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This article is written by Sanjana Dwivedi, Student of UPES- School of Law. In this article, the author mentions the requirements for legalization of commercial surrogacy in India.

What is Surrogacy?

A woman, when keep a child in her womb for another person or person(s), and those person(s) when mutually get into an agreement or legal agreement of doing so, than that process is called surrogacy.

What is Commercial Surrogacy?

When a surrogate mother is compensated for her services beyond the medical expenses which can be like her household expenses for some time or something similar which can help the surrogate mother than that process will be called as commercial surrogacy. 

Emergence of Surrogacy?

The concept of surrogacy is not new, it had been mentioned in “The Book of Gensis” which is written before 1513 B.C.E. It is an Egyptian concept and the word surrogacy had been emerged through latin term surrogatus, which means to act in place of another or a substitute. It is written that when Sara and Abraham was incapable of producing a child for themselves to complete their family than they came up with the idea of surrogacy and asked there servant Hager to be a surrogate for Abraham’s child, that time it was called traditional surrogacy. After that this process remained a taboo which was not respected or even recognized by people. 

Surrogacy emerged after a long wait in early 1970-1980’s, it was initiated by Noel Keane who was a lawyer by profession. He initiated the process by creating a surrogacy agency with the help of a physician named Warren J. Ringold. They felt that surrogacy is a reliable option for gay men and women who cannot conceive child. After creating this agency they now have more than 30,000 successful births by the help of surrogate arrangement laws. 

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Types of surrogacy

Surrogacy is basically of two types one is already been mentioned above and another is Altruistic Surrogacy. Altruistic Surrogacy is basically the opposite of commercial surrogacy in terms of expenses. In this kind of process, a person or person(s) can ask their friends or families to help them in conceiving their child. In this surrogacy, a person for whom the child is being conceived can only give medical expenses and insurance coverage to that particular women, whereas in commercial surrogacy a person provides additional services or charges to the surrogate mother in return of her discomfort and services.

Altruistic surrogacy is helpful for person who is choosing surrogacy as they can reduce the cost of their surrogating process. But at the same time it is not very helpful for the surrogating mother as in this process there is nothing being provided to her for her discomfort and other pregnancy related problems. 

Both the type of surrogacies has advantages and disadvantages. Both have different perspectives as well. 

Surrogacy: Domestic & International

Domestic surrogacy is simpler if the country of surrogate women and person for whom it is being done have flexible laws. The one thing which is simplest is getting citizenship if the surrogacy is domestic. But in international surrogacy that is when a person is going in a particular country and getting a surrogate baby, then citizenship and surrogacy related legal agreements may have issues because every country have their own citizenship granting rules.

Surrogacy Laws in India

Indian system has never been in favor of surrogacy laws. Though it is the 20th century but not only surrogacy but adoptions have been criticized by indian society. Supreme Court of India have made certain attempts to legalize it but failed as it is not the sole authority. Firstly, in the very famous case Baby Manjhi Yamada vs. Union of India, in this particular case there was a baby born to a Japanese couple. After some time, the husband’s visa got cancelled and he had to return back to Japan at the same time mother also refused to take the custody of child. So, the custody of the baby was given to grandmother because the baby neither had the citizenship of India nor of Japan for 3 months. Afterwards, Supreme Court gave permission to grandmother to leave India with baby. So, indirectly the apex court gave its acceptance to commercial surrogacy. 

Later on in the case of Jan Balaz vs. Union of India, in this particular case there were two twin babies born by surrogacy to a German couple. As per the laws of Germany, surrogacy is abolished so the issue was how these children will get citizenship of Germany and those children could not get the citizenship of India as dual citizenship is not allowed. To this Gujrat High Court very twistingly gave their judgment that the children will be sent to Germany and the couple can adopt them there legally. 

These two judgments provide how the Supreme Court is very welcoming to the concept. But laws as per Indian constitution is made by parliament. In 2016, after a very long wait parliament regulated a bill relating to surrogacy i.e.. Surrogacy (Regulation) Bill, 2016, this bill prohibited the commercial surrogacy and legalized altruistic surrogacy. This bill also differentiated between ART (Assisted reproduction technologies) and surrogacy. This bill was strictly criticized by many scholars. The motive behind prohibition of commercial surrogacy was to stop the trafficking of women. But parliament totally neglected the fact that altruistic surrogacy will lead to unjust manners because the surrogate mother is going all the pain but not getting anything in return. The bill had certain backdrops which leads to the amendment, which are mentioned below:

  • The bill banned commercial surrogacy which was a good initiative but it was only available to ‘heterosexual couple’ which was unjust.
  • The parliament totally neglected the point that commercial surrogacy though banned but will run in the society, but secretly. It should rather be regulated. With proper laws.
  • They allowed altruistic surrogacy which rise a debatable question to the activists that altruistic surrogacy can be exploitive as well because family members of the women can use coercive methods and undue influences to get surrogate. 
  • The parliament disregards the fact that surrogacy should be equal to adoption both ways of being parents should be equally valid. Also, they kept the ambit of the bill narrow. Eligibility criteria could have been broadened and live-in couples and gay men should also be eligible of choosing surrogacy as an option.
  • The bill mentioned that the couple going for surrogacy should be together for 5 years. This particular point was vague as well. 102nd report of Parliamentary Standing Committee on Health and Family Welfare which was tabled in August 2017 which recommended that compensated surrogacy must be allowed in India. 

After these recommendations, the bill lapsed and then in 2019 it replaced the 2016 bill. The bill again came into force with same provisions and faced criticism again. It had immensely restrictive approach. Words like ‘close relatives’ were used which was vague and ambiguous as there was no such ambit as to which relation will be considered. Its provisions like surrogacy will only be allowed to heterosexual couples with 5years of marriage were violating the fundamental right. Reasonable restrictions can be imposed by the government but these clauses were beyond reasonable restriction. Again after facing criticisms, a select committee was created to review the bill. This select committee came up with a new bill i.e., Surrogacy (Regulation) Bill, 2020.

Surrogacy (Regulation) Bill, 2020

This bill was approved by Union Cabinet after being recommended by the Rajaya Sabha select committee which reviewed it and put in some changes considering today’s society. The following changes are as follows:

  • The ambit of made vide which means that according to this bill, widows and divorced will have a chance to go for surrogacy. It provides surrogacy only to Indian-origin married couples, Indian married couples.  It added a definition in clause 2(s) of intending women who can conceive a child.
  • A national surrogacy board at the state and central level are recommended by this bill. Additionally, appropriate authorities will be made in state and union territories.
  • The term ‘close relative’ has been changed into ‘willing women’ which according to the bill means that now the intending parent can choose any women who gives a willful consent of being a surrogate mother will be allowed. 
  • It increased the insurance coverage of 16 months to 36 months.
  • It deleted the definition for “Infertility” as “incapability of producing child after 5 years of marriage” as the time period was too long. 

These were the major changes made after the recommendations.  Now the bill is pending before Rajaya Sabha. 

Why commercial surrogacy is needed?

There have been instances that commercial surrogacy is running underground in slum areas or even in urban cities, for example, see (https://timesofindia.indiatimes.com/city/kolkata/kolkata-woman-held-in-surrogacy-fraud/articleshow/74251274.cms). Now stating reasons why India needs to have commercial surrogacy legalized:

  • The main reason that it should be legalized is that in ‘ethical altruistic surrogacy’ women are not provided anything for their reproductive labor.
  • The existing bill will do more damage than good. As commercial surrogacy if banned that it will run underground. For example, in slum areas and women will tend to do it because of their socio-economic lives.  So, for this matter, India needs commercial surrogacy to be legalized with better laws and regulations.
  • The analysis and intuitions which the parliament have that altruistic surrogacy will decrease exploitation of women, they are considerably wrong. For example, taking advantage of someone in a wrongful manner is to exploit. If a thief tries to steal your gold chain than that is coercive and exploitive but when he offers to buy your gold chain that that is not exploitive. Similarly, commercial surrogacy is not inherently exploitive but for some instances, it might be. Same goes with altruistic surrogacy, it also has certain cases like if a family member uses coercion or undue influences to have a woman as there surrogate. The legalization of all surrogacy related contract will lower down the risk of all the exploitation.
  • Indian societies have this illusion with itself that commercial surrogacy is immoral and unethical. But in the true sense in commercial surrogacy, it is not the baby who is being sold but the services, reproductive labor, discomfort and other pregnancy related stuff is sold and that’s what intending parents or individual will be paying for. For example, when a person pays in a matrimonial website to get a perfect partner then they pay for their services and not for the partner as they are not being sold.
  • If commercial surrogacy will be legalized with open and accessible information than it will give similar rights to children born to know their parentage and identity, and they will be protected by law as well. It will also protect the rights of intended parents and surrogate mother.
  • The most vulnerable section of Indian societies is women. To reduce exploitation is to make direct & strict laws to it. If there will be transparency and surrogacy agencies than exploitation will reduce. 
  • If commercial surrogacy get legalized than weaker sections of India i.e., poor labors will be able to maintain their livelihood. Everything will only be done with willful consent of women. If a person is in need of a child and a woman is in a need of livelihood than it can go hand in hand and legally as well. 
  • Commercial surrogacy can be helpful for gay men. As they cannot conceive a child, adoption can be an option for them but they can go for surrogacy as well because everyone should be equal in the eyes of law. Equality will prevail if this gets legalized. 
  • Now India has increased infertility rate. Last 10 year, the number of surrogacy agency have gone up to 2,000+, now if government put a ban on commercial surrogacy than this will lead to the violation of rights of couples.
  • The ‘altruistic surrogacy’ cannot always hold or work as because of the complicated mindset of Indian families. And when something is illegal than that will most likely to be done by certain section of society.

Surrogacy laws in United States

Commercial surrogacy have been legalized in 11 states of United States. These are California, Connecticut, Delaware, District of Columbia, Maine, New Hampshire, New York, Nevada, Oregon, Rhode Island and Washington. The reasons mentioned above have successfully achieved in these states of U.S. Not only intended parents but surrogate mothers are happy with commercial surrogacy. Now United States is seeking to legalize surrogacy in all 50 states as it found to be beneficial in those 11 states. See (https://www.statnews.com/2020/02/12/paying-gestational-carriers-should-be-legal-in-all-states/

Conclusion

After doing research it appeared that if commercial surrogacy is made legal then it will be of great benefit to everyone and in every society because infertility lies everywhere. If it is done, keeping in mind the ethical values than many families can complete their family. The parents who are intended to have a surrogate child can take a support of the laws of their land and can make sure that the surrogate mother is being compensated and treated with utmost respect. It can benefit socio-economic lives of many women as well.


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