This article on ‘Surrogacy Laws in India‘ has been written by Nishant Vimal, a 3rd-year student of Symbiosis Law School, Hyderabad. The author in this article discusses the surrogacy laws and the various sanction regarding the law imposed by the Parliament.

Introduction

Parenthood is a wish that is made by every parent couple and sometimes due to some unforeseen circumstances, this is not fulfilled. Reasons like any health problem affecting the uterus, male infertility, or etc. There is always an alternative available for these parents, which is surrogacy. Surrogacy is an agreement by which a surrogate mother with her consent carries the unborn child of the intending parents and then after the birth of the child, gives the custody of the child to the intending parents as decided in the agreement. This is a method by which any parent can have their wishes of a child come true.  

Types of Surrogacy

There are four types of surrogacy.

  1. Traditional Surrogacy: This method is done through artificial insemination or natural method of reproduction and male’s sperm is placed in the female’s womb. In this method, the surrogate mother is the biological mother as it was her egg that was fertilized.
  2. Gestational Surrogacy: This method is also called in vitro fertilization (IVF). In this method, the fertilization takes place outside the womb and preferably in a laboratory.
  3. Commercial Surrogacy: In this method, the surrogate mother is paid compensation to keep the unborn child in her womb or 9 months. The compensation is for all the services she has provided and the pain she has suffered in the past 9 months which is not just a reimbursement of medical expenses incurred.
  4. Altruistic Surrogacy: This method is similar to commercial surrogacy, here also it involves the surrogate mother to be paid but only for her medical expenses and generally in this method, the surrogate mother is a relative of the intending parents or is amongst the known of the intending parents.

The provision in Surrogacy Laws

Surrogacy has been banned in a lot of countries like Germany, France, Italy, Spain, Portugal, Bulgaria and etc. Common Law has faced a lot of issues regarding surrogacy like the determination of the right natural biological mother, whether it is the intending mother or the surrogate mother and in the case of Johnson v. Calvert (1), the Supreme Court of California held that the surrogate mother will be the natural mother. One of the most eye-catching judgments was pronounced in an unnamed case popularly known as the case of Mr & Mrs W, where the surrogate mother refused to give up the custody of the newborn and the court answered in the affirmative for the surrogate mother and also ordered for the intending parents to pay expenses for assistance in maintaining the child.

History in India

Surrogacy has never been provided by the Indian Legal System. Even in 2019, there is no such law that existing for Surrogacy apart from a Bill that is pending in the legislation because of many legal issues. Although, there have been many instances where surrogacy was allowed in India by the Judiciary. In the leading case of Baby Manji Yamada v. Union of India (2), where a baby was born through surrogacy to a Japanese couple. The husband had to return to Japan as his visa was cancelled followed by divorce between the couple. Although the grandmother of the baby was given the custody after the mother refused to accept it, but the newborn was unable to leave India for 3 months after the birth because she had neither Indian nor Japanese citizenship. Supreme Court of India later allowed the grandmother to leave with the baby.

In Jan Balaz v Union of India (3), the Gujarat High Court confronted a question of the citizenship of two twin babies born through surrogacy to German parents. The court opined that primary consideration should be given to the rights of two newborn, innocent babies, and after them to the rights of the biological parents, surrogate mother, or etc. Any relationship, which may be emotional or legal in nature, with the surrogate mother is to be given due consideration. The issue here was that the German parents wished to take the twins back to Germany but surrogacy had already been abolished in Germany and the baby could not be given an Indian Citizenship because dual citizenship is not offered in India. The court, however, allowed the parents to go back to Germany ensuring that the children will be sent to Germany where the parents can adopt them as per the law prevailing in Germany.

Later it came as a basic belief that any surrogacy agreement will be covered by contract laws in the absence of a specific law, which in India is the Indian Contract Act, 1872. But there were many arguments for and against it as there was no clarity on the aspect of consideration and a valid object on which the contract was performed. This faced a lot of criticism as it was against public policy to state the child as an object for the contract and it was a doubt that will the compensation given in commercial surrogacy will be called as consideration or not.

The discussion about governing the surrogacy agreements under contracts laws came into the notice of judiciary and there are various common law judgments like the case of Re TT, where it was held that surrogacy agreements cannot be considered as surrogate contracts and reliance was placed on the principle that “All contracts are agreements but not all agreements are contracts”. Though there was a conflict of views in the case Re Paternity of FTR (4), where the Supreme Court of Wisconsin held that public policy is not hindered and even the compensation can be called as consideration and also opined that the agreement can be enforced if it is for the welfare of the child.

And surrogacy has been performed in India and the examples have been seen by the public. Karan Johar, a Bollywood producer-director, opted for surrogacy to have twins and became a single parent in 2017 through In-vitro fertilisation (IVF). Similarly Tusshar Kapoor, a Bollywood actor, also became a single parent in 2016, through in-vitro fertilisation. Although laws have yet not been formulated, surrogacy is being opted by people willing to have a child.

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Surrogacy Regulation Bill, 2016 and its Salient Features

Recently, the Surrogacy Regulation Bill, 2016 was introduced by JP Nadda, Minister of Health and Family Welfare in the Lok Sabha, which proposes to ban commercial surrogacy in India. It was formulated for the regulation of surrogacy in India as it provided for all the qualifications of the parties competent to enter a surrogacy agreement and the conditions and formalities required to fulfil for surrogacy to be carried out in India. After the enactment of this bill, instances like Karan Johar and Tusshar Kapoor cannot be seen again as this bill proposes to prohibit single parents to become parents through surrogacy.  

The Salient Features of this bill are as follows -:

  1. Proposal for making commercial surrogacy illegal,
  2. Allows altruistic surrogacy only,
  3. Requires intended parents to be married for five years,
  4. The Intending parents need to have a certificate of their infertility,
  5. Women can be a surrogate mother only once in her lifetime,
  6. The surrogate mother should be a close relative of the intended parents,  
  7. The surrogate mother should be married and have a biological child &
  8. Bans single parents, homosexuals and live-in couples from surrogacy

Critical Analysis of the Surrogacy Regulation Bill, 2016

The 2016 Bill for Surrogacy does not deem to be fit for implementation as it violates the golden triangle of Fundamental Rights prescribed in the Indian Constitution and furthermore many rights are hindered which have been listed. These are the issues because of which this bill has yet to be formulated into a law.

Article 14

The qualifications of a surrogate mother include the requirement of the female to be married in order to become a surrogate mother, which clearly violates the rule of equality which is given under Article 14 of the Indian Constitution, as an unmarried female is not given equal rights as that of a married female.

Any couple intending to have a child through surrogacy have a requirement imposed on them that they have to marry for a period of at least 5 years, and any couple who fall short of this requirement will not have the same rights as that of a couple married for a period of 5 years.

Article 19

Article 19 (1) (d) states the right to carry out any desired occupation and if any female wants to be a surrogate mother and wants to opt surrogacy as an occupation will have her rights hindered as this Bill bans commercial surrogacy.  

Article 21

Certificate of infertility is a clear violation of the Right to privacy guaranteed under Article 21 of the Indian Constitution. It is not clear why the bill requires the parents to show details or information about something which is private.

Right to earn a livelihood is imbibed under Right to live life with dignity, and any female who is not able to earn a livelihood because of the banning of commercial surrogacy is violating Article 21 of the Indian Constitution.

Other Rights

Apart from the Constitution, the Bill of 2016 still violates basic principles and rights and is baseless in many aspects.

  1. All these scientific developments are done for the benefit of the general public and enjoyment of these technologies and the scientific progress is a natural right prescribed under Article 27 of Universal Declaration of Human Rights and Article 15 of the International Covenant on Economic, Social and Cultural Rights, etc. Surrogacy is one of these new advancements of the modern day in medical science and technology and hence it is the right of every individual to enjoy the benefits from these.
  2. The Bill does not define the term ‘close relative’. There is a lot of confusion as to who will fit under the category of a ‘close relative’ and this might even give rise to possible family conflicts.
  3. The waiting period of five years before any couple can intend to have a child through surrogacy comes after the couple’s inability to achieve pregnancy after a year or two of attempting to conceive a child through natural methods. Hence, there is a lack of basis as to why the intended couple needs to wait for a period of five years for opting for surrogacy.
  4. Surrogacy can be misused for the parents who want a male child and therefore there can be sex-selective surrogacy which is harmful to the society considering the already alarming sex ratio in India.
  5. The 2016 Bill is silent about the possible breach of terms and conditions of surrogacy by the surrogate or indented couple during the execution of surrogacy agreement.
  6. The Bill lays down that the intending parents and the surrogate mother are required to have a certificate of fitness for surrogacy. There is no criterion mentioned as to how any person is capable or fit for surrogacy.

Conclusion

Therefore it has always been a controversial topic to consider and the formulation of the Surrogacy Regulation Bill of 2016 has not improved the status of this medical breakthrough. There are still many criticisms faced by this bill as mentioned above and it remains to be seen what remedy is made available to the general public on the question of surrogacy. If the Bill is formulated into law, there are dangers to the society as it can increase a possible black market where females can be exploited and forced to join these clinics to be a surrogate mother. This will just increase the risks of surrogacy and the purpose of the Surrogacy Regulation Bill will not be met. Therefore it can be concluded that it does not seem like surrogacy will be legalised or criminalised any time soon as it involves many legal and moral questions that are still to be answered.

Reference

  1. 5 Cal. 4th 84 (Cal. 1993).
  2. [2008] INSC 1656.
  3. AIR 2010 Guj 21.
  4. 447 S.W.3d 807 (Tenn. 2014).  

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