basically means that on behalf of another woman or a couple, another woman or the ‘surrogate’ offers to hold or accepts to hold a baby through pregnancy in return for a compensation. As soon as the child is born, the ‘surrogate’ mother hands over the child to the supposed parents and get money for her labour and all the expenses she bore while being pregnant. After the parties had agreed on the contract, eggs from the woman who can carry the baby are impregnated with spermatozoon from a sperm donor to create an embryo. The embryo is deep-rooted within the female internal reproductive organ of the mother, who carries the baby till birth.

For sex-selective ART, the penalty shall be not less than five years but not more than ten years in prison, or a fine of not less than ten lakh rupees but not more than twenty-five lakh rupees, or both. In 2002, business surrogacy or informally ‘Rent a Womb’ follow, was legalised in India. In today’s time, India is the “hub of surrogacy”. The reason that surrogacy became popular was that maybe the wife was infertile or physically incapable of carrying a developing fetus. Further more, there are two types of surrogacies namely traditional & Gestational.

Under the former type, the eggs of the surrogate mother are used in the conception of the child. Under this, the surrogate mother is genetically related to the child and is thus more accurately considered to be the child’s biological mother[1]. As far the latter one is concerned, the intended parents create an embryo using their own egg and sperm or using donated egg or sperm[2]. While, the advantage of surrogacy is that the childless parents get a hope and give consideration for the same, there are also some disadvantages associated with it as well.

The surrogacy business raised issues like unethical practices where the middlemen and business agencies profited the most, the surrogate mothers were exploited, rackets like trading of the organ, embryo import were also done for money & business within the country and abroad. The birth certificate is issued bearing the name of the couple who commissioned the surrogacy, as parents.

REASONS FOR SURROGACY

As already told, the basic reason for surrogacy is that the wife was infertile or physically incapable of carrying a developing fetus. Other than this, there are other reasons for surrogacy which are same-sex marriage, age related problem in woman, physical problems, trauma related to the past or the personal decisions.

There are instances where infertility isn’t the reason for selecting surrogacy, but, the woman herself select to not carry their own child as it would affect their career and physique. In case of same -sex marriage, the couples are not able to conceive a baby naturally and therefore, they take the help of surrogacy which helps them to become parents. Age plays a vital role in every woman’s ability to conceive and carry a child. By the time, a woman is forty years old, the chance of being pregnant becomes very less. Hence, majority of the woman prefer surrogacy at that age.

Some physical problems like hysterectomy or noninheritable uterine abnormality could the possibility for the select woman to go for the surrogacy. Both physical and emotional trauma could be one of the reasons that the woman may opt for surrogacy. Some ladies undergo such a lot throughout before marriage either physically or mentally and that may be the reason that don’t want to carry the child in their womb & prefer a surrogate mother.

Promulgation of Surrogacy Laws in India

Commercial surrogacy has been a silently-operating booming industry in India, which according to the Confederation of Indian Industry (CII), generates more than $2 billion annually, but in response to all these unregulated tactics and make way for a safe and legalized path for all concerned parties, the Court directed for the early enactment of statute, considering the large scale commercial practice in India[3].

BABY MANJI CASE

In this landmark case, there was a Japanese couple named Mr & Mrs Yamada who wished to have a baby and so, they entered into the contract of surrogacy with an Indian woman in Anand, a city in the state of Gujarat. Unfortunately, the couple went through matrimonial discord but the father wanted to have the custody of the child. Under Indian Law single father cannot adopt a girl child. The SC held that the father was the genetic father of the child and he was given custodial rights of the child. Moreover, the court held that the Surrogacy Agreement was valid in India.

LEGAL ISSUES

The first legal challenge in case of surrogacy is that SURROGACY IS A CONTRACT! Plus, surrogacy contracts are governed by different laws in different nations when it comes to their legitimacy and enforceability. Some countries consider these contracts as lawfull while some don’t. In India, surrogate contracts are widely criticized for being against a public policy only for the fact that a woman uses her womb to bear a child which is not hers and then, after nine months, handling the child to the lawfull parents. In all the states of Australia, the surrogate mother is considered by the law to be the legal mother of the child and any surrogacy agreement giving custody to others is void and unenforceable in the courts of Law[4].

A number of challenges like the right of the child to know his biological parents or golden triangle test for surrogacy regulation in India along with legitimacy of surrogacy contracts, and embryo wastage. In the case of Laxmikant Pandey versus Union of India (1984) which dealt with Inter-country adoption, the question regarding the biological parents of the child was raised. The problem would be that when the child grows up and inquires about his biological parents, then, the adoptive parents will have to answer it along with solid reasons. According to Article 7(1) of the 1992 Convention on the Rights of the Child, it states that a child has the right to know about his or her origins.

Regarding the ‘Golden Triangle’ test, it is to be noted that the Surrogacy operations are only available to Indian married couples under the Surrogacy (Regulation) Bill of 2016 & 2019, the ART Bill 2020 etc. In the case of Consumer Education and Research Centre and Ors, v. Union of India & Olga Tellis v. Bombay Municipal Corporation, commercial surrogacy was banned citing that it infringed the right to livelihood.

The surrogacy sector in India is estimated to be worth roughly 4-5 billion dollars, which is the bread and butter for both surrogates and ART clinics, according to numerous studies. The interests of these parties are jeopardized by a blanket prohibition[5]. It is believed that surrogacy is an artificial reproductive procedure in which an egg is fertilized with sperm and an embryo is formed in vitro, and then the produced embryo is transferred to the womb of a surrogate mother. According to the experts, there is a waste of embryos, eggs, and sperm.

CONCLUSION

It is to be remembered that surrogacy is a contract; consideration for a give & take. The parent-to-be gives money on behalf the child which is borne by the surrogate mother. The expenses include accommodation, food, heath check-up and transport. Both the parties must make the contract in such a way that none of them sues the other in the competent court. But, in reality, it is not so. Sometimes, the parent-to-be in mid way, stops the expenses of the surrogate mother or it happens that the surrogate mother demands more money than it was decided in the contract or surrogate mother refuses to give the child. Plus, if the contract is between two individuals of two different nations, a breach by any one creates all sorts of questions regarding the final decision of the court and then private international law may come into the picture. According to me, its high time that woman must decide regarding their reproductive rights and then execute the contract in that manner.


[1] Vinisha Shetty- SURROGACY AND THE DEVELOPMENT OF ITS LAWS IN INDIA, SURROGACY AND THE DEVELOPMENT OF ITS LAWS IN INDIA – Aishwarya Sandeep, visited on 02-08-2021 at 12:17hrs.

[2] Surrogate.com, / https://surrogate.com/about-surrogacy/types-of-surrogacy/types-of-surrogacy, visited on 02-08-2021 at 12:20hrs.

[3] Sunitaranisahoo-SURROGACY REGULATION BILL 2020, surrogacy regulation bill 2020 – Aishwarya Sandeep, visited on 02-08-2021 at 15:12hrs.

[4] Dr. Mudasir A. Bhat-Surrogacy in India: Legal and Ethical Issues, March2015_12.pdf (nbu.ac.in), visited on 02-08-2021 at 18:55hrs.

[5] Bandana Saikia-Surrogacy in India- An Overview, Surrogacy in India- An Overview (thelawbug.com), visited on 02-08-2021 at 17:45hrs.

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