In this blogpost, Komal Rastogi, Student, Nirma University, Ahmedabad, writes about the legal rights of a surrogate mother, its criticisms and the government initiatives on the rights of a surrogate mother.

Nature has bestowed women with one of the most aesthetic capacity of procreating a life within herself. The birth of a child is regarded as the most beautiful thing that happened to a parent. There are certain ill-fated women who cannot bear a child due to certain physiological conditions such as a blockage in the fallopian tube, or due to the weak uterus. But now, with the advancement in the field of medicine, one of the most magnificent gift to the human kind is in the form of surrogacy.

Surrogacy is a well-accepted method of reproduction in which a woman agrees to become pregnant for the gestation purpose and give birth to a child for a contracted party. Gestational surrogacy is a kind of surrogacy in which embryo is transferred by in-veto fertilization. Since 2002, commercial surrogacy is legal in India. Surrogacy in India is only meant for couples. Gay surrogating is banned. Before 2015, foreigners were allowed to have a surrogate mother only after showing their medical visa and on the fulfilment of criteria of legally married for two years. But now, foreigners are also barred from hiring a surrogate mother from India.

There is no legislation governing surrogacy agreement in India.[1] Due to lack of legal framework, the interest of the surrogate mothers is not respected which ultimately leads to their exploitation Ranjana Kumari, Director of Centre for Social Research (CSR) stated that “Due to the commercialization of surrogacy, the plight of the surrogate mother and the unborn child is often ignored. There is a need for a concrete legal framework to monitor and regulate the existing surrogacy system to safeguard the interests of surrogate mother and the child.”[2]

It is an acknowledged fact that whatever human beings have invented, they have misused it more than using it for the betterment of mankind. Surrogacy is no exception to this. The commercialization of surrogacy has elevated the fears of the black market and baby selling; turning disadvantaged women into baby producers.

Commercial surrogacy degrades the quality of pregnancy to a service and converts an infant to a product. Similar to dealing with any other commercial products, people often lay down conditions to have a baby as if they are purchasing goods.

Women who are taking the assignments of a surrogate mother usually come from a lower class or a lower middle-class background especially those who are in need of money. Due to the lack of provisions and laws in India, surrogate mothers are exploited, and most of the benefits are taken by commercial agencies and middlemen. There is no transparency in the whole system of surrogacy. The amount of money which a surrogate mother get is very diminutive.

The condition of a surrogate mother is very miserable. The illiterate women of the rural background are forced by their spouse to be a surrogate to gain money. These women do not have their rights to take decisions of their body and life.

In the case of Manji Yamda v. The Union of India, in a petition for divorce the court also had to deal with the question of granting of custody of the child, the child being the one born out of the process of surrogacy. This is another reason why it is important to have proper laws for the surrogate mother.

In fact, the Indian mother did not want to go the child after surrogacy as they are personally attached to the child. These agreements of the surrogate mother have become a sales commodity and a means of livelihood for some people. There are many more problems relating to the surrogacy. There are situations where the contracting party lays down conditions for the surrogate mother, for example, they have to stay in a hostel for eight months on the pretext of taking antenatal care. This is a pity situation for them because they have to stay away from their families with the perpetual fear of their families well being

Problems also arise in regard to the rights of the child. There are no rights of a child. Handing over the child after delivery may hamper breastfeeding. Children born out of surrogacy do not get the opportunity to meet his or her surrogate mother

Initiatives were taken by Government

The Law Commission of India has submitted the 228th report on “need for legislation to regulate Assisted Reproductive Technology Clinics as well as rights and obligations of parties to surrogacy.”[3] The report submitted have following observations:

Firstly, selective sex surrogacy should be banned. Secondly, the right to privacy of the surrogate mother and the donor should be protected.

Thirdly, in the case of the abortion of a surrogate mother, the matter should be governed by the Medical Termination of Pregnancy Act 1971 only.

Fourthly, there should be life insurance policy for the surrogate mother who is contracting for surrogacy.

Fifthly, “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.”[4]

Sixthly, the surrogacy agreement should provide financial support to the child in case of the death or divorce of contracting couple.

Seventhly, the arrangement for the surrogacy will continue to have a contract but with the consent of surrogate mother along with the agreement from her husband and family members to bear a child.

Eighthly, “one of the intended parents should be a donor as well because the bond of love and affection with a child primarily emanates from the biological relationship. Also, the chances of various kinds of child abuse, which have been noticed in cases of adoptions, will be reduced.”[5]

Moreover, there are many bills which have been made since 2005 named as Assisted Reproductive Technology Bill. The recent bill for the legal rights of the surrogate mother is the year 2014.

The bill provides certain rights to the surrogate mothers as they are not aware of their rights and contractual obligations which are provided to them.

The bill proposed that it should be made mandatory for the couple to accept a child from surrogate mother irrespective of any abnormality or gender of the child.

The contractual agreement should make it compulsory for couples to submit a certificate indicating that child born through surrogacy is linked with them genetically.

The other provision mentioned in the bill is that the age of the surrogate mother should not be less than 23 years, and anyone can be a surrogate mother either a single parent, widow, divorced or married women.

The bill also included various other provisions to regulate the Assisted Reproductive Technology Clinics in India. “No assisted reproductive technology clinic shall offer to provide a couple with a child of a pre-determined sex.”[6]

Conclusion

Although the cases which go to courts are dealt by judges in the way of providing guidelines such as foreigners are barred from hiring a surrogate mother in India or gay people are not allowed to have a child through surrogacy. But there is no specific law that can govern the legal rights of a surrogate mother. It has been observed that there are certain bills which are made for the rights of the surrogate mother, but the bill has always been put on hold. There are almost 4-5 bills of Assisted Reproductive Technology which are pending in the Lok Sabha, and none of them has been looked into properly. Hence, it is an urgent need for the country to have explicit laws on the legal rights of the surrogate mother.

[1] Retrieved on http://surrogacycentreindia.com/legal-considerations.html

[2] Retrieved on http://www.thehindu.com/news/national/not-enough-safeguards-for-surrogate-mother-child-says-study/article4924014.ece

[3] Retrieved on http://surrogacylawsindia.com/legality.php?id=%207andmenu_id=71

[4] Ibid

[5] Ibid

[6] Retrieved on http://www.gktoday.in/blog/draft-art-regulation-bill-2014/