This article is written by Ankit Bhandari, a 2nd-year law student from National Law University, Assam.

Commercial Surrogacy refers to the contract  wherein a woman carries a pregnancy for another couple and a fee to woman is given in exchange of carrying and delivering a baby. After birth the child is handed over to the one for whom the woman carries the baby. Surrogacy was defined by the Warnock Committee as the practice whereby one women carries a child for another with the intention child should be handed over after birth, which implies that the carrying woman acts at the request of another women who is unable to have child herself[1]. There are two types of surrogacy namely:

  1. Traditional or Complete Surrogacy, in which the eggs of the surrogate mother are used in the conception of the child and the surrogate mother is genetically related to the child and thus more accurately considered as the biological mother of the child[2].
  2. The second type of the surrogacy arrangement is gestational carrier in which wife is incapable of carrying a growing fetus but she is fertile. The child is conceived by the vitro fertilization using wife’s eggs and husband’s sperm[3].

The history of the surrogacy goes back to the dawn of the time but modern surrogacy got its big start in 1970s. Infertility is not new, women of all the ages have experienced this and when they are unable to conceive pregnancy then one way to start the family was through the assistance of the surrogate mother. In 1976, lawyer Noel Keane brokered the legal agreement between the set of intended parents and the surrogate mother. Surrogate mother in the present case was not duly compensated for her services. Keane went on to create infertility centers arranging hundreds of the surrogate pregnancies per year. Louise joy was the first test tube baby born. While this was not the surrogate motherhood arrangement the historic event paved the way towards gestational surrogacy in the future[4].

Legality of Surrogacy

The legal aspect  relatedto surrogacy is very complex, very diverse and unsettled.  In most of the countries around the world, the  women who gives birth to the child is considered as the legal mother. But in few countries the intended parents are to be recognized as the legal parents of the child. India is one of the countries which  recognises the intended/commissioning parents as the legal parents.

In India

Commercial surrogacy has been legal in Indian since 2002. In recent times Indian has emerged as the leader in the international surrogacy reason being, availability of surrogates at lower cost as compared to the other nations. Indian clinics are becoming more competitive not only in matter of pricing but also in the hiring of the retention of Indian females surrogates. The Honorable Supreme Court of India through Manji Yamada Case[5] held that commercial surrogacy  is legal in India.  As far as this case is concerned, it involved Baby Manji, born on 25-7-2008, under a surrogacy agreement executed between Japanese biological/genetic parents and an Indian surrogate mother. She became focus of legal as well as diplomatic crisis soon after her birth. Her genetic parents had divorced months before her birth. The genetic mother was refusing the child, while the father and grandmother  wanted to raise the child. In this case, it was held that if the petitioner has any grievance in relation to the order to be passed by the Central Government, such remedy, as is available in law may be invalid. It is also to be noted that the Commissions for Protection of Child Rights Act, 2005 has b-een enacted for the constitution of a National Commission and the State Commission for protection of child rights and children’s courts for providing speedy trial of offences against children or of violation of child rights and for matters connected therewith and incidental thereto. In the present case, if any action is to be taken that has to be taken by the Commission. Section 13 which appears in Chapter III of the Act is of considerable importance[6].

In another case of the Jan Balaz v Union of India[7] question in front of Gujarat High Court was that whether a child born to a surrogate mother has an Indian national whose father is a foreign nation would get the citizenship of Indian or not? . Gujarat High Court  bestowed Indian citizenship upon the twin babies fathered through compensated by a German nation. In relation of the surrogated mother to the child she is carrying is nothing but womb leasing or womb for rent. After the birth of the child she has no right to keep the child because she is neither the mother (where both ova and sperm are from different persons) nor the owner of the genetic material. She is only a contractor who is willing to give the end product once the contract between her and the person is fulfilled[8]. If any person wants to deal with pre-requisites of commercial surrogacy there is no uniform law at time in India, but owing to growing demand for the surrogacy in India and protection of child rights[9]. Government has drafted a legislationknown as the Assisted Reproductive Technology (Regulation) Bill 2008[10].For the time being guidelines for accreditation, supervision and regulation of Assisted Reproductive Technology clinics formulated by the Indian Council of Medical Research and National Academy of Medical Sciences are used as a basic platform and the code for the purpose of conducting surrogacy in India. The extract form of the guideline is given below:

  • A child born through surrogacy must be adopted by the genetic (biological) parents unless they can establish through genetic (DNA) fingerprinting (of which the records will be maintained in the clinic) that the child is theirs. Surrogacy by assisted conception should normally be considered only for patients for whom it would be physically or medically impossible to carry a baby to term.
  • Payments to surrogate mothers should cover all genuine expenses associated with the pregnancy. Documentary evidence of the financial arrangement for surrogacy must be available. The ART center should not be involved in this monetary aspect.
  • Advertisements regarding surrogacy should not be made by the ART clinic. Theresponsibilityof finding a surrogate mother, through advertisement orotherwise, should rest with the couple, or a semen bank.
  • A surrogate mother should not be over 45 years of age. Before accepting a woman as a possible surrogate for a particular couple’s child, the ART clinic must ensure (and put on record) that the woman satisfies all the testable criteria to go through a successful full-term pregnancy
  • A relative, a known person, as well as a person unknown to the couple may act as a surrogate mother for the couple. In the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate.
  • A prospective surrogate mother must be tested for HIV and shown to baser negative for this virus just before embryo transfer. She must also provide a written certificate that she has not had a drug intravenously administered into her through a shared syringe, she has not undergone blood transfusion and she and her husband has had no extramarital relationship in the last six months.
  • The prospective surrogate mother must also declare that she will not use drugs intravenously and not undergo blood transfusion expecting blood obtained through a certified blood bank
  • No woman may act as a surrogate more than thrice in her lifetime.[11]

Recommendations by Law Commission

The Law Commission of India has submitted its 228th Report on “Need For Legislation To Regulate Assisted Reproductive Technology Clinics As Well As Rights And Obligations Of Parties To A Surrogacy.” The following observations had been made by the Law Commission: –

 (a) Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

(b) A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

(c) A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

(d) One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

(e) Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

(f) The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

(g) Right to privacy of donor as well as surrogate mother should be protected.

(h) Sex-selective surrogacy should be prohibited.

(i) Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.[12]

Conclusion

At the end of the discussion it can be said that right to reproduce is inborn human right as well as fundamental, surrogacy is the one way to conquer biological and social infertility. It provides medically infertile couples and socially infertile individuals who are unwilling to married to chance to have child of their own. Legalization of gestational surrogacy would aim to protect the surrogate’s interests as well as those of the intended parents and baby born out of surrogacy.

[1] Stauch, M., and Wheat,K. with Tingle J., 2006. “Text, Cases & Materials on Medical Law”, 3rd Edition,New York: Routlage, p.389.

[2] Ibid

[3] Ibid

[4] Information on Surrogacy.2008 History of Surrogacy, http://www.information-on-surrogacy.com/history-of-surrogacy.html

[5] Baby Manji Yamada v Union of India and Another (2008) 13 SCC 518

[6] From L.P.A No. 2151 of 2009, High Court of Gujarat

[7] Anita Rao, Surrogate Motherhood-legal Perspective as cited in Kelra,K.,2010. Surrogacy Arrangements: Legal and Social Issues. Journal of Law Teachers of India. Volume 1(Issue No.1-2)p.131

[8] India’s Legislation of commercial surrogacy, http://www.indian-surrogacy.com/item/india-legalisation-of-commercial-surrogacy.html.

[9] Ibid

[10] Ibid

[11] Hari,G.R.,2009 FEWBASICS FROM ICMR GUIDELINES,”http://blog.indiansurrogacylaw.com/2009/01/few-basics-from”

[12] 228th law commission report, “http://lawcommissionofindia.nic.in/reports/report228.pdf”

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