This article is written by Sunil Yadav, a student of CNLU.
What is Surrogacy?
Surrogacy is a process through which a woman agrees to carry a pregnancy and give birth to a child acting as a substitute for contracted party, who cannot or don’t want to be pregnant and produce a child. The word surrogate had its origin from Latin word ‘Surrogatus’ past participle of ‘Surrogare’ meaning substitute, that is, a person appointed to act in place of other. So, a surrogate mother is one who bears the child on behalf of another person who cannot or don’t want to carry child in her womb and give birth to child.Black law dictionary categorizes surrogacy in two classes – Gestational and Traditional Surrogacy.
Gestational Surrogacy- A pregnancy in which one woman (genetic mother) provides the egg, which is fertilized, and another woman (the surrogate mother) carries the fetus and gives birth to the child.
Traditional Surrogacy- A traditional surrogacy is a kind of a genetically contracted motherhood as a surrogate mother is impregnated with the sperm of the intended father, and the child born shares the make-up of the commissioning father and surrogate mother.
There are two more types of surrogacy namely Commercial and Altruistic surrogacy.
Commercial surrogacy- It is a type of Gestational surrogacy in which the woman (surrogate mother) is paid for carrying a baby in the womb, and delivers it successfully to intended parents of child. Commercial surrogacy is often referred with different types of names such as ‘Wombs for rent’, ‘Baby Farm’ or ‘outsourced pregnancies’.
Altruistic Surrogacy- A pregnancy in which the woman (surrogate mother) bears the child for other party, but she is not paid financially for acting as a carrier of baby and delivering it successfully. But the hospital expenses and all other monetary needs in the process of carrying and delivering child is taken care by the future parents of child.
Legal Aspect of Surrogacy in India
History of surrogacy in India can be look back when world’s second and India’s first baby Kanpuria popularly known as Durga was on 3rd Oct 1978 from IVF(in Vitro fertilization) since, then the surrogacy laws has not evolved much, but the commercial industry has shown progress tremendously.
Although surrogacy is legal in India, yet there is no codified law in India. Cases of surrogacy are governed with guidelines issued by ICMR (Indian Council of Medical Research), a new bill called ART (Assisted Reproductive Technology) was proposed in 2008 and it has been revised in 2010 and in 2012, but still the bills will be implemented in the country.
The agreement between the surrogate mother and the desired party is done through the clinic from which parents choose to have a surrogate baby. The laws and other situation are provided to the patient as mentioned in guidelines of ICMR (Indian Council of Medical Research). But now different rules have been mentioned in ART (Assisted reproductive Technologies Bill) which clearly defines every possible aspect of surrogacy agreement and different complication of agreement. The Rights of Surrogate mother, Rights of Child, and Rights of party who want a surrogate mother.
Salient features of ART bill
Rights of Surrogate mother
A woman can act as surrogate for only five successful live birth including her own children. The child born will be the responsibility of the person or persons availing the facility of a surrogate mother, they are legally bound to accept custody of the child. If not accepted, it will be an offense according to the bill proposed.
No woman less than twenty one years old and not more than thirty five years old can act as a surrogate mother according to this bill, in case of failed embryo transfer woman will be paid financially on mutual consent between the parties, she cannot act for more than three embryo transfer for same couple.
All the information about the surrogate mother or potential surrogate mother shall be kept confidential and should not be disclosed. If the surrogate mother want to hide her identity with the potential parent of child, she is allowed to do that, in this scenario ART clinic will have to care of the confidentiality.
In the case after the birth of baby, if surrogate mother is not willing to give the child. It is clearly mentioned in the bill surrogate mother relinquishes all her rights on baby moment she enters into the agreement. She would have to handover baby to couple who contracted her to act as surrogate mother.
ART clinic will issue a certificate to woman which will say, she acted as surrogate for certain person or persons. In case of foreign couple seeking surrogacy in India, it is mandatory to appoint a local guardian who will take care of surrogate mother during and after the pregnancy. Child born will be handed over to the foreign couple or local guardian.
Gloomy features of Bill (Relating to surrogate mother Rights)
Surrogate mother don’t have any independent say in medical treatment process, nor have right to decide to abort the child in case of medical complications. In case of married surrogate mother consent of husband is compulsory, so in de-facto she don’t have any independent say in deciding agreement for surrogacy.
No provision talks about situation of death of surrogate mother during the pregnancy or while giving birth to child in case of surrogacy. Bill does not clarify, either family will get compensation or not, if yes then who will be entitled for compensation.
In case of miscarriage, nothing is written in the bill, do surrogate mother will be compensated, any extra service like counseling session or how clinic will help her to come out from psychological and mental agony.
Status of Child
Child born through surrogacy will have the same right as the child born through legitimate sexual intercourse. In case the child is born from the stored sperm of dead husband, the child will have the same right as in the case of a legitimate child born by sexual intercourse.
Child will not be entitled to access the information about surrogate mother, when he grows up but in case of some critical medical complications, when there is a need of physical verification the information can be shared with him.
For the citizenship of child born to a foreign couple through surrogacy. Although child is born in India, he will not be considered as citizen of India, citizenship will be of the nation from which the foreign couple belongs.
In specific scenario, if foreign couple get divorced before the child is born through surrogacy, the couple will be entitled of the child. This principle was formulated in Manji Yamada Vs Union of India case popularly known as Baby M case.
In case when there are no rules prescribed in the country to which the foreigner belongs government will issue identity document for child to exit the country without passport. This principle was established in Jan Balaz .V. Anand Municipality case and was further applied in Pearl Linda Van Buren Green Case in which the parents belong to different country from which one country didn’t have laws on surrogacy.
Why there is a need to enact a law?
There is an urgent need to implement ART bill after removing its gloomy features, as there is no codified law related to surrogacy in India. Bill has taken a lot of time since it was first proposed in 2008, revised in 2010, but it is still not approved by the parliament.
The surrogacy in India has evolved a lot and has taken a form of commercialization, which demands for certain restriction. If certain restrictions are not applied on this business, there will be exploitation of surrogate mother without any check. People’s indulge in these activity will get away easily as there are many open-ended guidelines in ICMR which can be interpreted to be in a comfortable situation.
There is ambiguity on certain issues which is faced by the persons who contracts for surrogate mother, as well as woman in India who is contracted to act as a surrogate mother. As the rules instructs, the foreigners who are contracting with surrogate mother in any country, they should be aware of law of land basically law relating to surrogacy of that country.
There are no proper guidelines for ART clinics, how they will carry out the process, now they are carrying out their business freely without too much check and restriction on them. After enactment of law for surrogacy in India. There will be proper structural organization of these of these clinics.
De-facto situation of surrogate women
The ground reality concerning the situation of surrogate mother is in a very miserable condition, as the woman who take up to act as surrogate mother generally belongs to rural background, and she don’t know anything about medical complications and laws related to surrogacy in India. She just do what her family instructs to do, who are generally guided by a baby broker, even the family members are not aware of all rules and specific circumstances of legal implications.
The surrogate women are treated as a bovine to produce baby, in reality ART clinic pays more attention to the person who wants a surrogate mother as they are going to churn out money from them. Rarely the women acting as surrogate are provided with all information, nor the clinic help them to understand and make them familiar with the process through which they have to undergo.
The surrogate mother only gets 1 to 1.5 % of total money charged by the commissioning parents. The Clinics don’t provide any accommodation charges to surrogate mother while she is going from the process of insemination and other medical examinations. The clinics don’t hold any responsibility if surrogate mother is not accepted back by the family members, right after the birth of the baby, they are left alone to survive on themselves.
In case of any discrepancies, how much compensation should be given to surrogate mother, there are no such guidelines to clinics and that’s why compensation amount varies from clinic to clinic.
Surrogacy in India has got many complication which needs to be figure out and deal in a lucid manner, the real concern should be to identify the misplaced priorities of the drafted bill, should be reconsider from the angle of surrogate mother. Many provisions to protect the rights of surrogate mother are introduced, but still after introducing such rules the problem still does not seems to find a solution. Government has to rethink and make certain rules which will protect the right of surrogate mother as well as the rights of potential parents of child who contracted with surrogate mother to fulfill their dream of having a child.