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In this blog post, Priyamvada Singh, pursuing LLB(H) from School of Law, Galgotias University, talks about surrogacy, its implications, and laws concerning surrogacy in India. She makes a comprehensive analysis of the regulations, rights, and landmark judgments concerning surrogacy in India. 

Introduction

The recent surrogate motherhood of Shilpa Shetty made top headlines in the country. Not only because it was a piece of entertainment news, but also because it brought the news concerning surrogacy in India to a new light. With celebrities like Shah Rukh, Aamir, and Karan Johar paving the way for her, this did not come as new. Earlier looked at through skeptical lenses, surrogacy has witnessed greater acceptance in recent years. 

Surrogacy and surrogate mother

The word “surrogate” has been derived from the Latin word “surrogatus” which means “appointed to act in the place of”. The method of Surrogacy requires a woman who consents to carry the baby and go through gestation for it. After the child is born, it is then handed over to the couple who sought it. The role of the woman carrying it is merely that of a gestational carrier. “Surrogacy is a well-known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child. However, she will not raise the child but hand it over to the contracted party. She may be the child’s genetic mother (the more traditional form of surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. 

Regulations in India

Since there was a lack of appropriate regulatory measures, the surrogacy business, or the baby-making business- as it is commonly referred to, was thriving in India prior to the introduction of the Act. Hospitals had made it into a booming business, worth $2.3Billion/annum. 

The Surrogacy Bill

In 2016, The Surrogacy Bill (herein forth referred to as ‘The Act’) was introduced in India and was passed 2 years later, on 18th December 2018. The landmark bill aimed to prohibit the increase of commercial surrogacy in India, a growing trend then. By such regulation, the legislation aimed to work towards an altruistic goal of providing children to only those couples who could not bear children. 

Conditions 

The Surrogacy Act requires the couple seeking surrogacy to be close relatives of the person who they wanted the surrogate mother to be. However, the bill does not define who these ‘close relatives’ shall be. The establishment of a National Surrogacy Board is provided for in the Act, so that the regulations may be governed in a systematic manner. This Board appoints and sustains authorities and gives them the power and competence to regulate and monitor surrogate practices.

The Act henceforth requires the couple seeking surrogacy and the mother offering it to both have eligibility certificates to do so, which shall be released by competent authorities. The biggest limitation of this Act is over foreigners and Non-Resident Indians (NRIs). They are no longer allowed to seek surrogacy in India. This was done after several cases of abandonment of children, and child trafficking cases came to light. This lacuna has been the reason for many debates, resting on the question of whether the limitation placed was a well thought one.

However, same-sex couples do not come under the purview of this Act and hence, dampens the idea of equal rights to the LGBTQ+ community. NCP leader Supriya Sule said it was a good bill but not modern enough. The same goes for people in relationships different from traditionally monogamous married ones. This means that not just homosexuals, even single parents and live-in couples have been left out from the ambit of this Act. They can not seek surrogate pregnancy in India. The couple seeking surrogacy must have been married for at least five years and mandatorily possess a competent registered doctor’s certificate, confirming their infertility.

Another limitation is over couples that already have children. Childbearing couples are not allowed to seek surrogacy in India. However, such couples can adopt children as per existing laws. 

Further conditions are regarding the surrogate mother, viz:

  • The surrogate mother should be married.
  • She must have had a child prior to the surrogacy offer.
  • She is also required to be between 25 to 35 years of age. 
  • The surrogate mother shall be allowed to offer her services just once. 
  • The Act also forbids any exchange of monetary nature between the surrogate mother and the seeking couple. 

This Act has often been seen and criticized to be a prohibition, more than a regulation.

So in 2020, India’s cabinet approved the Assisted Reproductive Technology Regulation Bill removing the prior law that limited the service to merely Indian couples who have been married for at least five years. The law also required the infertility of either of the spouses. Earlier the commissioning couple could only approach a female ‘close relative’. The biggest move in this bill is that now, widows and divorcees may opt for surrogacy too.

Rights of the Surrogate Mother

A recent government-funded study of 100 surrogate mothers in Delhi and Mumbai found there was “no fixed rule” related to compensation and no insurance for post-delivery healthcare. It cited cases where surrogates were implanted with embryos several times to raise the chances of success. Despite the hot criticism, the Act has been welcomed by quite many organizations like Stop Surrogacy Now, who wants to reduce India’s status as a Rent-a-Womb nation. The legislation through the Surrogacy Act also penalizes the abandonment of the surrogate child, as it was a common occurrence in the past. The Indian laws treat cases related to surrogacy on a case-to-case basis. On occasions, the law recognizes the woman who gives birth as the mother of a child. However, on other occasions, it recognizes the commissioning couple as the legal parents of a child born to a surrogate. In general, commercial gestational surrogates are almost entirely conceptualized as ‘vessels’. We identify several instances of child abandonment and discuss their implications with regard to the moral conceptualization of commercial gestational surrogates. 

Some commissioning parents have, however, effectively abandoned the children they commissioned and in such cases, commercial surrogates may find themselves facing unexpected maternal responsibility for children they had fully intended to give up. These are known as surrogate orphans. The surrogate orphans were an unfortunate by-product of some of the surrogacies, as was seen in the case of Japanese Couple, The Yamadas. The case is mentioned below.

Landmark Judgments

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K.Kalaiselvi vs Chennai Port Trust (2013)

In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them”, the Apex Court contended in the case of K.Kalaiselvi vs Chennai Port Trust (2013).

Surrogacy may be of four types, viz:

  • Traditional Surrogacy- It is also known as the “Straight Method”. This method requires the surrogate mother to get pregnant through natural means. However, at the birth of the child, she is required to renounce all rights over the child and hand it over to the couple seeking surrogacy, who shall rear it as their own. There are many methods of fertilization in this method, namely, home artificial insemination using frozen sperm or Intrauterine Insemination or IntraCervical Insemination.
  • Gestational Surrogacy- It is also known as the “Host method”. In this method, the surrogate mother is not the biological mother of the child. She is merely the gestational carrier of the child. The child is conceived through egg donation. 
  • Altruistic Surrogacy- This is the kind of surrogacy the current Indian laws expect. By this method, the surrogacy seeking couple merely takes care of the medical expenses and other pregnancy-related expenses of the surrogate mother. However, no money for the gestation and rewards are provided for the renouncement of the rights over the child.
  • Commercial Surrogacy- It is a form of surrogacy which invites the surrogacy seeking couple to pay off the surrogate mother for her gestational services. Usually, financially affluent couples resort to this method. Even though the method is strictly forbidden in India, Commercial Surrogacy is legally allowed in quite a few countries. Although this may prove to be a good source of income for low-income women, these countries are referred to as ‘Baby Farms’- which is quite an emotionally offensive term in nature.

Baby Manji Yamada vs Union Of India & Anr(2008)

Baby Manji Yamada vs Union Of India & Anr(2008) was filed under Article 32 and raised some pertinent questions. The case was filed by the grandmother of the surrogate baby, Manji. The father of the baby and his wife sought surrogacy in India and flew back to Japan after they succeeded. However, within nine months of this event, the couple separated and the wife did not want the baby, which wasn’t biologically hers. The British-colonial laws of India did not permit a single father to seek surrogacy in India and thus he could not take her back, making her the first surrogate orphan of India. Eventually, the Apex Court had to step in and grant the custody of the baby to the grandmother, who then took her back to Japan with her. However, the case raised some pertinent questions about the abandonment of surrogate children and the need for its regulation. It also brought to light the massive money-making business that the rent-a-womb capital of the world had under its wings.

 Jan Balaz v. Anand Municipality (2009)

In the case of Jan Balaz v. Anand Municipality (2009), the question of the nationality of a surrogate child was brought under question. The child was born to the surrogate mother of Indian nationality. However, the father of the child, seeking rights over the child, was a German national. After the child was born, Germany refused to give nationality to the child. The entire question was more spun because there were no precedents concerning the nationality of a surrogate child prior to the case. The case gained exponential momentum as it progressed. In the instant case, the identity of the two babies has already been established, Since they were born to an Indian national, and hence citizens of India within the meaning of Section 3(1)(c)(ii) of the Citizenship Act. The babies were allowed to come home as long as their parents went through with a required adoption. They had to complete the inter-country adoption process supervised by the Central Adoption Resources Agency.

P.Geetha vs The Kerala Livestock Development(2014)

In the case of P.Geetha vs The Kerala Livestock Development(2014) the Apex Court contended that since the biological mother of a surrogate child does not go through the gestational period, she is not entitled to maternity leave, along with the maternity benefits.

Conclusion

The newly welcomed Surrogacy Law in India has been a landmark law for other Asian countries, who have implemented surrogacy bans as well. One of these countries is Thailand. The unethical exploitation of poor women and their exploitative living conditions were major factors for the formation of this law. It’s hard to speculate about where the Indian surrogacy laws will go from here. If the recently passed bill is any indication, it seems like surrogacy in India won’t be possible any time soon for international intended parents. However, unethical practices and illegal activities still loom large as surrogacy is a largely ungoverned industry in India.

Many of the unfortunate children left behind are not even found- despite the best efforts. Comparatively, The United States of America is one of the best options available to complete a surrogacy in a safe, well-regulated way. It’s not unreasonable to predict that surrogacy will continue in India, even if it’s illegal, putting more intended parents and surrogates at risk than before. In this way, the surrogacy laws in India likely won’t succeed in their goal, and the controversies surrounding Indian surrogacy may not dissipate as quickly as planned. It is unimportant whether the leash follows the dog or vice versa, but the control of the dog is mandatory. So is the case with surrogacy and the laws governing it. We conclude that if gestational surrogates are to remain conceptualized as mere vessels, they should not be expected to assume responsibility for children abandoned by commissioning parents, not even the limited responsibility of giving them up for adoption or surrendering them to the state. 


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