Author: Shashvat Duklan, Student at Law College Dehradun, Uttaranchal University
“The greatest good is what we do for one another”
People say that children are the greatest gift of all, but sadly not everyone of us are capable of experiencing the joy of parenthood. With the initiation of assisted reproduction these people can undergo parenthood. For those who are infertile, same-sex couples or who suffer from any medical complications which can make pregnancy impossible, surrogacy is an answer to years of trial. This research article highlights various scenarios related to surrogacy and the researcher have focused on different rules and regulations provided in bills such as the Surrogacy Regulation Bill, 2016. With the booming in surrogacy, there are increased occurrences of compound legal and ethical issues which have been thoroughly discussed in the article.
“You have never really lived until you have done something for someone who can never repay you.”
Surrogacy can be simply defined as a fertility treatment in which a woman carries and delivers a pregnancy for an infertile couple. It may be considered as a divine process as it turns a couple into parents who can’t reproduce themselves. This concept has become very attention seeking over the present years. It has become a topic of debate among in the scientific, cultural and social aspect. Researchers did a thorough research on surrogacy and its implications on religion and on nature. So, what exactly is surrogacy? Why do people do it? and does it break the laws of nature?
Surrogacy is a prearrangement usually supported by legal agreements, in which a woman agrees to bear a child for a couple who themselves are unable to bear any. The couple will be the child’s parents after delivery. In surrogacy preparations monetary compensation may or may not be involved. It’s a beautiful way that allows aspiring couples to experience parenthood. There are two types of surrogacy prevailing in India: partial or traditional surrogacy and gestational surrogacy.
In traditional surrogacy the surrogate doubles as the egg donor, that is she is the biological mother of the child she is bearing. The embryo created using the intended father’s or donor’s sperm is transferred into her body through a process called intrauterine insemination or IUI. The process is simple and virtually painless. It is mostly done in fertility clinics, there is no need to visit the hospital.
On the contrary, In Gestational Surrogacy the surrogate is not biologically related to the child. The child is conceived through a process called ‘In-Virto Fertilization’ (IVF) in which the ovum and sperm of the intended parents or donors are fertilized in a petri dish and the embryo is inserted into surrogate’s uterus. For this process the surrogate has to go to a specialist hospital. There is more risk involved in this type of surrogacy and the chances of getting pregnant are lower.
The conditions and the method are usually pre-decided between the parents and the surrogate. The doctor’s advice should be taken into consideration. It should be kept in mind that:
- Surrogacy is physically demanding not only you will go through the typical challenges of pregnancy but also additional screenings and fertility treatments.
- It is emotionally draining not only for the intended couple but also by the surrogate for she is carrying someone else’s baby. Counselling plays a major role in calming the mother.
- Surrogacy requires a substantial amount of time commitment. It can be time consuming that is it can even take up to a year’s time to complete the process.
HISTORY OF SURROGACY IN INDIA
Surrogacy have been rooted itself in the scenario since the biblical times. The traces of surrogacy were founded in ‘The Book of Genesis’ based on the story of Sarah and Abraham. This was a type of traditional surrogacy which gave Sarah to be a chance to become a mother.
This centuries old technique became a fruitful practice in India with the birth of world’s second and India’s first IVF baby Kanupriya alias Durga who was born in Kolkata on Oct. 3, 1978. Since then, the field of assisted reproductive technology has shown fastest developments.
Surrogacy have been a debatable topic since forever in India. Till date only gestational surrogacy is promoted that to in its nascent form. There are no codified laws for surrogacy, the laws for surrogacy are also in nascent form.
In past some decades there has been massive growth in reproductive techniques in India that includes advanced door fertilization techniques, in vitro fertilization techniques, embryo techniques and much more that has given hopes to childless couples. At one hand where intended parents are much glad to have such a procedure is available for them, there are some communities, who are not in the favour of surrogacy in India.
REASONS FAVOURING SURROGACY
Surrogacy should be known as a noble task to do. It is something that helps a childless couple to fulfil their dreams of a child. No one ever imagine a pain a mother goes through during the birth of her child and no one can even match the level of happiness and satisfaction she receives when she is handed over her child for the first time, so if by the means of surrogacy, a woman can receive what she deserves then what is the harm in that.
Here listed are the few reasons surrogacy should be promoted:
- Incompatibility of the Intended Parents to bear Pregnancy: The couples who cannot have children due to fertility issue, for such parents’ surrogacy becomes an idle process and this is the main reason that surrogacy is growing worldwide.
- Medical Complications: The couple wanting to have a baby but can’t get successful because of some medical complications, surrogacy in such cases works out for their best interest.
- Same sex couples: Surrogacy gives an opportunity to the same sex couple to get pregnant. It is the only way they can have a child because it is not possible biologically.
- Single Parents: Those who wish for a kid this can be their hope.
REASONS FOR BAN OF SURROGACY
India is a very diverse country with a very strong legislation. The one major reason for the ban of surrogacy in India was the protection given to the intended parents and the exploitation faced by the surrogates. There were no proper rules and regulation for them and it was considered as an unethical practice and surrogates had poor living condition and they were also exploited. Surrogacy agencies also get very less fund from the government. There are no codified laws related to the process of surrogacy. There has been a great debate over the topic that whether surrogacy should be banned or not?
After this massive discussion, the debate concluded that surrogacy should be banned in India.
LAWS RELATING TO SURROGACY IN INDIA
Indian government went through a sudden shock after the ban of foreign intended parents in the year 2015, this was the time when the Indian government passed new resolutions regarding the surrogacy process. In the current scenario, the laws here make it illegal for a foreign intended parent to complete surrogacy in India. In December 2018, after almost two years debate an Indian Surrogacy Law was passed. This law made certain points of debate clear and stated:
- It made commercial surrogacy in India illegal.
- It allowed only altruistic surrogacy that to for needy and infertile couples.
- It stated that that the intended couple should be married for 5 years and should possess a doctor’s certificate as a confirmation of their infertility.
- It conditions that a woman can become surrogate only once and can do it only if she is a close relative of the intended parent and is married and have a biological child.
- It banned surrogacy for single parents, homo sexual parents, and live-in couples.
The Indian Medical Research Council (ICMR) laid out surrogacy guidelines in 2002, which made the practice legal but did not give it legislative support. The guidelines laid were:
- Surrogacy arrangements are regulated by contracts between the sides containing all the conditions needing the surrogate mother’s permission to bear children.
- A surrogacy agreement should provide economic assistance for surrogate kids in the case of the death of the intended pair or individual before the child is delivered, or separation between their masculine spouse and the subsequent desire of none to allow the child to be delivered.
- One among the partner ought to be a donor as well, because of the bond tenderness and affection with a child primarily emanates from biological relationship.
- Legislation itself should recognize a surrogate baby as the commissioning Parent’s(s)lawful baby while there is no need for acceptance or possibly a parental statement.
- The surrogate kid’s certificate should comprise the expected parent’s name(s) only.
- The bill stated that the Right to privacy of donor and surrogate mother must be protected.
LEGISLATURE TO PROMOTE SURROGACY IN INDIA
India made a lot of efforts to encourage surrogacy. It has been a long procedure and some of the provisions regarding surrogacy are mentioned below.
The Indian Council Medical Research Guidelines, 2006
The ICMR established guidelines for authorization, administration and regulation of ART clinics in India. The standard guidelines have trundled out points to uphold the rights of a surrogate mother. It did not restrict commercial surrogacy and Foreign Nationals availing these services. Penalties and offences were also not mentioned in the guidelines.
The Assisted Reproductive Technology Regulation Bill, 2008
The bill contained 9 chapters under which the draft had 50 clauses. Following are the comments:
- The Bill recognizes surrogacy and enforceability of surrogacy agreements.
- The Bill provides that a foreign or foreign couple not residing in India or a non-resident Indian or couple seeking surrogacy in India shall appoint a local guardian who is legally responsible for the care of the surrogate during and after pregnancy until the child is delivered to a foreign couple or to a local guardian.
- The Bill also provides that, as the case may be, a child born to a married couple or a single person using ART is presumed to be the 17-legitimate child of a couple or individual.
- The Bill further provides that at any given time, a couple or an individual shall not be served by more than one surrogate.
The Surrogacy (Regulation) Bill, 2016
The Surrogacy (regulation) bill was introduced in Lok Sabha on 21st November, 2016 and was referred to standing committee on 12th January, 2017. Subsequently on 10th August 2017 the committee gave its report on the same to Lok Sabha and on the basis of that report Lok Sabha passed the bill on 19th December 2018.
Crucial points of the bill:
- The main objective was to allow traditional altruistic surrogacy to the intending infertile Indian married couple of 23-50 years and 26-55 years for female and male respectively.
- The couple opting for surrogacy should be married for at least five years and should be Indian citizens.
- The intending couples shall not abandon the child, and the child born out of surrogacy procedure shall have the same rights and privileges as of the biological child.
- The surrogate mother should be a close relative of the intended couple and should be married and should have a biological child of their own.
- The surrogate mother should be allowed to act as a surrogate mother only once that is she can’t go through surrogacy more than one time.
- That no person or organization of any kind shall undertake commercial surrogacy or issue advertisements, abandon the child born through surrogacy, exploit the surrogate mother, sell human embryo or import human embryo and contravention of the said provisions shall be an offence punishable with imprisonment for a term which shall not be less than ten years and with fine, which may extend to ten lakh rupees.
What was the need for the Surrogacy Bill?
There was no specified legislation to control the practice of surrogacy in India. The Council of Medical Research in the year 2015 issued some guidelines regarding Surrogacy which were contradicting to the guidelines mentioned in the bill of 2016 in the sense that they talked about the monetary compensation which was awarded to the surrogate mother by the intended couple.
In the case of Baby Manji Yamada v. Union of India,
Supreme court realised that there was a lack of legislation relating to surrogacy in India. India was facing problems regarding surrogacy because of the lack of legislation. In 2009 it was detected by Law Commission of India that Foreign Nationals were fascinated because surrogate mother was available at lower charges due to poverty that led to exploitation of poor women.
Further, in the case of Jan Balaz v. Anand Municipality and ors.
It may be significant to note that that surrogacy agreement was entered in the name of intending father and the second respondent, surrogate mother whose name is mentioned as the wife of intending father which led to vexatious legal issues in the issue of birth certificate for the surrogate child. However, the common truth in both the cases surrogacy agreement was entered into whose sole purpose of the agreement is to ensure hand over of the surrogate child to the intending couple in return for a fixed payment of money and that the surrogate child would derive all inheritance of a child of biological parents from the intending parent”. However, during the course of adjudication of both these cases the court opined that there was an absence of a regulatory statutory law to address issues and concerns arising out of or related to the conduct of surrogacy in India. The Court directed for the early enactment of a statute for the same considering it.
Third Party Reproduction
With the development of fresh medical techniques using in vitro fertilization (IVF) in the 1980s, the choices accessible to overcome infertility improved. Nevertheless, along with the refinement of methods and fresh opportunities, including gamete donation and surrogacy, issues were raised about the complexity of parenthood, embryo therapy and exploitation of females Moral reasoning and ethical discussion about damage to females, family buildings and kids were set aside in the hubris of this medical conquest of infertility as physicians concentrated on providentially. It became progressively apparent that therapy for other medical circumstances was unlike therapy for infertile individuals with fresh aided reproductive methods. Not only was reproductive therapy burdened with ethical issues for infertile clients associated with elevated expenses, hormonal stimulation, embryo transport and manipulation, and stigma and psychological disturbance, it also brought potential damage to third sides such as suppliers of eggs and surrogates This added another aspect to infertility procedures, similar to sperm donation: privacy, safe treatment. They weren’t quite patients, they didn’t share the same connection with the medical practitioner, but they still had a professional obligation. Therefore, when this unregulated industry soared in reaction to market pressures and request from overseas, it was not the medical technology but the destiny of gamete sponsors, surrogates, and brand kids that became the subject of interest and public rejection. Unbridled marketing in the framework of economic inequality would eventually lead to abuse; rich people and infertility centres could fuel bargaining in donor or surrogacy agreements. The picture of the typical Indian surrogate— a slum resident, financially strained, and likely desperate — deepened the belief that this was an injustice problem at core. When cross-border customers and Indian slum dwellers were engaged in the surrogacy agreement, the polarization became severe.
Having a child is considered one of the best gifts a couple can get. A childless couple only receive sympathy from everyone, but is it the only thing they should receive to be consoled? Keys to problematic difficulties, however, do not appear in an instant. Courts must scrutinise solutions problem of childlessness reveals that to decide the potentially grave ramifications of their results. A review of surrogate motherhood as a solution to the costs outweighs its benefits. Court can hold the contract of a surrogate mother void in the case of baby selling business, exploitation of the surrogate mother, or if she wants to promote her family.
Surrogacy has become a secure way to have a child for the infertile household. Nevertheless, apart from moral dissent on this problem, there are legislative differences that sometimes make the surrogate parents the object of blackmail and crime. In certain nations, as indicated by the law, it’s conceivable to record the organic guardians as the tyke’s folks just with the assent of a surrogate mother, what permits an escape clause for blackmail from her part, for instance, a condo or sums surpassing determined previously. Likewise, there is a need in a law ensuring the genuine guardians of the maltreatment by a surrogate mother when she takes a stab at taking officially enrolled tyke by power, when she has just got her expense, clarifying that she “altered her perspective.” For this situation, the guardians hazard being left without an infant and no cash – the Court may leave the kid with a lady who gave a birth to it. There’s likewise the contrary circumstance when a kid was brought into the world with an illness and its natural guardians would prefer not to lift him up and decline to pay, as well, and surrogate mother dangers to remain with another person’s wiped-out tyke and no cash. The judiciary should involve itself in surrogate parenting only to the extent that custody determinations need to be made. Although surrogate mother contract may be one factor in determining custody and termination of the surrogate mother’s parental rights, the best interests of the child should prevail. As equality and volunteerism may be rare in surrogacy agreements, arrangements to ensure informed consent, proper counselling and legal assistance for drawing up contracts for safe procedures, as well as total health care insurance and compensation, must be ensured through the state regulatory institutions.
Thus, when a child is born to a surrogate mother, the best interests of the child should govern a court’s determination as to that child’s custody and as to the termination of the surrogate mother’s parental rights.
 Hindustan Times
 AIR 2008, SCC 518
 AIR 2009, SC