This article is written by Abhay, a student from Kirit P. Mehta School of Law, NMIMS. This is a comprehensive article which deals with various aspects associated with the process of Surrogacy.

Introduction

Although surrogacy has often created ethical concerns, the rise in these procedures makes the problem even more urgent. The economy of surrogate pregnancy progresses faster than our perception of its consequences with hundreds of new clinics ready to open. A surrogate is a viable alternative and becoming an increasingly common choice for couples who can not have children.

A surrogate mother is a woman who has decided to become pregnant and deliver a child specifically for a couple she has a contract with. A surrogate mother maybe the baby’s genetic mother, in which case medical practitioners help to fertilize her eggs; or she can be a gestational carrier and have an embryo implanted in her uterus. 

As for Gay men, they may agree to use a conventional surrogacy in some countries; one of them may use his sperm to fertilize the surrogate mother’s egg through artificial insemination. Then, the mother bears the baby and gives birth. Also, a gay couple may select an egg donor, fertilize the donated egg, and then have the embryo inserted into a gestational carrier to bear until conception.

History

The surrogacy industry has boomed since 2002, when commercial surrogacy was legalized in India, becoming a key component of the lucrative medical tourism market in the region. Fertility clinics across India were trying to emulate the achievement of Akanksha as well as other centres, for example the small rural town of Anand in the western state of Gujarat, which was the first centre of surrogacy in the world.

Baby Manji Yamada was born to an Indian surrogate mother for a Japanese couple that split before a month of the child’s birth and left the child’s future in darkness. The biological father, Ikufumi Yamada tried to take the child back to Japan but there was no such provision in the legal system for such a case nor did the Japanese government authorize him to bring the child back home.

In the end, India’s Supreme Court had to respond and it authorized the child to move abroad with her grandmother. Baby Manji Yamada’s greatest influence has been that it has inspired India’s government to pass a law governing surrogacy.

In the landmark case Baby Manji Yamada v. Union of India, India’s Supreme Court officially legalized commercial surrogacy. In this case, the Court described “commercial surrogacy as a method of surrogacy in which a gestational carrier is compensated for carrying a child to maturity in the womb”. The related aspects of a surrogacy agreement includes the stakeholders or the parties who are thoroughly guided about the enactment of the statutory law. 

The practice of Surrogacy in India became more common and Indian surrogates became popular among intended families in developed countries, as Indian surrogacy agencies provided comparatively low fees and easier access. Using surrogacy arrangements, surrogate mothers are provided with clinical, nutritional, and general health support. The 2002 draft of the National Guidelines for the Accreditation, Supervision, and Regulation of ART Clinics in India was issued by the government in 2005. 

Before the actual prohibition of commercial surrogacy in 2015, India had been a prominent surrogacy place for others. In 2013, overseas gay couples and single parents were banned from surrogacy. In 2015, India’s government outlawed commercial surrogacy and allowed embryo entry for scientific and research purposes alone. In 2016, Lok Sabha introduced and approved a Surrogacy (Regulation) Bill intending to allow only heterosexual Indian couples married for at least five years with infertility issues to undertake altruistic or unpaid surrogacy and thus prohibited commercial surrogacy. The 2016 bill had lapsed due to the adjournment sine die of the legislative session. The bill was introduced again and ratified by the Lok Sabha in 2019. 

The Process of Surrogacy

A pair, usually a husband and wife, signs a contract with a surrogate in this process. The pregnant mother is inseminated as mentioned in the terms of the contract, carries a child, and surrenders all rights to the semen donor and his wife in respect of that child. The surrogate lady also gets a fee in return for carrying a child.

In the case of Jan Balaz v. Anand Municipality and Ors, it may be important to note the that surrogacy arrangement was entered in the name of intending father and the second respondent, the surrogate mother whose name is listed as intending father’s wife which resulted in vexatious legal matters in the subject of the surrogate child’s birth certificate.

It means that a person who supplied the sperm for fertilization maintains the child’s sole custody, and his wife will adopt it. It is also mentioned in the court orders issued before delivery, as he is mentioned as the father of the infant. Forms of consent are usually signed after the child’s delivery, however, so that the surrogate mother may make up her mind. 

The pre-born documents given by the court, identify the pair as biological parents of the child in an embryo transfer case. Their details are recorded on the birth certificate and the surrogate mother has no claim for the child.

Large numbers of couples have benefited enormously from the surrogacy or may have considered using it. Given such increased use of the process, it is especially important to question whether or not the agreement is legal. Legality problems include potential breaches of criminal laws for the selling of children. 

Issues on whether adoption is appropriate and whether the child is valid are also inherent in the agreement with the surrogate mother. The law would govern the parties to such an agreement, including certain parties’ rights with the responsibilities.

Rights of the women 

But perhaps the boom hides the raising concerns as to the rights of women who choose to be surrogate mothers, most of them from poor families and often illiterates. Surrogate mothers come from disadvantaged families and do not know their rights very well. The promotion of surrogacy has also raised the concerns of the illegal market and the trafficking of babies which leads to transforming vulnerable women into child providers.

The women are specifically chosen to be used as carrier mothers or egg donors. In India, they are picked as per appearance, compliance, and financial dependence factors. Commercial surrogacy deteriorates the process of pregnancy to a business and turns an infant into a commodity. 

As with any other consumer products, people often lay down requirements for having a baby, as if they were purchasing goods. People who take on a surrogate mother’s role generally come from a lower-middle-class background particularly one in need of cash. 

Because of India’s lack of regulations and rules, surrogate mothers are abused, and commercial companies and intermediaries eat up almost all of the profits. There is no transparency in the entire surrogacy program. The sum of money a surrogate mother gets is very less. 

The situation is very bad for a surrogate mother. The women of rural heritage are coerced to be a surrogate so that their husbands can earn money out of this. Such individuals have no right to make choices about their bodies and their lives. There are cases where the negotiating side sets requirements for the pregnant woman, for example, under the excuse of having prenatal treatment, they must remain in a specified place for eight months. 

Such women are transferred to hostels under the excuse of getting antenatal treatment for the entire length of the pregnancy. The real agenda is to protect her and to prevent the social stigma of the culture being the outcast. These women spend the entire pregnancy period thinking about the house and their babies. 

They are only permitted to go outside for antenatal visits and are only permitted to interact on Sundays with their families. The worst thing is that they’re unable to be compensated in the event of adverse results of pregnancy, and no benefits or post-pregnancy medical and psychological care is given to them.

This is a tragedy for them as they have to live away from their home. For most surrogate contracts, after the baby is born, the woman carrying the baby gives up all parental rights to the child. The surrogate mother has the right under a surrogacy obligation to be paid of all her medical and other costs so long as they contribute to her pregnancy. 

Some additional medical costs are often protected because if they are not taken good care of in a reasonable time certain problems may impact the child. The surrogate mother has the right to receive medical counselling during the pregnancy duration and beyond from the early stages of considering surrogacy. The therapy will include her and the proposed parents.

Rights of the children

Problems also exist concerning children’s rights. A child’s rights are limited. Getting the child handed after delivery can adversely affect breastfeeding. Children who are born out of surrogacy don’t get the chance to meet their surrogate.

Guidelines by the Indian Council for Medical Research 

In the year 2002, the Indian Council for Medical Research released directives governing Assisted Reproductive Technology procedures which were approved by the government in 2005. The Law Commission of India presented the 228th report on Assisted Reproductive Technology procedures addressing the significance and need for surrogacy, as well as the actions that should be taken to regulate surrogacy arrangements.

The surrogacy agreement will have to be regulated by a contract between the parties, which will include all the provisions including the approval of the surrogate mother to carry the child, the permission of her husband and other members of the family for the same, artificial insemination, medical procedures, the refund of all appropriate expenses for carrying the baby to full term, willingness to entrust the born child to the commissioning parent(s), etc. But an agreement like that should not be for commercial purposes. 

A surrogacy policy would take care of the surrogate mother’s life insurance cover. One of the intended parents should also be a donor since the bonding of affection and love with the infant originates mainly from biological relationships. The risks of different kinds of child-abuse that were found in adoption cases would be lessened. Unless the expected parent is single, then he or she will be a donor to have a surrogate child. 

If the biological (natural) parents and adoptive parents are different, adoption is the only way to get a child that is resorted to otherwise. Law itself would consider a surrogate child as the rightful child of the commissioning parents without there being a need for adoption or perhaps even a declaration of guardian. 

The surrogate child’s birth certificate will only include the names of the commissioning parent(s). Donor’s right to privacy should be protected as well as the right of the surrogate mother should also be protected. Sex-selective surrogacy is to be banned. The Medical Termination of Pregnancy Act 1971 will regulate only cases of abortion. 

Selective sex surrogacy should be forbidden. The surrogacy arrangement should provide financial assistance for the child in case of contracting a couple’s death or divorce. The bill also introduced numerous other measures to govern the Indian Assisted Reproductive Technology Clinics. No assisted reproductive technology clinic shall offer to give pre-determined sex to a couple with a child.

Assisted Reproductive Technology Bill, 2013

The Assisted Reproductive Technology Bill, 2013 does not allow commercial surrogacy which involves exchanging money for something other than paying for the mother and child’s medical expenses. The bill would exclude these from surrogacy: couples who already have one child, foreigners or Indian Overseas Citizens (OCI), holders and spouses alike, single citizens, homosexuals, and widows. 

The bill extends such rights to the surrogate mothers because they are not aware of their rights and contractual responsibilities that are granted to them. The bill suggests that it should be made compulsory for the couple to accept a child from the surrogate mother regardless of the child’s abnormality or gender. 

The contractual arrangement makes it mandatory for couples to send a certificate stating that a child born via surrogacy is genetically related to them. The other clause stated in the bill is that anyone can be a surrogate mother which includes a single parent, widow, divorced, or married woman. 

The law seeks to govern the reproductive technology clinics and doctors involved and their association with potential surrogates. The law supports the commissioning couple’s rights over those of surrogate mothers. The bill makes it obvious that there will be no protections for women involved in commercial surrogacy over the child they have contracted to raise. Its regulations state that most women aged between 21 and 35 years could be surrogates. 

In comparison to three in an earlier version, it puts the maximum number of times a woman will contract her womb for surrogacy at five live births. But it does not discuss the number of assisted reproductive cycles that a woman may undergo, which is a significant concern for the health of women. 

There are all sorts of legal documents that cover the rights and interests of the commissioning couple to cover. In the absence of clear legislation, the surrogate mother has no rights or interests, and the clauses of the ART Bill are possibly not enough. The ART law tries to strike a distinction between the lawful and the immoral, but unethical practices remain intact.

Since surrogacy is quite a new procedure in many countries, surrogate mothers’ rights have evoked many discussions and debates. The bill recognizes surrogacy arrangements and their enforcement under the rule. The surrogacy arrangements are dealt with several other contracts under the Indian Contract Act 1872 as well as other laws related to these arrangements. Both the couple/single parent and the surrogate mother must conclude a surrogacy agreement addressing all matters which will be legally binding. 

Some of the aspects of the proposed bill are that an association should be established at state and national levels to monitor & control the I.V.F. clinics and A.R.T centres, and a forum must be set up to lodge a complaint against clinics and ART centres for grievances. The surrogate mother should have been 21-35 years of age and should not have delivered more than five times including her child. 

For the same pair, surrogate mothers wouldn’t be permitted to undertake embryo transfer more than 3 times. Unless the surrogate is a married lady it will require her husband’s permission so that she can serve as a surrogate to avoid legal or marital conflict. A surrogate must be tested for STD, communicable diseases, and blood transfusion shouldn’t have been received during the last 6 months since these can harm the outcome of pregnancy.

All costs including surrogate medical bill benefits or other fair pregnancy and childbirth-related expenses must be covered by expected parents. A surrogacy policy would provide the provision for surrogate mother’s life insurance. The surrogate mother could also obtain financial compensation from the couple or person, as it may be the case for choosing to serve as such surrogate. 

It is believed that banks will communicate directly with surrogate mothers to save vulnerable surrogate mothers from abuse, and minimum compensation payable to the surrogate mother should be set by statute. The surrogacy agreement would also provide financial assistance for the surrogate child if the commissioning couple dies before the child is born, or divorce between the intended parents and the resulting willingness of both to take delivery of the child to prevent injustice. 

The surrogate mother will have no parental rights over the infant, and the baby’s birth certificates must bear the names of intended parents as parents to prevent legal issues. Guidelines are concerned with the status of the infant born through ART state that the infant is considered to be the legitimate child of the married / unmarried couple / single parent with all the parentage, care and inheritance rights of the attendant. 

The ART clinics must not be permitted to promote their clients for surrogacy, and couples should try ART Bank’s facilities directly. Regardless of any abnormality in the child/children, planned parents would be legally obliged to take custody of the child/children. It must always be kept private, and both the donor’s right to privacy and the surrogate mother must be covered. 

If a foreigner or NRI is pursuing surrogacy, they should enter into an arrangement with their government’s written assurance of the child’s citizenship, and they should also appoint a local guardian who will be legally responsible for the care of the surrogate during and after pregnancy until the child is born to the foreign couple or arrives in their nation. Sex-selective surrogacy should be banned, and the Medical Termination of Pregnancy Act 1971 would regulate abortions.

The Surrogacy (Regulation) Bill, 2019 

The Bill forbids commercial surrogacy but permits altruistic surrogacy. Altruistic surrogacy does not mean any financial benefits to the surrogate mother except the medical costs and insurance coverage during pregnancy. Commercial surrogacy involves surrogacy or its associated methods for just a financial gain or incentive beyond the standard medical expenditures and insurance covers. 

Surrogacy is allowed only when the intended couples are suffering from confirmed fertility issues. It has to be altruistic and not for commercial purposes. It should not be for the development of children for trafficking, pornography, or other types of exploitation and for any disorder or disease as defined in legislation. The intending couple will have the ‘certificate of essentiality‘ and the ‘certificate of eligibility‘ provided by the relevant authority.

A Certificate of Essentiality shall be given upon fulfilment of the following terms which includes a certificate of confirmed infertility from a District Medical Board of either or both members of the intending couple, a declaration of parentage and custody of the surrogate child approved by a Magistrate’s court and the insurance policy for just a duration of 16 months regulating postpartum delivery issues of the surrogate.

The eligibility certificate for the intending couple shall be given after compliance with the following conditions that also include the couple being Indian citizens and married for at least five years. The age of the wife should be between the ages of 23 and 50 and that of husband should be between the ages of 26 and 55.

If they have no living child including biological, adopted, or surrogate and that does not include a child who is mentally or physically disabled or suffers from a life-threatening disability or deadly disease as well as other circumstances that may be defined in the guidelines.

To get an approval certificate from the relevant authority, the surrogate mother must be a close relative of the intending couple. The woman should have her own child and must be between the ages of 25 and 35. The surrogate is only allowed to go through the same process once in her life. She needs to have a medical and psychological suitability certificate for surrogacy. Furthermore, the surrogate mother can not have her own surrogacy gametes.

Within 90 days of the bill becoming an Act, central and state governments shall designate one or more competent authorities. The relevant authority’s duties include the authorisation, suspension, or cancellation of surrogacy clinics. The authority must implement requirements for clinics offering surrogacy. They will examine and take measures against violations of the Bill’s provisions and propose amendments to the rules and regulations.

Surrogacy centres must not perform processes relating to surrogacy until they are licensed by the competent authority. Clinics will apply for recognition within 60 days after the date of the designation of the appropriate authority.

The central and the state governments shall be composed of the National Surrogacy Board and the State Surrogacy Board respectively. The NSB’s duties involve informing the central government on policy issues related to surrogacy, setting out the code of conduct for surrogacy clinics, and overseeing the operation of SSBs.

A child born from a surrogacy method would be regarded as the expecting couple’s biological child. A surrogate child abortion involves the surrogate mother’s written permission and authorization from the relevant authority. This authorization must comply with the  Medical Termination of Pregnancy Act, 1971. Further, before the embryo is placed in her womb, the surrogate mother would have a choice to refrain from the surrogacy.

The offences under the Bill include commercial surrogacy, abuse of the pregnant mother, abandonment, trafficking or disownment of a pregnant child, and the selling or importation of human embryos or gametes for surrogacy. The punishment for these offences is up to 10 years in jail and up to 10 lakh rupees in fine. The Bill sets out a number of violations and punishments under the Bill’s rules for certain contraventions.

Conclusion

This is an accepted fact that everything human beings have ever invented, they have made more misuse of it instead of using it for the benefit of humanity. Surrogacy is no exception. The problem of surrogate motherhood and its implications has grown for more than a decade with the convergence of the advancement of unnatural reproduction methods and the creation of a real business in some countries, including the United States, India, Ukraine, etc. 

The infant is nothing but an object or say end result of a contract in a surrogacy. It is conceived, transported, and delivered by contract, usually in exchange for money. Meanwhile, the woman is being viewed as a means of achieving the desired goal, a reproductive tool. Both the woman and the baby are viewed as objects. To quote the preamble of the Universal Declaration of Human rights, this is contrary to the appreciation of the intrinsic equality of all members of the family. And there is no clear legislation able to regulate a surrogate mother’s legal rights.

Surrogacy does seem like an enticing option as a poor surrogate mother gets much-needed support, an infertile couple receives the long-wanted biologically related baby and the nation gains foreign currency, however, the true picture shows the harsh reality. Because of a lack of adequate regulation, both surrogate mothers and prospective parents are somehow manipulated, and intermediaries and commercial companies receive the income. 

There seems to be no clarity in the entire network and owing to inconsistent laws regulating surrogacy in India, there is a risk to get embroiled in legal issues. Though ICMR released directions for accrediting, supervising, and regulating ART clinics in India in 2005, these guidelines are frequently breached. 

It is simple to understand the dissatisfaction of cross-border childless couples, who not only had to deal with language barriers but also had to face a long legal battle to get their children. Even if all happen perfectly, they will remain in India for 2-3 months after the baby’s birth to complete the procedures. 

The cross-border surrogacy contributes to questions of a child’s citizenship, nationality, motherhood, parentage, and rights. There have been times when babies are refused the country’s nationality of intended parents and this leads them to a long court battle. There had been instances in which the baby offered to a couple after surrogacy is not biologically associated with them and, in effect, is shunned by the intended parent and the poor child has to spend his life in an orphanage. 

It does seem ironic that so many Indian children are orphans, still, people indulge in surrogacy activity. In India, adopting a child is a difficult and lengthy process for those childless couples who wish to give these children a family. The Guardianship and Wards Act, 1890 provides for guardianship and not adoption. 

The Hindu Adoption and Maintenance Act, 1956 does not allow adopting a Hindu child by non-Hindus, and immigration conditions after adoption have more barriers. There is indeed a real need to amend and make the adoption process easier for everybody. That will reduce surrogacy levels. It should encourage altruistic surrogacy and not commercial surrogacy.

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