This article is written by Salonee Patil, from ILS Law College, Pune, and Prince Gahlawat, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from lawsikho.com.

Introduction

The world stands divided on the question of whether surrogacy is a legally and ethically sound practice. It has been brought to limelight with western world stars like Nicole Kidman, Sarah Jessica Parker but also Indian stars like Shah Rukh Khan and Karan Johar. Surrogacy agreements are not legalised in UK due to which the birth mother has a right to keep the child even though she has been paid for the process. Countries like Canada and Germany prohibit commercial surrogacy while both kinds prohibited in France. As of now, there is no international convention regarding surrogacy and it is a subject debated upon in recent times.

India also is amidst this discussion and is trying to weigh the pros and cons of the same. There is no law regulating surrogacy in the country however surrogacy is not illegal. Surrogacy was first recognised by the Supreme Court in the case of Baby Manji. The IMCR in 2002 issued guidelines trying to streamline the process of surrogacy in India.

This led to a major inflow of surrogacy in India. It is a well-known hub for people all over the world wanting to have a child but can’t bear one.

Legal status of Surrogacy in India

Human Beings have a natural instinct for procreation. It is one of the life functions. Every individual wants to bear a child of their own. However, this remains only a dream if a one out of the couple is infertile, or if the woman can’t carry the baby or in case of homosexual couples or people who want to lead a single life. Other reasons may include the age factor, uterine problems, failure of IVF, heart disease, etc.

Adoption is one of the options available to them however the major drawback in case of adoption is the fact that the adopted child does not bear your genetic material. This is where surrogacy steps in and rules out the shortcomings of the process of adoption for those who want ‘a part of themselves’ in their child.

Classification of surrogacy

With Surrogacy, it is possible to combine the sperm of the father with the ovum of the surrogate mother. Thus, the birth mother is also the genetic mother. This is classified as Traditional Surrogacy. It is also possible, with the advent of IVF (in-vitro fertilisation) to form a zygote and then transfer it to the surrogate mothers’ womb enabling the formation of a complete genetic descendant. This is called Gestational Surrogacy and is a preferred form of surrogacy.

Understanding Surrogacy

Surrogacy is the practice of a woman carrying child developed through her own ovum or a formed zygote till birth and then transfers all rights over the baby to the contractual parents.

Surrogacy was recognised by the Indian Supreme Court in Baby Manji case[1] and defined it as:

“..a method of reproduction, whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracting party.”

In 2002, the Indian Council of Medical Research[2] laid out guidelines for surrogacy, which made the practice legal, but did not give it legislative backing. This led to a booming surrogacy industry which had lax laws and no enforcement.

Depending upon the rationale or motive behind ‘carrying’ a child for someone, surrogacy can be further classified into two types-

1. Altruistic Surrogacy– A surrogate is given no financial gain for carrying a child. Only realistic out of pocket expenses are covered by the intended parents. E.g. medical costs, travel, time off work, etc. Altruistic surrogacy can use either a traditional or gestational surrogate.
2. Commercial Surrogacy– A surrogate is paid for carrying the child. Many couples are entering into overseas commercial surrogacy agreements to create a family.

Aside from bearing children through natural sexual reproduction and adoption, the intending individual or parent can avail of Surrogacy, which is an assisted reproductive technique whereby intending parents/parent choose, for various reasons, to bear the child through a Surrogate mother. The willing surrogate mother is then implanted with the fertilized egg; fertilized in-vitro using either intending parent’s gametes or that of a donor, or in-vivo fertilization through artificial insemination (in case of traditional surrogacy).

Etymologically speaking, the word ‘Surrogacy’ originates from the Latin word ‘Surrogatus’ a past participle of ‘Surrogare’ meaning “to elect as a substitute” the substitute here being the surrogate mother carrying the child for an intending parent or parents.

Based on the genetic/biological relation of the surrogate mother with the child she carries, surrogacy has been classified into traditional and gestational surrogacy. Traditional surrogacy is when the surrogate mother is genetically related to the child she carries (uses her own eggs to create the embryo), the male gametes used to fertilize the egg in this case could be that of a donor or the intending father, artificially inseminated in the surrogate mother. The genetically related mother in this case intends to forgo her parenthood/maternal rights in favor of another intending couple or individual, making traditional surrogacy somewhat similar to adoption. Traditional surrogacy also finds mention in various mythological folklore.

In case of Gestational surrogacy; the surrogate mother is a mere carrier of the baby, the embryo she carries is fertilized in-vitro, using the gametes of intending parents/parent or donor/donors, there is no genetic relation of the child with that of the surrogate mother.

Legal, moral and ethical dimensions; rights of parties involved

Assisted reproductive techniques like; In-vitro fertilization- embryo transfer (IVF-ET), Intra-cytoplasmic Sperm Injection (ICSI), Cryopreservation of gametes or embryos, Gamete intra-fallopian transfer (GIFT), Zygote intra-fallopian transfer (ZFT), Frozen embryo transfer (FET), have come to the aid of millions of couples/individuals unable or unwilling to conceive naturally.

According to the Indian society of assisted reproduction, infertility currently affects 10-14% of Indian population, with higher rates in urban areas. WHO defines infertility as “a disease of the reproductive system defined by the failure to achieve clinical pregnancy after 12 months or more of regular unprotected sexual-intercourse”.

WHO further regards infertility as disability generating (an impairment of function) and thus access to health care falls under the ‘convention on the rights of persons with disability’. Infertility among women has been ranked as the 5^th highest global disability (among populations under the age of 60)^[i].

The assisted reproductive industry has boomed considerably ever since first ‘test-tube babies’ were conceived in late 70s and 80s, with global market estimation standing at 26 billion US dollars (2019)^[ii].

 India with its lower costs and quality health care has nurtured a thriving medical tourism industry; over the years, it has come to be regarded as the surrogacy capital of the world, owing to the largely unregulated ART sector.

Extent of Legal rights involved

Surrogacy and the accompanying biotechnology evolution have thrown to light some very confounding issues of rights of parties involved, medical ethics and morality; for instance a woman’s right to have agency over her body and to make informed choices around her reproductive health, to the risk of her being exploited – as a surrogate – for larger economic benefits of others, the basic right of parenthood extended to an individual or a couple and not to forget the rights of the child to be holistically nurtured and cared for, the issues of guardianship, citizenship (in case of foreign intending parents), subsequent abandonment or abuse of the child, pre-natal sex determination, are few of the core issues involved.

Human Germline gene editing; CRISPER

One of the less understood and talked about issues regarding surrogacy is that of human germline gene editing (GGE). In 2012 a revolutionary gateway technology having broad applications called CRISPER Cas-9 (Clustered Regularly Interspaced Short Palindromic Repeats) – Cas9 being the bacterial protein used as ‘scissors’ to edit DNA – was discovered. With the technology being refined and perfected over the years, it became much cheaper to edit genes; and for the first time in 2018 CRISPER’s potential to make inheritable changes to human embryos (Germline genome editing) was exploited when a Chinese scientist named Dr. He Jiankui announced at the Second International Summit on Human Genome Editing at the University of Hong Kong, the creation of worlds’ first genome-edited babies, Lulu and Nana. The genetically edited embryos – from which the kids were made – were made resistant to HIV. It was during in-vitro fertilization when the sperms, taken from HIV positive father, were cleansed using CRISPER – Cas9 technology, specifically targeting the gene CCR5 that codes for a protein which HIV uses to enter cells. Thereby giving hope to HIV positive couples to have their biological children without the risk of passing on the disease.  

It is likely that older couples looking to avail surrogacy services are more susceptible to passing on any genetic aberrations to their child; chances of alteration in chromosomal numbers, aneuploidy, increase in women older than 35 years, which further increases the risk of passing on any genetic birth defect to the child. Therefore, pre-implantation genetic diagnosis of the embryo and further curing any defects using gene editing technologies could bring about desirable positive changes as far as child abandonment, due to birth defects, by intending the couple is concerned.  

A more controversial and uncomfortable dimension of human germline genome editing is the ability to enhance physical or intellectual attributes of the intended child. This ability has the potential of creating a huge class divide by creating a whole generation of genetically superior human beings. The repercussions as far as access to equal opportunity, education, social and economic rights are concerned could be huge and far reaching, especially in an already economically unequal society. It is for this reason that GGE in humans has been highly controversial and is either outlawed or heavily regulated in most jurisdictions globally. 

Jurisprudence, Legal evolution and regulation

As is usually the case, the technology grows much faster than laws, regulations and guidelines purported to govern its use. Now, in the context of surrogacy and other accompanying technologies let’s examine evolution of legal jurisprudence and other attempts at enacting laws, guidelines and other regulations in India.

According to the parliamentary standing committee report on Surrogacy regulation Bill (2016) presented to Rajya Sabha on 10^th August 2017; surrogacy is a 2-billion-dollar industry in India.^[iii]

In 2005, National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, by the Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences were approved. In an effort to curb the misuse and commercial exploitation of fast developing ART techniques, the guidelines for the first time recommended a complete ban on sale and transfer of embryos and gametes outside the country, although, bona fide researchers within the country could avail such transfers without any commercial transaction or intent on part of the donor and receiver. The guidelines had further mandated approval by an accrediting authority for in-vitro embryo research, to be only conducted in ‘public interest’ although such public interest was nowhere defined.

It wasn’t until 2015 that the ministry of commerce came out with a notification whereby it completely prohibited import of human embryos, except for research purposes based on the guidelines of department of health research^[iv].

Curiously enough, a very recent notification issued on 12^th June 2020 by Ministry of commerce has allowed exports of human embryos, gametes and gonad tissues, subject to a no-objection certificate by ICMR (Indian council of medical research)^[v], perhaps because of rising demand in research fields owing to coronavirus pandemic.

ICMR issued National guidelines for Gene therapy and product development (November 2019)^[vi] has prohibited Germline Gene editing (GGE) for ethical and social considerations, albeit without the backing of any concrete legislation and commensurate, consequential penalties; the ambiguity regarding enforceability of these provisions provide considerable wiggle room for potential exploits and far reaching repercussions for fundamental, constitutional and human rights. The recommendation for setting up of GTAEC (Gene therapy advisory and evaluation committee) for keeping oversight and issuing approvals, suggestions, should be further backed with legislative intent.  

The assisted reproductive technologies bill (ART, Bill) which has seen many revisions ever since its first draft was released in 2008, inter-alia, has recommended that Preimplantation genetic diagnosis (PIGD) be made compulsory before embryo is implanted in a surrogate mother or otherwise^[vii]. As observed earlier (Part – 2.2 para 2), certain segments of population could be more susceptible to passing on genetic illnesses. This suggestion in the bill seems like a much-needed step in the right direction; but then again, if and when there is a blanket ban on GGE is in place, how feasible will it be for intending couple to exercise their right to parenthood – in case PIGD of the embryo comes up with a prognosis of some genetically inheritable disease? Therefore, setting up regulatory, oversight and approval mechanisms through creating a legislatively backed committee like GTAEC instead of issuing a blanket ban of promising technology, which has a potential of misuse, could be a more harmonious way to strike the right balance. Union cabinet is said to have cleared the ART bill^[viii] though the draft hasn’t been released yet.

The Hon’ble Supreme court of India in Baby Manji Yamada vs Union of India & Anr, on 29 September 2008 held commercial surrogacy to be a legal practice under laws and regulations existing at that point in time. In the concerned case, the surrogate baby of a Japanese couple was left stranded in India, the intending parents having split before the child’s birth. Although the father did claim custody, the Japanese government didn’t allow for the baby’s travel. The Supreme court in its observation referred to ‘The commissions for protection of child rights’ act 2005’ and asked petitioners to ventilate their grievances, regarding the child’s rights, on that forum. Eventually, the baby was able to travel after Indian government granted a travel certificate, based on which a one-year Japanese visa was issued on humanitarian grounds.

This case raised some serious issues about citizenship rights of the surrogate child and genuine fears of such babies being rendered stateless.

Again, in Jan Balaz v. Anand Municipality and 6 others, 2009^[ix] Gujarat High court was faced with a legally unprecedented situation, when a German couple working in the UK commissioned twins through a surrogacy contract. Since the intending mother in this case had a fertility issue, the eggs used to fertilize the embryo were taken from an anonymous donor, who was an Indian citizen, which was then implanted in the gestational mother, also an Indian. Both women were bound by the agreement between parties to give up parental rights in favor of the commissioning German parents.

As the German law didn’t recognize surrogacy, the surrogate twins will not be recognized as German citizens, despite having a biological German father. The couple working in the UK wanted to seek a British visa for the children, for which they petitioned the high court seeking the granting of Indian passport to the children. The passport authorities on the other hand expressed their inability to grant the Indian passport as the same can be granted to Indian citizens only, and according to section 3 of Indian citizenship act, 1955, since legally both their parents are foreigners, the babies would not be eligible for Indian citizenship.

The court in order to avoid the babies being rendered stateless, concluded that the presumption drawn from  section 112 evidence act can’t be used to conclude that a surrogate child is the legitimate child of the commissioning parents,  as the babies are born to an Indian surrogate mother they would be entitled to be Indian citizen – under section -3 Indian citizenship act 1955 – and the authorities were directed to issue passports accordingly.

These complex issues around the status of a surrogate child and genuine concerns around the citizenship rights are perhaps among predominant reasons why the law commission in it’s 228^th report^[x] presented in 2009, took upon the subject suo-moto and recommended a complete ban on commercial surrogacy, only allowing altruistic surrogacy. It further recommended measures to safeguard the rights of surrogate mother by securing her full informed consent, right to abortion or medical termination of surrogate pregnancy, insurance cover, life insurance cover, right to privacy and other safeguards around her health; while also recommending financial support for surrogate child, legitimacy, parentage right to registration of surrogate child’s birth certificate.

The Hon’ble Supreme court, in early 2015, on being moved through a public interest litigation filed by advocate Miss Jayshree Wad, challenging commercial surrogacy, had asked the central government to clarify its stance on commercial surrogacy^[xi]. Eventually, on being prodded from various directions the ministry of home affairs vide its letter issued on 3^rd November 2015, withdrew earlier letters granting permissions to foreigners for commissioning surrogacy in India, and thenceforth banned issuance of any visas to foreigners, PIOs, OCIs for commissioning surrogacy in India^[xii]. The Ministry of health and family welfare, on the very next day, validated MHA’s earlier notification and completely banned commercial surrogacy in India^[xiii]     

Thereafter, the government introduced Surrogacy regulation bill 2016 in the parliament which even though was passed in Lok-Sabha and was referred to department-related parliamentary standing committee on health and family welfare; the parliamentary committee presented its report in august 2017, but the bill eventually lapsed due to parliament being adjourned sine die.

Again in 2019, the Lok-Sabha passed the Surrogacy regulation bill, 2019 which was later referred to Rajya Sabha’s select committee. The committee presented its report in February 2020^[xiv]. The bill remains pending in Rajya Sabha. Now let’s examine proposed changes in the bill and suggestions of the committee.

Surrogacy regulation bill 2019 (henceforth – The bill), as passed by Lok-Sabha^[xv] in its preamble statement states as its objective; ‘to constitute National Surrogacy Board, State Surrogacy Boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy and for matters connected therewith or incidental thereto’

The bill besides provisioning for establishment of appropriate authorities and National, State surrogacy boards, provides for offences of;  (i) undertaking or advertising commercial surrogacy; (ii) exploiting the surrogate mother; (iii) abandoning, exploiting or disowning a surrogate child; and (iv) selling or importing human embryo or gametes for surrogacy.  The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees. 

Commercial & Altruistic Surrogacy; eligibility of Intending couples and surrogate mother

The bill proposes to ban commercial surrogacy and only allow altruistic surrogacy for married Indian couples with proven infertility, with no monetary compensation entitlements for the surrogate mother except medical expenses and an insurance cover for 16 months, covering postpartum delivery complications.

Commercial surrogacy is defined to include, besides commercialization of surrogacy services, its component services or procedures like sale of human embryo or gametes. Infertility on the other hand has been defined as the inability to conceive after 5 years of unprotected coitus or any other proven medical condition preventing conception.

The restrictive criterion further proposes; 1) that the surrogate mother be a close relative of the intending couple, 2) be married, between the ages of 25-35 years, having a child of her own 3) no woman is allowed to be a surrogate mother by providing her own gametes, 4) no woman can be a surrogate mother more than once in her lifetime, 5) surrogate mother shall have a medical and psychological fitness certificate for surrogacy, issued by a registered medical practitioner.

For the married couple made eligible for altruistic surrogacy; the certificate of essentiality and eligibility have been proposed to be made mandatory.

A certificate of essentiality will be issued upon fulfilment of the following conditions: (i) a certificate of proven infertility of one or both members of the intending couple from a District Medical Board; (ii) an order of parentage and custody of the surrogate child passed by a Magistrate’s court; and (iii) insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.

The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions: (i) the couple being Indian citizens and married for at least five years; (ii) between 23 to 50 years old (wife) and 26 to 55 years old (husband); (iii) they do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness; and (iv) other conditions that may be specified by regulations.

Some other relevant case laws and judicial opinions

Besides the landmark case-laws already discussed; high courts in different jurisdictions throughout India have primarily dealt with the maternity leave entitlements of commissioning mothers – upholding the same in almost every instance. In the case of Sunita v. M/O Law and Justice and Company, 2018^[xvi]; the Central administrative tribunal extended the maternity benefits to a personal assistant – commissioning mother – working in the ministry of law and justice. In the instance case the tribunal, inter-alia, relied heavily on Delhi high court’s judgement in Rama Pandey v. Union of India, 2015^[xvii]; wherein, the learned judge while extending maternity benefits to a Kendriya Vidyalaya teacher – the commissioning mother – and scrutinizing central civil services leave rules, inter-alia, held that;

1. A female employee, who is a commissioning mother, would be entitled to apply for maternity leave.
2. The competent authority would decide on the timing and period for such leave based on the material placed before it.
3. The scrutiny would be keener and detailed, when leave is sought by a female employee, who is the commissioning mother, at the prenatal stage. In case of denial of the same a reasoned order would have to be passed by the competent authority having due regard to the material placed before it.
4. In so far as leave concerning postnatal period, the competent authority would ordinarily grant such leave to the commissioning mother, except where there are substantial reasons for denial of such leave. Again, such denial order will have to be a reasoned order having due regard to the material placed before it.

In Rama Pandey case the court had alluded to the Madras High court judgement in K.Kalaiselvi v. Chennai Port Trust, 2013^[xviii]; wherein the court drew parallels between an adoptive mother and a commissioning mother and further admitted pleas that India being a signatory to the convention on the rights of child by UN wherein, article 6 of the said convention mandates state parties to recognize that every child has an inherent right to life and further ensure to the maximum extent possible, the survival and development of the child. The court had thus granted maternity leave entitlement benefits to a female assistant superintendent – commissioning mother – working with the Chennai Port Trust.

The high court of Chhattisgarh in Smt. Sadhna Aggarwal v.  State of Chhattisgarh, 2017^[xix]; while granting maternity leave benefits to a government college lecturer – the commissioning mother – quoted heavily from fundamental rights enshrined under Article 14 “State shall not deny to any person, equality before the law or equal protection of the laws’; Article 15 (3) – against discrimination – “nothing in this article shall prevent the state from making any special provision for women and children”

Also emphasizing on the state’s duty under directive principles of state policy; Article 39, 42, 43, whereby, inter-alia, the state is enjoined with the responsibility to ensure the health and strength of workers, men, women and children of tender age, just and human conditions of maternity relief.  

Global perspectives

In most countries throughout the world the legal regulation of the practice of surrogacy varies considerably with a complete ban of both commercial and altruistic surrogacy in some countries like; Finland, France, Iceland, Germany, Sweden. On the other hand, in countries like Russia, Iran, Ukraine, Nigeria, Poland, parts of eastern Europe, Africa, Latin America, surrogacy either continues to be legal in all its forms or unregulated.

These variances and uncertainties across jurisdictions have encouraged what has been colloquially called as fertility tourism in countries with lax regulation. Besides India, other economically poorer countries have been on the receiving end of such fertility tourists; while in some ways it may benefit the local economy, the grave questions of human rights as already alluded to and discussed herein perhaps increase the costs much more than the benefits. One such instance that forced a change in law happened in Thailand – Baby Gammy incident – an Australian intending couple commissioned twins through gestational surrogacy in Thailand, one of the babies suffering from down syndrome was allegedly abandoned and left behind by the couple. In response to the widespread condemnation of this incident, Thai authorities banned commercial surrogacy for foreigners, even though citizens of the country remain free to avail any such facility.

Countries which have banned commercial surrogacy but allow altruistic surrogacy include; Vietnam, where only married couples with proven infertility and a willing relative – to act as a surrogate mother – can commission children through surrogacy; Australia, except Northern territory; Brazil, Canada, New Zealand, Netherlands, Belgium. In most countries allowing altruistic surrogacy, only married straight couples are considered eligible, although regulations in New Zealand and in some American states are considered more friendly for LGBT couples seeking to commission children through surrogacy. Recently, the Israeli Supreme court has held the restriction on LGBT couples to enter into surrogacy arrangements as discriminatory.

Of the countries which do allow surrogacy, Greek and South African laws/regulations stand out; with the Greek laws providing protection for intending parents by setting qualifications and mandating a prior approval of their application from a Judge. This ensures parenthood rights to the commissioning parents right from inception. A similar practice is also mandated in South Africa. It must also be noted here that the countries which bar surrogacy in any form whatsoever, have a legal presumption that the birth mother is the real mother of the child even if the child is not genetically related, in such cases there have been instances where intending couple commissioning their genetically related babies from foreign jurisdictions have to seek parenthood rights of their own children through adoption laws.

Legal Arguments in favour and against surrogacy

Arguments in favour of surrogacy

THE CHOICE AND CONSENT ARGUMENT

While there is no international charter recognising Right to Children, it is basic human desire and everyone should have the choice to have children of their own genetic material. The argument that adoption can be resorted to is baseless as it should be a matter of choice of the individual.

The surrogate is fully aware of what she is contracting to do and only as a result of consent does she choose to accept the offer made to her. It can be safely assumed that she knows the consequences of her act and goes ahead with her decision. As it is with her consent, there is no concealment of information and she makes a well-informed decision.

THE REPRODUCTIVE SELF-DETERMINATION ARGUMENT

“Reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other relevant United Nations consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes the right of all to make decisions concerning reproduction free of discrimination, coercion and violence as expressed in human rights documents. In the exercise of this right, they should take into account the needs of their living and future children and their responsibilities towards the community.”[9]

This helps one understand that everyone has a basic right to decide the number, spacing and timing of their children and have means to do so. Surrogacy is one such method available to those who seek to have children of their genetic composition. It should not be denied to them especially when they do so without unjustly depriving the surrogate of getting something in return as a matter of her choice.

BENEFIT OF EVERYONE

Both the contracting parties have a lot at stake and they gain a lot out of the contract as stakeholders. While one party is monetarily enriched with gifts, respect, gratefulness and money, the other party has the joy of having their own child. As the surrogates in India are poor, they can use the money to help pay off their debts or fund education for their children. It is huge money, the kind of money most of the surrogate mothers could not consider earning given to the lack of skill or lack of access of opportunity available to them. It makes these surrogate mothers independent and self-sufficient and self-efficient.

A study conducted in July 2012, backed by the UN, put the surrogacy business at more than $400 million with more than 3000 fertility clinics all over the country. India’s leading newspaper regard Surrogacy as a multi-billion industry and also facilitates as a great source of flow of foreign exchange currency in the market.

Arguments against surrogacy

THE HEALTH ARGUMENT

FOR THE BABY-

• ADAPTIVE NATURE: This argument primarily works against traditional surrogacy. Since traditional surrogacy involves use of the surrogate mother’s ovum, the foetus is a combination of the surrogate and the father. The baby inherits the surrogates’ genes. It is no secret that each person’s genes are adaptive to the environment they are born in. Thus, when a couple from foreign land decides to undergo traditional surrogacy involving the mother’s ovum, the risk to the health of the baby increases as it is only partly equipped with the genes to survive in the nation in which he will be brought up. This leads to harms in the initial phase of life of the baby as he has to undergo major changes with respect to the climate, weather, temperature he is born in and the same in which he will be raised.
• PRE-MATURE BIRTH: IVF is a recognised mode of formation of zygote to be implanted in the surrogate mothers’ womb. But this method has a major flaw. Babies born through IVF are said to be born prematurely and thus suffer problems. Pre-mature babies contract illness and the chances of survival are also scarce in spite of advent of technology.

FOR THE SURROGATE MOTHER-

Surrogacy is seen as a way of earning money. It is practically classified as an industry. There are chances that women may resort to this method as a mode of earning their livelihood. This becomes problematic as they start contracting one baby after another. This is detrimental to the health of the surrogate mother.

Human body has limitation. Reproduction is a highly energy-consuming process and it takes a lot out of a woman. It is physically and emotionally challenging. The practice of bearing children repetitively make a woman susceptible to miscarriages. The body needs time to recover and the need of money may make women to overlook that. This may lead to complications in delivering the baby which poses threat not only to the baby but also to the mother.

HOW FREE IS FREE CONSENT?

One of the main arguments put forth by ones in support of surrogacy is that the surrogate mother consents to ‘renting her womb’ in order to give birth to a child for another. They argue that it is okay for a woman to accept this practice altruistically as well as commercially. This brings us to the question whether consent is really free in this case.

It is not entirely incorrect to say that the status quo of surrogacy in India indicates that it is a class- dominated practice. Class-dominating meaning it is the rich who resort to the ‘help’ of poor women to bear their child for them. The incentive for poor women to agree upon such a request to carry a baby for someone she has never seen, met or interacted with is dominated with material gains. She is showered with money and gifts and in return has to carry a baby which is not hers, bear the hormonal changes, nurture the baby for 9 months and then give it up. She does this because the money she will receive will help her educate her children, pay off debts or even have her own house. In this case, can consent really be said to be free? Who is to determine whether the husband or relatives of the woman have forced her into this practice? Since the money is for the benefit of her own family, it is quite unlikely that such a surrogate will own up for the actual reasons behind her decision.

Thus, whether the consent is really free is a mystery.

THE HARM ARGUMENT

“It is argued that the two suggested versions of the harm argument survive the current criticism against the standard harm argument. The first version argues that the child is harmed by being separated from the gestational mother. The second version directs attention to the fact that surrogacy involves great incentives to keep the gestational mother’s level of maternal-fetal attachment low, which tends to increase the risk of harm to the child. While neither of the two arguments is conclusive regarding the moral status of surrogacy, both constitute important considerations that are often ignored.”[10]

THE HUMAN RIGHT (RATHER WRONG) ARGUMENT

According to Jennifer Roback Morse[11],

Surrogacy is a medically monitored procedure which results in creation of a child. The argument that the author is trying to put forth here is the abuse of the right of choice. With respect to IVF, the parents can choose and modify characteristics of the zygote. For ensuring implantation, more than one embryo may be implanted in the uterine wall, this leads to ‘intended abortion’ of the rest. It may also be unsafe for the mother. Rest of the fusions done for this process are either frozen for experimentation or are sent to the bins.

As part of a study on infertility clinics in New Delhi, sociologist Tulsi Patel[12] from the Delhi School of Economics found poor awareness among women about the health complications and risks that repeated egg donations and pregnancies can cause. The study also found that in some cases, clinics would transfer more than the permissible number of three embryos into the uterus to better the chances of pregnancy.

Conclusion

Surrogacy, like any other practice has its pros and cons. When we evaluate the two, one realises that there is a very thin line separating the use from the abuse. It is highly necessary in the light of the shortcomings faced as seen in Indian cases like Baby Manji etc. there be a strict codification and regulation of surrogacy laws not only in India but all over the world. A common piece of international legislation is necessary as it is a cross-boundary practice.

While measures should be taken that Surrogacy does not become an unethical practice, it may not be completely absurd to strictly regulate commercial surrogacy ensuring its benefit to couples who are infertile or cannot bear children. It is an industry working beneficially for both parties and the state should recognise that.

References

^[i] https://www.who.int/reproductivehealth/topics/infertility/definitions/en/

^[ii] https://www.gminsights.com/industry-analysis/assisted-reproductive-technology-market

^[iii] https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/14/100/102_2018_6_15.pdf

^[iv] https://dgft.gov.in/sites/default/files/not2515_0.pdf

^[v] https://dgft.gov.in/sites/default/files/Noti%2011%20Eng_0.pdf

^[vi] https://main.icmr.nic.in/sites/default/files/guidelines/guidelines_GTP.pdf

^[vii] https://main.icmr.nic.in/sites/default/files/guidelines/ART%20REGULATION%20Draft%20Bill1.pdf

^[viii] https://www.pmindia.gov.in/en/news_updates/cabinet-approves-the-assisted-reproductive-technology-regulation-bill-2020/

^[ix] https://www.legalcrystal.com/case/747551/jan-balaz-vs-anand-municipality-6-ors

^[x] https://indiankanoon.org/doc/168220859/

^[xi] https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-asks-government-to-explain-stance-on-commercial-surrogacy/articleshow/46378518.cms

^[xii] https://www.mha.gov.in/PDF_Other/surrogacy03112015.pdf

^[xiii] https://dhr.gov.in/sites/default/files/latest%20Govt.%20instructions%20on%20ART%20Surrogacy%20Bill.pdf

^[xiv] https://www.prsindia.org/sites/default/files/bill_files/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf

^[xv] https://www.prsindia.org/sites/default/files/bill_files/Bill%20text%20as%20passed%20by%20LS-%20Surrogacy%20bill%2C%202019.pdf

^[xvi] https://indiankanoon.org/doc/87974764/

^[xvii] https://indiankanoon.org/doc/125365715/

^[xviii] https://indiankanoon.org/doc/28691523/

^[xix] https://indiankanoon.org/doc/129367316/

[1] Baby Manji Yamada vs Union Of India & Anr. [(2008) 13 SCC 518].

[2] IMCR guidelines on Surrogacy, 2002.

[3] Indian Contract Act, 1872.

[4] S. 23 of the Indian Contract Act, 1872.

[5] Article 21 of the Constitution of India, 1949.

[6] 2000 (1) ALD 199, 1999 (5) ALT 715.

[7]An Article by Grazyna Zajdow titled ‘surrogacy is prostitution’ can be found at  https://arena.org.au/surrogacy-is-to-prostitution-by-grazyna-zajdow/

[8] The Surrogacy (Regulation) Bill, 2016.

[9] According to the 1994 Cairo Programme of Action, International Conference on Population and Development.

[10] https://www.ncbi.nlm.nih.gov/pubmed/2466423

[11] 15 Reasons to oppose Surrogacy- http://www.christianpost.com/news/15-reasons-to-oppose-surrogacy-164740/

[12] http://news.trust.org/item/20170119050530-j6hgv