This article has been written by Ananya Bose, a student at Hidayatullah National Law University, Raipur. This article talks about the legality of surrogacy in India; the laws about it; as well as the judicial views.

This article has been published by Sneha Mahawar.

Introduction

Surrogacy, as a generic term, is a legal arrangement between a woman, also known as the surrogate, and the intended parents who are willing to have a child. In modern times, this arrangement has become common and acceptable in society. Many people opt for surrogacy if the mother or the woman who intends on having a child cannot conceive one for a variety of medical or personal reasons. Having a baby is likely a threat to the life of a mother. Surrogacy is a blessing for parents or people who intend on having a baby but are unable to, which makes it even more important to have proper regulations on this matter. Surrogacy is legal in India in the form of Gestational Surrogacy.

Types of surrogacy in India

 There are two types of surrogacy that are in practice in India. They are:

  • Surrogacy in the traditional sense
  • Gestational Surrogacy

Surrogacy in the traditional sense

Traditionally, the eggs of the surrogate mother are used. Here, egg donation is not necessary since the egg of the surrogate mother is used. 

The intrauterine insemination method is used in traditional surrogacy. It is a simple method where the surrogate need not go through many fertility treatments. The intended mother need not take any treatment or undergo the egg retrieval process since her eggs are never used.

Gestational surrogacy

In this type, an egg donor is required to create the embryo that the surrogate mother would carry. Here, the In Vitro Fertilisation process is used. The embryo is created using the eggs of the intending mother and the sperm of the father, which then the surrogate carries. 

Surrogates usually prefer this type of surrogacy since there is no emotional connection, i.e., she is not the biological mother of the child.

This type of surrogacy is costlier since both the women need to go through different fertility treatments as well as egg retrievals.

Why was commercial surrogacy banned

While surrogacy is a boon for parents who are not able to conceive a child or a single parent who wants to start a family with a baby, it can also lead to the exploitation of the child as well as the woman conceiving the child. Here are a few reasons why commercial surrogacy is banned in India- 

  • The woman who has had the child or the one who is the surrogate is not treated well. This means that they have extremely bad living conditions and are often not paid even after the intended parents get the baby. The woman then has to take legal recourse and other methods that are both time-consuming as well as costly. Her body is just used to having the baby and then she is left without being compensated which creates mental, physical, and financial hardships.
  • Also, the commercialization of surrogacy has led to an increase in child trafficking. Child traffickers could easily get a baby by often paying a meagre amount or not paying at all.
  • There have also been cases where the child’s health is extremely poor, such as low weight is harmful to the child in the short as well as the long term.
  • Surrogacy has led to the commodification of children, raising ethical difficulties. It is well-known for breaking the bond between children and their mothers, as well as interfering with natural processes.
  • In addition to legal difficulties, surrogacy has psychological repercussions. Surrogacy-related legal and psychological issues have surfaced in India on various occasions. Women have been mentally harassed or intimidated in some instances of surrogacy exploitation. They get forced into the decision or their decision to become a surrogate is not respected.

Legal provisions relating to surrogacy in India

Following are some of the legal regulations that exist in India at the current time:

The Indian Council of Medical Research Guidelines, 2005

These guidelines were drafted to regulate the conduct of the Assisted Reproductive Technology clinics that provide surrogacy treatments in India. This guideline outlined how fertility clinics should employ Assisted Reproductive Technology (ART) operations or treatments. Although this was before the ART Bill, these Guidelines are solely advisory and are not legally binding.

The Surrogacy Regulation Bill, 2019

Commercial surrogacy is prohibited by the Bill, however altruistic surrogacy is permitted. Other than medical expenditures and insurance coverage throughout the pregnancy, there is no monetary remuneration for the surrogate mother in altruistic surrogacy. Surrogacy performed for a monetary gain or reward (in cash or kind) along with essential medical expenditures and insurance coverage is referred to as commercial surrogacy.

A ‘certificate of essentiality’ and a ‘certificate of eligibility should be granted by the competent authority to the intended couple.

There are a few conditions that need to be fulfilled to get a certificate of essentiality, which are as follows:

  1. A certificate of infertility is needed to prove that one or both members of the couple wanting to have the baby are infertile or unable to conceive a baby from a District Medical Board.
  2. The Magistrate Court needs to pass an order regarding the custody of the surrogate child.
  3. Insurance for 16 months in the name of the surrogate mother is needed after delivery of the baby covering the postpartum complications.

The offenses included under the Bill are

  1. Advertising surrogacy or commercialization of surrogacy.
  2. The exploitation of the surrogate mother by the intending parents.
  3. A surrogate kid is abandoned, exploited, or disowned.
  4. Selling or importing human embryos or gametes.

The penalty for such an offense ranges from up to 10 years of imprisonment and up to 10 lakh rupees fine.

The Assisted Reproductive Technology Act, 2021

In India, surrogacy is allowed for married couples who have Indian citizenship. However, in the case of Assisted Reproductive Technology Act(ART), it is available to all married couples, live-in partners, single women, and also foreigners. This bill has the provision for a National Board, having the authority granted by the Code of Civil Procedure to a civil court. According to the health ministry of our country, there are less than 1000 clinics for surrogacy while there are more than 40,000 for ART.

ART has become a source of medical tourism in India and the growth of clinics providing this service is increasing day by day. Gamete donation, intrauterine insemination, in-vitro fertilization, intracytoplasmic sperm injection, and pre-implantation genetic testing are all available.

India currently lacks established ART practicing clinics. The Lok Sabha enacted a Bill that regulates and supervises ART facilities and ART banks, despite concerns about their ethical, medical, and legal elements.

Under the provisions of the Bill, ART would consist of all the techniques which are required for an attempt to get the woman pregnant. From putting the gamete or embryo into a woman’s reproductive system to handling sperm or oocytes outside the human body.

The Act defines ART banks that would provide and supply the necessary items. These services would be available to women above the legal age for marriage but below the age of 50 and also to the man above the legal marriage age and below the age of 55 years.

Not only does the act provide for the ART banks and other facilities it all sets up boards for the regulation of the Act. 

NATIONAL BOARD 

This Board has been formed to suggest and advise the government on various policy matters. This Board recommends the necessary and minimum standards for the infrastructure labs, and manpower like doctors and nurses to be employed in the clinics and banks. These would see if the bill is being implemented properly as well as recommend changes with time. 

NATIONAL REGISTRY

It will feature a single database with information on all clinics and banks around the country, as well as the nature and types of services offered and the outcomes of those services. The register will submit the information to the National Board, which will use it to develop regulations and standards.

REGISTRATION AUTHORITY 

These would consist of a chairperson, who has to be an officer of the health department ranking above the joint secretary. A vice-chairman ranking above the joint director in the health department, a woman who holds an eminent position in a women’s organisation, a law officer from the department of law, and a registered medical practitioner that holds an eminent position in the field.

The registration authority’s responsibilities will include: granting, suspending, or cancelling the registration of ART centres; enforcing the standards and overseeing the law’s execution; complaints and feedback of any violation of provisions, pursuing legal action against the misapplication of ART, and initiating investigations; and suggesting to the National and State Boards on how to alter the rules in light of technological and social changes.

The Surrogacy (Regulation) Act, 2021 

This Bill was passed in early December of 2021. Some of the key features of the Act include the following-

  • All the clinics providing the surrogacy treatment and facilities need to be registered under this Act and people practicing in those clinics need to qualify as per the criteria given in this bill.
  • Every facility that performs surrogacy treatments must apply for registration within sixty days after the competent authority’s appointment. Every three years, registration must be renewed. 
  • Commercial surrogacy is prohibited in any form by any surrogacy clinic, gynaecologist, embryologist, or other medical practitioner. Only altruistic surrogacy is permissible under the 2021 Act.
  • The intending couple i.e., the couple wanting to have the baby must be legally married in line with the laws of India. The age of the female should be between 25-50 years and that of the male should be 26-55 years. Also, another important condition is that they shouldn’t be having any other adopted or conceived child through surrogacy or naturally.
  • The mother providing this service that is the surrogate mother needs to be between the age of 35-45 years. Any woman cannot be a surrogate mother more than once in her entire lifetime. 
  • The National/State Assisted Reproductive Technology and Surrogacy Board must provide a ‘Certificate of Essentiality/Infertility’ to an intended couple who has a medical need for surrogacy. 
  • The surrogate mother must be informed of all known negative effects and after-effects of the operation. In addition, the surrogate mother must provide written informed permission in the language she understands.
  • According to this Bill, there would be a Registry being installed called the National Assisted Reproductive Technology that would handle the registration of the clinic providing the surrogacy treatment. 

According to this Act, any couple who takes a baby through commercial surrogacy shall be held liable to pay a fine of up to 50,000 rupees as well as imprisonment of 5 years. Moreover, in case the same offense is committed multiple times, the fine shall go up to 1 lakh and the jail time to 10 years. Any individual, organization, or clinic found to be involved in the exploitation of surrogate mothers or children born via surrogacy faces a maximum penalty of ten years in jail and a fine of Rs ten lakhs. 

Lacunae in the Surrogacy (Regulation) Act, 2021

Beneficiaries of the Act

The Act is restricted to only two categories of people i.e., the intending couple who are legally married and according to the laws of India, and that have a certificate of infertility can use this facility. The couple needs to be between the age of 25 to 50 for the females and 26 to 55 years for the males. The other category is the intended woman who is either a widow or a divorcee between the age of 35-45 years can opt for this treatment. 

This eliminates a segment of the population, such as unmarried women who want to be mothers but are unable to conceive. The irony here is that, although purportedly embracing modernity, this legislation maintains the conventional taboo against childbirth without marriage. A woman is not allowed to use surrogacy services in case she wants to have the child but is not able to bear it due to many reasons.

Not only is the term couple been used only for a married couple of the legal marriage ages but leaves out any man and woman who are in a live-in relationship to avail of this service. This promotes the institution of marriage. This Act also leaves behind those couples where a partner or both of them suffer from chronic disease and there are chances for them to transfer the same to their baby, 

Although Section 4(ii)(e) allows surrogacy in circumstances when the National Assisted Reproductive Technology and Surrogacy Board identifies a condition or disease, the Act’s ambiguity about the conditions or diseases under which it is permissible endures and is subject to the Board’s view.

LGBTQIA+ community exclusion

In line with the gender bias that still exists in our society, this Act only allows a legally married man and woman in India to get a baby through this method, and thus the non-binary and the same-sex couple are not able to enjoy the parenthood even if they wish to. Though in the case of Navtej Singh v. Union of India, 2018, the Supreme court decriminalized homosexuality, same-sex marriage is still not legal in India hence homosexual couples do not come under the purview of this Act. The Sections also focus only on a man and a woman which only implies that only heterosexual couples can enjoy this facility.

They need to recognize the LGBTQ community is critical in promoting equality in society, which every citizen of India is entitled to under the Indian Constitution’s fundamental rights. The Supreme Court had to deal with the topic of surrogacy for the first time in the case of Baby Manji Yamada v. Union of India (2008). Surrogacy was acknowledged as a means of accepting parenting by the court, and the parent might be a single parent or a homosexual couple. The Act’s implementation has fully invalidated the latter. As a result, it is necessary to grant the status and privilege of bearing children not just to heterosexual couples, but also to gay couples and non-binary individuals.

Demerits of commercial surrogacy being prohibited

This type of surrogacy was made legal in India in the year 2002. However, the absence of laws and governing bodies for the commercialization of this process led to the exploitation of the woman and the child who was forced to live in bad and unhygienic conditions. The Law Commission of India in the year 2009 realized that there is exploitation and identified the need for the government to come up with the regulations for the same for the interests of the people. The 228th report mentioned how a woman or a wife in the Indian household is respected only when she can have a child hence proving the masculinity and potency of her husband. The existing poverty in India made the availability of surrogates cheap which led to their exploitation at various levels. 

Altruistic surrogacy is when the surrogate receives no compensation other than any expenditures that may be prescribed or incurred owing to insurance coverage or medical expenses. Meanwhile, commercial surrogacy happens when the surrogate’s services are marketed, and she receives ‘payment, reward, benefit, fees, remuneration, or monetary incentive in cash or kind’ in addition to the medical bills and other specified charges and insurance coverage.

While it is necessary to regulate surrogacy keeping in mind the exploitation, banning it is not a solution. In discussing the citizenship of the intended parents and remuneration of the surrogate mother to prevent exploitation, the government should try to regulate and monitor the laws. 

Another problem with the commercialization of this is the fact that here in the contract of surrogacy the object of consideration is a life i.e a human or a baby. Thus, while drafting a contract between the intended parent and the surrogate, the provisions must be written in such a way that they do not disadvantage any party and are drafted with the unborn child’s best interests in mind. Commercial surrogacy cannot be utilized as a source of income or exploited in any manner since Section 4(iii)(b)(IV) already forbids a woman from being a surrogate mother more than once. Where a surrogate is registered on an internet platform accessible to all licensed surrogacy clinics, proper restrictions can be made available to prohibit her from functioning as a surrogate more than once in her lifetime.

There are many countries like Israel, South Africa, and Russia that have tight laws for commercial surrogacy, and these are governed by the state authorities. The legalization of commercial surrogacy would help reduce the vast illegal market of surrogacy which put the surrogate and the child in a vulnerable situation. While there might be contention about the dignity of a woman when she is paid in exchange for her baby, these arguments are already settled in the case of Johnson v. Calvert. 

Thus, commercial surrogacy should be legalized since it not only serves to raise the living standards of the financially disadvantaged but also helps to prevent unlawful surrogacy from occurring as a result of a full prohibition on commercial surrogacy rather than regulation and control.

Traditional surrogacy must be included

As discussed in the sections above, two types of surrogacy exist. However, the 2021 act only allows for gestational surrogacy. Any woman who provides her gametes as a surrogate is prohibited under Section 4(iii)(b)(III). According to Section 8 of the Act, the surrogate child is treated as the biological child of the intended couple or intended woman, as the case may be, and has the same rights and privileges as a natural child under the legislation in effect at the time.

The traditional method is a very useful method that would help to include the LGBTQI+ community to have a child or those mothers who are unfortunately not able to produce healthy eggs for reproduction. Surrogacy like this is advantageous since it lowers the expense of the procedure. In comparison to gestational surrogacy, the amount of medical treatments that the surrogate mother must undertake is also reduced. In case, the intended mother’s egg fails to fertilize, there is no need to find another donor for fertilization since the surrogate’s egg can be used in that case. Furthermore, since the egg does not need to be retrieved with the sperm outside the womb, the intended father’s (or donor’s) sperm is simply artificially inseminated through the technique of intrauterine insemination or intra cervical insemination, and the process becomes less costly.

In this method, there is a link between the surrogate mother and the child biologically, hence in the case of such a process, the surrogate mother may be chosen as someone close to the intended parents’ line relatives, or close friends. The egg donor who is also a surrogate must give up her parental rights so that the intended couple can raise the kid together. Furthermore, the non-biological intended parent may be required to sign and complete the adoption procedures for the child after the birth to enforce the intending parents’ parental rights.

Judicial perspective around surrogacy in India

Baby Manjhi Yamada v. Union of India (2008)

Here, in this case, a Japanese couple came to India to have a baby through surrogacy. Now, they hired a woman from Gujrat where this practice of surrogate mother was prominent and hence the woman was the surrogate mother. Some marital problems arose between the couples and they got divorced. Now, the father of the child wanted custody of the child who was a girl. In India, a single father cannot adopt a girl child. In this case, the Supreme Court gave the rights to the grandmother of the child. The Supreme Court realized the need for regulated law for surrogacy. 

Jan Balaz v. Anand Municipality (2008)

In this case, a German couple, the intended parents hired a surrogate mother who gave birth to twins. This German couple worked in the United Kingdom, and their twins now required an Indian passport to travel. The passport officials refused to issue passports to the twins since they did not have citizenship because the procedure was being litigated in the court. There were no laws regarding surrogacy in Germany. The children were granted departure permission i.e., permission for them to leave the country, by the Supreme Court, and German authorities allowed them to adopt the children and fight for their rights.

Suchita Srivastava v. Chandigarh Administration (2009)

In this case, a woman having the mental age of 9 years old was raped and impregnated. She was living in a government institution and they came to know about the pregnancy in the 9th week of the gestation. Article 21 of the Constitution, covers the right of women regarding their reproductive choice and also other rights like carrying the baby for a full term i.e. 9 months, to give birth to the child, and her right to dignity, and privacy, the court held.

Justice K.S. Puttaswamy and anr. v. Union of India (2018)

The court found that obtaining and showing the certificate of infertility violates the right to privacy, that making it mandatory to have a certificate of infertility from the district medical board is also against society’s moral and ethical standards, and that this fundamental right must be protected.

The current scenario of surrogacy in India and the way ahead

With the increase in the number of IVF clinics in India, these have made a place for reproductive tourism to grow. People supporting commercial surrogacy see this as a commodity that can be traded. However, the reality is a bit different. Many legal and moral issues are currently surrounding commercial surrogacy.

Nonetheless, the highly disputed topic in India should be the surrogacy industry’s laissez-faire attitude, as well as the legal vacuum that allows for human rights violations, citizenship difficulties, health policies, and many other issues.

The needs, as well as rights of the woman, should be the core discussion in this modern era when it comes to surrogacy.

Some activists see full commercial potential in surrogacy. They see the ability of women to bear children as a tool to empower them in a society where they are exploited. When men get paid for being sperm donors, why can’t women be?

While there are a few who see the commercialization of the same as being socially and ethically exploitative, they also find the women being underpaid when working as a surrogate.

Women who have recurring failures must endure clinical procedures involving embryo transfer, miscarriages, and other health issues. Multiple embryo transfers, hormone therapy, and a high risk of sexually transmitted illness are all factors that must be considered. Other features of surrogacy include inadequate remuneration, the potential of human trafficking, a lack of understanding of the contract, constraints on choice, post-pregnancy concerns, mental health, and more. To support a ban, however, the damages to surrogates’ living conditions must be examined first.

Rather than outrightly banning it, effective regulations should be considered to prevent the exploitation and the emergence of the illegal market as well as human trafficking. It is time to awaken from this sleep and establish a new path based on strict regulation and enforcement procedures.

The laws should be formed such that they are in line with the feminist movement. In the case of an altruistic model, the surrogate mother goes through all the emotional and physical change just out of compassion which doesn’t seem to be practical. 

Thus, the “compensatory surrogacy model,” in which the intended parents cover losses in terms of health, wages, sufferings, and mortality, among other things, will be investigated.

Countries that have strong surrogacy laws 

Australia

Commercial surrogacy is banned in this region of the world. In the northern territory, there are no surrogacy rules. However, altruistic forms of surrogacy are allowed here. 

United Kingdom

Here, similar to India, commercial surrogacy is not legal but the other form is.

Spain

They have extremely strict laws and prohibit surrogacy in all forms. 

United States of America

There is no law on the federal level on surrogacy in the USA. However, there are some states here that have some regulations on commercial surrogacy.

Conclusion

Surrogacy in India is a complicated task. Many legal obligations need to be fulfilled even before starting the procedure. Not only this but there is also a social stigma around surrogacy. This process is still restricted mostly to the celebrities in India like Priyanka Chopra and Nick Jonas, Shilpa Shetty and Raj along with many others and we still find a lack of use of such procedures among the public. Though surrogacy is a great way for such couples to have babies, it has to become more acceptable among the people. If a woman is unable to give birth, the fact has to be accepted as it is.

There is a need to increase awareness in this field along with some clearance with regards to the pertaining law. There is a need to reconsider the banning of commercial surrogacy. The laws also need to be more inclusive of homosexual couples and single parents. There have to also be stricter laws governing the health of the child as well as the surrogate mother and their living conditions. Surrogacy is a blessing for couples or individuals who want to enjoy parenthood. 

FAQs

What claims does a surrogate have over the child?

Surrogates are not regarded as legal mothers in India. A surrogate mother cannot be biologically connected to the kid, according to ICMR Guidelines 2005.

Is it necessary to file a court application for a pre-birth and post-birth order in India, as it is in certain other countries?

In India, there is no need to file a court application for a pre-birth or post-birth order. Some nations, however, demand that they get a declaration decree from the intended parents.

What if the intended parents refused to accept responsibility for the child after birth?

The Indian law mandates the intended parents to accept the child and till now there has been no such case where the parents have refused to accept the child since they took so much pain to get that child. 

References 


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