This article has been written by Nishant Vimal, from Symbiosis Law School, Hyderabad and Ishika Garg, from the University School of Law and Legal Studies, GGSIPU.
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
1) On the basis of genetic relationship, surrogacy is of 2 types:
a) Traditional Surrogacy- In traditional surrogacy, the surrogate mother is artificially inseminated either by the intending father or a sperm donor. The surrogate mother uses her own eggs and thus is the biological mother of the child. So, the child has a genetic relation with the surrogate mother and the intending father or the sperm donor. However, the surrogate mother has to give up her parental rights on the child and hand the child to the intending couple.
b) Gestational Surrogacy- In gestational surrogacy, the embryo is created through the process of In Vitro Fertilisation (IVF). For the process of IVF, the eggs and sperms of the intending couple or of a donor are used. After the embryo is formed, it is inserted in the uterus of the surrogate mother. The surrogate mother is not the biological mother in this case. The child is genetically related to the ones who provided their eggs and sperms.
2) On the basis of payment to a surrogate, surrogacy is of 2 types
a) Compensated/commercial surrogacy- When the surrogate mother is paid beyond the medical expenses and such other prescribed expenses, and insurance coverage for carrying the child for the intending parents, it is called commercial surrogacy. It also includes selling and buying of human embryos for surrogacy.
b) Altruistic surrogacy- When the surrogate mother does not receive any payment except the medical expenses and such other prescribed expenses, and insurance coverage for carrying the child for the intending parents, it is called altruistic surrogacy. It is generally performed by a close member of the family or a friend.
The provisions 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.
Surrogacy Regulation Bill, 2016 and its Salient Features
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 -:
- Proposal for making commercial surrogacy illegal,
- Allows altruistic surrogacy only,
- Requires intended parents to be married for five years,
- The Intending parents need to have a certificate of their infertility,
- Women can be a surrogate mother only once in her lifetime,
- The surrogate mother should be a close relative of the intended parents,
- The surrogate mother should be married and have a biological child &
- 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.
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 (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.
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.
Apart from the Constitution, the Bill of 2016 still violates basic principles and rights and is baseless in many aspects.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Surrogacy (Regulation) Bill, 2019
Dr. Harsh Vardhan, Minister of Health and Family Welfare presented The Surrogacy (Regulation Bill), 2019 in the Lok Sabha on 15 July 2019. It was introduced by the Lok Sabha on 15 January 2019 and was passed by the Lok Sabha on 5 August, 2019.A Select Committee was constituted on 21 November 2019 at the Rajya Sabha to which the bill was referred. The Select Committee was chaired by Shri Bhupender Yadav. Its report came on 5 February 2020. The bill states that only altruistic surrogacy is allowed in India and not commercial surrogacy. This is because there was extreme exploitation of surrogate mothers and surrogate children. The surrogate mothers died, and surrogate children were abandoned. Human embryos and gametes were being imported, exported and sold. So, there were countless reports of unethical practices. The Bill also states that surrogacy can only be practiced if one or both the partners have proven infertile. The bill defines infertility as inability to have a child after 5 years of unprotected sex. Various provisions of the The Surrogacy (Regulation Bill), 2019 are:
Section 4, clause (ii) states the grounds on which surrogacy is allowed –
a. When either the wife or the husband has proven infertile or when both of them have proven infertile.
b. When it is for the purpose of altruistic surrogacy and not commercial surrogacy.
c. When the children produced are not used for the purpose of sale, prostitution or any other abuse.
Any other disease or condition specified by the board by the way of regulations.
Section 4, clause(iii) states the conditions that must be fulfilled by the intending couple to undergo surrogacy. They are:
Certificate of essentiality– This is the certificate stating that either the husband or the wife or both of them are infertile and it is given by a District Medical Board.
An order has been passed by a Magistrate Court of first class or above stating that the custody of the child should be given to the intending parents. iii. Insurance coverage has been provided to the surrogate mother for a period of 16 months. Insurance should be given either by an insurance company or an insurance agent which is accepted by the Insurance Regulatory and Development Authority.
Eligibility Certificate for surrogate mother – In order to undergo surrogacy, a surrogate mother should have an eligibility certificate issued by an appropriate authority. The conditions on which the certificate is given to the surrogate mother are:
- Should be married and have a progeny of her own.
- Should be between the age of 25-35 years.
- Should be a close relative of the intending couple.
- Should not provide her own gametes which means only gestational surrogacy is allowed.
- Should never have been a surrogate before.
- Should possess a certificate of being medically and psychologically fit to undergo surrogacy.
Eligibility Certificate for intending couple– In order to undergo surrogacy, the intending couple should possess an eligibility certificate issued by an appropriate authority. The conditions on which the certificate is given to the intending couple are:
- Age of the wife should be between 23-50 years and the age of husband should be between 26-55 years.
- The intending couple are citizens of India.
- The intending couple are married for at least half a decade i.e. 5 years.
- The intending couple doesn’t already have a surviving child of their own. The child may be adopted, surrogate or biological. This does not include a surviving child who is mentally or physically challenged or is suffering from an incurable and fatal disease.
- Subject to any other conditions specified by regulations.
Section 6 states that the surrogate mother should be informed of the side effects and after effects of the procedure and a written consent form should be obtained from her acknowledging that she is aware of the effects. Moreover, the surrogate mother can rescind her consent any time before the human embryo is implanted in her womb.
Section 7 states that the intending couple cannot abandon the surrogate child because of any reason, including birth defect, genetic defect, medical condition, sex of the child, and conceiving of more than one baby. The child born out of surrogacy will be given prerogatives of a natural child and will be considered the biological child of the intending couple.
Section 9 states that no one can force a surrogate mother to abort the surrogacy at any stage except in conditions prescribed.
Section 10 states that every surrogacy clinic should be registered by the appropriate authority to undergo surrogacy procedures. Surrogacy clinics should apply for registration within a period of 60 days from the date of appointment by the appropriate authority.
Section 35 states that undertaking or advertising commercial surrogacy, abandoning surrogate children, exploiting surrogate mother, importing, exporting or selling human embryos, conducting sex selection in surrogacy are all offences and any offender is punishable with a 10 year long imprisonment with a fine up to Rs.10 lakhs.
Reports of the Select Committee
The Select Committee was constituted on 21 November 2019 consisting of 23 members of Rajya Sabha, to look into the The Surrogacy (Regulation Bill), 2019. The chairman of the committee was Shri Bhupender Yadav. The Committee visited various surrogacy clinics, where it interacted with surrogate mothers, surrogate children, intending couples, doctors etc. The Select Committee had 9 sittings in which the Bill was taken up clause by clause, opinions of stakeholders were sought, views of National Human Rights Commission, National Commission for Protection of Child Rights, United Nations Population Fund, PRS Legislative Research, etc. were heard. The Committee discussed various issues in its sittings like altruistic or compensated surrogacy, period of insurance coverage, waiting period to establish infertility, the close relative to be a surrogate mother clause, issue of single women, divorcee and widows etc. The report of the Select Committee came on 5 February 2020. Some of the amendments in the Surrogacy (Regulation) Bill, 2020 as reported by the Select committee were:
- It removed the definition of infertility given in section 2(p) i.e. inability to have a child after 5 years of unprotected sex.
- The definition of intending couple was also amended. Intending couples intend to become parents through surrogacy and have a medical indication which necessitates gestational surrogacy. However, even in this bill, the intending couple should be married to avail surrogacy.
- A clause of intending woman was added which includes an Indian woman who intends to avail surrogacy and is a widow or a divorcee between the age of 35 or 45 years. Now instead of a certificate of essentiality, only a certificate of medical indication is needed in favour of either one partner or both which indicates the necessity of gestational surrogacy.
- Insurance coverage for the surrogate mother has been increased from 16 months to 36 months.
- Now instead of a close relative to be a surrogate mother, a willing woman shall act as a surrogate mother. The willing woman who agrees to be a surrogate mother shall be taken to an appropriate authority by the intending couple or intending woman.
The surrogacy laws proposed in The Surrogacy (Regulation Bill), 2020 are a need of the hour. It bans commercial surrogacy which is very important because India has become a surrogacy hub and surrogate mothers were exploited and surrogate children were abandoned. No ethical practices were being followed in the surrogacy clinics. The banning of commercial surrogacy is thus expected to cease the unethical practices at surrogacy clinics. Moreover, the bill removes the clause of close relatives which is very essential as this could have created a pressure on the close relative to become a surrogate mother. Moreover, the trend of nuclear families is increasing, and this would have made it incredibly difficult to search for a close relative who wants to become a surrogate mother. It also allows divorced and widowed women to avail surrogacy which is a remarkable amendment as it would fulfill the dreams of many women. The Bill should be the pressing priority and should be made an Act soon. This will do wonders for the surrogacy situation in our country.
- 5 Cal. 4th 84 (Cal. 1993).
-  INSC 1656.
- AIR 2010 Guj 21.
- 447 S.W.3d 807 (Tenn. 2014).
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