Surrogacy: An Indian Perspective

“Motherhood is the greatest thing and the hardest thing.” – Ricki Lake.

INTRODUCTION

The ‘Surrogate” word has its origin within the Latin term Surrogatus’ meaning a woman acts as a substitute for another woman. It is a method of assisted reproduction or assisted reproductive technology (ART) where on behalf of another person or couple a woman or the surrogate offers to carry a baby through pregnancy and then return the baby to the intended parent(s) once it is born and also in return will get compensation as agreed.

Surrogacy provides a new way of living for those mothers who are willing to become a mother but is unable to enjoy such advantages due to any medical reasons. Surrogacy introduced a new way of achieving the happiness of getting a child by another woman for those mothers who are unable to bear a child. No doubt it is a highly complex process and there are several important steps to ensure that both parties make the best decisions. In surrogacy, an embryo is created using an egg and sperm that is produced by the intended parent(s) or donors and is transferred into the uterus of the surrogate. There is no genetic link to the surrogate with the child. Her eggs cannot be used to conceive the child. Surrogacy was made legal in India in 2002, and was framed under guidelines issued by Indian Council of Medical Research, but these guidelines were too sloppy and without any legislative backing. It was equivalent as having no laws.

The unregulated business of surrogacy raised concerns like unethical practices, due to it the middlemen and commercial agencies profited most, exploitation of surrogate mothers, abandonment of children born out of surrogacy, rackets like organ trade, embryo import, etc. That is why legislation to regulate surrogacy in the country came in to force.

Commercial surrogacy is a modern practice as opposed to traditional surrogacy, and even an expression “wombs for rent” was coined, as it became possible to grow a full-term baby in any womb.

In 2002, commercial surrogacy or informally ‘Rent a Womb’ practice, was legalised in India. It was done to promote medical tourism in India and after this decision, India became “the hub of surrogacy”. Over the years has emerged as a global hub for surrogacy for international intended parents due to relaxation of any legal framework, restrictions and regulation for a long time, which ensures a legally simple route for their parenthood. The main reason being the low cost in India that is in the U.S it cost approx $100,000 and also the absence of strict legislation. As per the CII report 2012, the size of India’s surrogacy industry was $2 billion a year and more than 3,000 fertility clinics were engaged in this across the country.

The women who chose to become surrogate, were being subjected to unethical treatment, poor living conditions and exploitation. The Surrogacy agencies in India paid only a fraction of expenses to the surrogate mother, out of the hefty fees, of what they received from the intended parents. Poverty and lack of education pushed them back in this industry and they continued to be used as baby-making machines by these agencies for money-making, which also led to their physical and mental health being deteriorated. Off lately, a lot of irregularities were being committed in this industry and a “money-making racket” in the name of a child was perpetuated.

The absence of law relating to surrogacy in India came up before the Supreme Court of India in Baby Manji Yamada v Union of India & Anr[1], in which a Japanese couple opted for Surrogacy via an Indian origin mother, and the baby was born in Anand, Gujarat, which is popularly known as ‘cradle of the world’. The couple separated a month before the child’s birth, the wife rejected the baby that was biologically tied to the father, the surrogate mother declined to keep the baby. The biological father, Ikufumi Yamada, wanted to take the child to Japan, but the court denied custody to the single male parent and the Japanese government didn’t permit him to bring the child back home as 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 Indian Government granting a travel certificate, and granted the grandmother custody on behalf of her son, and the child was allowed to leave the country with her grandmother. This decision legalized commercial surrogacy in India, and was reiterated in Jan Balaz v Anand Municipality[2] and further elucidated that commercial surrogacy was legal in India as there was no law prohibiting it.

According to a study published by the Centre for Social Research (CSR), an NGO dealing with women issues, in 2014, which stated that 88% of surrogate mothers in Delhi and 76% in Mumbai said they were not aware of the clauses of the contract and there were more than 2,000 surrogacy clinics operating in India without any registration. Indian surrogacy industry has been lambasted by women’s rights groups who say fertility clinics are “baby factories” for the rich, and lack of education results in poor and uneducated women signing contracts they do not fully understand, owing to their exploitation.

SURROGACY LAW 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. Even the Law commission of India in its 228th Report[3] submitted on 5th August, 2009, recommended an urgent need for proper law for surrogacy in the country. The Report was titled as “Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy”.

The Indian Council of Medical Research (ICMR) which works under Ministry of Health & Family welfare, formulated the Assisted Reproductive Technologies (Regulation), ART Bill, 2008, which has been revised time and again by the Ministry of Law & Justice in 2010, 2013 & 2016 as well, but throughout all these years the legislation has been amended and proposed, but never passed.

However, 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, Surrogacy (Regulation) Bill, was introduced and passed by the Lok Sabha which proposed to legalize altruistic, domestic surrogacy, but the bill lapsed owing to adjournment of the Parliament session

The Surrogacy (Regulation) Bill, 2016

It was passed in Lok Sabha with a voice vote amid several adjournments over other issues. The bill ensures regulation of surrogacy in India, prohibiting commercial surrogacy. It allows altruistic surrogacy to Indian married couple who cannot bear children. The bill says the surrogate mother and the couple that wants to have her child must be close relatives. It provides for the formation of a National Surrogacy Board, State Surrogacy Boards and appointment of appropriate authorities for the regulation of the practice of surrogacy. The surrogate mother and the intending couple need eligibility certificates from the appropriate authority. The bill allows only Indian citizens to avail of surrogacy. Foreigners, non-resident Indians and persons of Indian origin are banned from seeking surrogate mothers in the country. Homosexuals, single parents, and live-in couples are also not allowed to have children via surrogacy in India. Couples that already have children will not be allowed to go for surrogacy, though they would be free to adopt children under a separate law.

The new bill i.e., Surrogacy (Regulation) Bill 2019 is a replica of the 2016 bill that wasn’t able to make it through both the houses. This bill was introduced in the Lok Sabha on 15 July 2019, and it was passed on 5 August 2019. In the Rajya Sabha, the Bill was referred to a Select Committee for examination and consultation on 21st November 2019. The committee submitted its report on 5th February 2020. The committee, upon considering the suggestions of the concerned stakeholders, gave 15 recommendations in total to be incorporated into the 2020 bill. The amended bill i.e., Surrogacy (Regulation) Bill, 2020 is a reformed version of the draft legislation which was passed by Lok Sabha in August 2019, after the Cabinet has approved all the 15 recommendations of the select committee.

The Surrogacy (Regulation) Bill, 2020

The Surrogacy (Regulation) Bill, 2020 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 own socio-legal problems. Many have been exercising this move as a progressive measure as it will curtail the exploitative practice involved commercially. There are several significant and historic changes brought in by this 2020 bill, which are:

  1. The Bill completely prohibits commercial surrogacy and only allows altruistic surrogacy, meaning that the surrogate mother would not receive any financial compensation and awards for her pregnancy, except for the basic medical expenses and insurance coverage. Commercial surrogacy will be prohibited, including the sale and purchase of human embryos and gametes.
  2. The present bill also deletes the definition of ‘infertility’ which was previously defined as the inability to conceive after five years of unprotected intercourse. The select committee was of the view that five years is too long a period for a couple to wait for a child and regarded it as unreasonable and against the objectives of the act.
  3. The Bill allows surrogacy to Indian married (heterosexual) couples (between 23 to 50 years for wife and 26 to 55 years for husband) and widens the applicability to include Indian-origin married couples, and Indian single woman (only widows and divorcees between the age of 35 and 45 years.
  4. The proposed Insurance cover for surrogate mothers has been increased from 16 months to 36 months, to counter the high risks of medical complications even after pregnancy.
  5. It is mandatory for the couple to obtain a certificate of essentiality and also a certificate of eligibility (proven infertility) before going ahead with surrogacy. It also provides that intending couples should not abandon the child born out of surrogacy under any condition. The new-born child shall be entitled to all rights and privileges that are available to a natural child and no sex selection can be done in this process.
  6. The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act. 
  7. Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority. Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.
  8. The offenses under the bill include advertising or undertaking for commercial surrogacy, selling or importing human embryos for surrogacy, exploiting the surrogating mother or the surrogate child and disowning the child. The penalties for such offenses attract imprisonments up to 10 lakh rupees and fines up to 10 years.
  9. The bill also proposes to regulate surrogacy by establishing a National surrogacy board (NSB), and State surrogacy board (SSB), whose function would be to advise the government on policy matters and supervising the functioning of the clinics.

Before the bill of 2020 was passed, a couple outside India was allowed to heir an Indian surrogate mother. Not only this, the birth certificate of the child also carries the name of her surrogate mother. But after the new Surrogacy (Regulation) Bill, 2020, the concept of hiring an Indian mother by a foreign couple is eradicated. The infertility rate is increasing day by day within the urban areas of the country. So, this new Assisted Reproduction Method is very useful in overcoming the problems of in fertilization in the urban areas. The technique is very useful than the other methods and the provide a great back support for the people if, there is not any way remaining for the fertilization.

Many also see this as a regressive move, as it will strip women of autonomy over their own bodies and will violate their basic civil and fundamental rights. In Suchita Srivastava v Chandigarh Administration[4], the court held that the right to make reproductive choices falls under the personal liberty guaranteed by Article 21 of the Constitution and includes a women’s entitlement to carry a pregnancy to its full term, to give birth and that these rights form part of women’s right to privacy, dignity and bodily integrity. In Devika Biswas v Union of India[5], the Supreme Court also recognized that right to reproduction is an important component of ‘right to life’ under Article 21. In other way, this bill restricts surrogacy to married heterosexual couples within strict age range, and also discriminates against members of LGBT Community, older couples and unmarried people who might seek to have children, which goes against the principles of equality provided under Article 14 of the Constitution of India.

Although several women 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 definitely deprive them of their means of livelihood. A complete ban is not always feasible. India has seen a rise in infertility cases and a ban on commercial surrogacy takes away the couple’s right to start a family. Even the 102nd Parliamentary Standing Committee Report[6] on Surrogacy has stated that restricting surrogacy to only altruistic cases have its drawbacks and is based more on ‘moralistic assumptions than on any scientific criteria’. Also, the government’s ban comes with no alternate plans for women who rely on surrogacy.

CONCLUSION

Surrogacy is a blessing for many childless couples. The Surrogacy (Regulation) Bill is an ethical, moral and social legislation as it protects the exploitation of the surrogate mother and protects the rights of the child born through surrogacy. The bill tries to ensure that while childless couples get what they want, nobody, including the surrogate mother and the children born out of surrogacy, suffer.  It seeks to constitute a national surrogacy board, state surrogacy boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy. The ban on surrogacy seems to be the government’s response to stop exploitative practices involved in surrogacy.

REFERENCES


[1] AIR 2009 SC 84.

[2]  AIR 2010 Guj. 21

[3] Law Commission of India, 228th Report on Need for Legislation to Regulate Assisted Reproductive Technology Clinics As Well As Right and The obligation of Parties to a Surrogacy, (August 2009)

[4]  AIR 2009 9 SCC 1

[5] AIR 2016 SC 4405.

[6] https://cpb-us-e1.wpmucdn.com/blogs.cornell.edu/dist/2/7529/files/2017/08/Indian-Parliament-Report-102-1qs7ole.pdf.

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