This article is written by Govind Hari Lath, pursuing a Faculty of Law, University of Delhi.
Table of Contents
Surrogacy is an arrangement whereby a woman (the surrogate mother) agrees to undergo pregnancy and bear a child for another person or persons, who will become the child’s parent(s) after birth. It is an unnatural way to get a child. It is thus a contract, in which a woman carries a baby for another couple. It is a type of parenting, in which the commissioning parents make a legal agreement with a woman to give birth to a child for them and give all the parenting rights to the intending parents. It is also known as ‘contract pregnancy’.
Couples with infertility or other issues rely on this alternate way of child bearing. In surrogacy arrangements, monetary compensation may or may not be involved. Receiving money for the arrangement is known as commercial surrogacy. In some countries, surrogacy is legal only if there is no involvement of money, so couples seeking for a commercial surrogacy in a country where it is banned, travel to a country that permits it. Commercial Surrogacy is worked out with the involvement of third-party agencies based on a proper contract. On the other hand, if the surrogate mother is only reimbursed for expenses, it is altruistic surrogacy.
Historical Background of Surrogacy
Surrogacy is a topic of debate for many in the fields of legal, social, ethical and many such others. It contains very conflicting situations because some people favour it, while many oppose it also because a child born through this process may have acceptability, but not respectability in many societies nowadays also.
According to Black Law’s Dictionary, the word ‘surrogate’ has its origin in the Latin word ‘surrogatus’, meaning a ‘substitution or replacement’ i.e. a person appointed in place of another. The practice of surrogacy is ancient and is known to almost all countries and societies. The major types of surrogacy are Natural Surrogacy, Gestational Surrogacy, Commercial Surrogacy and Altruistic Surrogacy.
1986 is known to be the landmark year for surrogacy because of the ‘Baby M case’. In New Jersey, a couple contracted with a surrogate for bearing a child. After the birth of a girl, the surrogate rejected the monetary offer and chose to keep the child with her. The Court invalidated the surrogacy contract as opposed to public policy and termed the involvement of money as ‘illegal’, ‘criminal’ and ‘degrading to women’. However, in the best interests, the custody of the child to the intended parents, and awarded only ‘privilege visit’ to the surrogate mother.
Surrogacy in exchange of money took pace with the development of science relating to infertility and reproductive technology. Commercial surrogacy is a modern practice as opposed to traditional surrogacy, and even an expression “wombs for rent” was coined, as it became possible to grow a full term baby in any womb.
Surrogacy in Indian perspective
India first legalized commercial surrogacy in 2002 and over the years has emerged as a global hub for surrogacy for international intended parents due to relaxation of any legal framework, restrictions and regulation for a long time, which ensures a legally simple route for their parenthood. Besides these, lucrative foreign exchange rates makes Indian surrogacy cost-effective. Surrogacy was made legal in India in 2002, and was framed under guidelines issued by Indian Council of Medical Research, but these guidelines were too sloppy and without any legislative backing. It was equivalent as having no laws.
The women who chose to become surrogate, were being subjected to unethical treatment, poor living conditions and exploitation. The Surrogacy agencies in India paid only a fraction of expenses to the surrogate mother, out of the hefty fees, of what they received from the intended parents. Poverty and lack of education pushed them back in this industry and they continued to be used as baby-making machines by these agencies for money-making, which also led to their physical and mental health being deteriorated. Off lately, a lot of irregularities were being committed in this industry and a “money-making racket” in the name of a child was perpetuated.
The absence of law relating to surrogacy in India came up before the Supreme Court of India in Baby Manji Yamada v Union of India & Anr, in which a Japanese couple opted for Surrogacy via an Indian origin mother, and the baby was born in Anand, Gujarat, which is popularly known as ‘cradle of the world’. The couple separated a month before the child’s birth, the wife rejected the baby that was biologically tied to the father, the surrogate mother declined to keep the baby. The biological father, Ikufumi Yamada, wanted to take the child to Japan, but the court denied custody to the single male parent and the Japanese government didn’t permit him to bring the child back home as the child neither held Japanese nor Indian nationality. The Supreme Court of India intervened, and Japan gave the baby a visa on humanitarian grounds followed by Indian Government granting a travel certificate, and granted the grandmother custody on behalf of her son, and the child was allowed to leave the country with her grandmother. This decision legalized commercial surrogacy in India, and was reiterated in Jan Balaz v Anand Municipality and further elucidated that commercial surrogacy was legal in India as there was no law prohibiting it.
According to a study published by the Centre for Social Research (CSR), an NGO dealing with women issues, in 2014, which stated that 88% of surrogate mothers in Delhi and 76% in Mumbai said they were not aware of the clauses of the contract and there were more than 2,000 surrogacy clinics operating in India without any registration. Indian surrogacy industry has been lambasted by women’s rights groups who say fertility clinics are “baby factories” for the rich, and lack of education results in poor and uneducated women signing contracts they do not fully understand, owing to their exploitation.
Promulgation of Surrogacy Laws in India
Commercial surrogacy has been a silently-operating booming industry in India, which according to the Confederation of Indian Industry (CII), generates more than $2 billion annually, but in response to all these unregulated tactics and make way for a safe and legalized path for all concerned parties, the Court directed for the early enactment of statute, considering the large scale commercial practice in India. Even the Law commission of India in its 228th Report submitted on 5th August, 2009, recommended an urgent need for proper law for surrogacy in the country. The Report was titled as “Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy”.
The Indian Council of Medical Research (ICMR) which works under Ministry of Health & Family welfare, formulated the Assisted Reproductive Technologies (Regulation), ART Bill, 2008, which has been revised time and again by the Ministry of Law & Justice in 2010, 2013 & 2016 as well, but throughout all these years the legislation has been amended and proposed, but never passed.
However, in 2013, surrogacy by foreign homosexual couples and single parents was banned followed by a ban on commercial surrogacy in 2015 for foreign nationals and permitted entry of embryos only for research purposes. Shortly thereafter in 2016, Surrogacy (Regulation) Bill, 2016 was introduced and passed by the Lok Sabha which proposed to legalize altruistic, domestic surrogacy, but the bill lapsed owing to adjournment of the Parliament session
The new bill i.e. Surrogacy (Regulation) Bill 2019 is a replica of the 2016 bill that wasn’t able to make it through both the houses. This bill was introduced in the Lok Sabha on 15 July 2019, and it was passed on 5 August 2019. In the Rajya Sabha, the Bill was referred to a Select Committee for examination and consultation on 21st November 2019. The committee submitted its report on 5th February 2020. The committee, upon considering the suggestions of the concerned stakeholders, gave 15 recommendations in total to be incorporated into the 2020 bill. The amended bill i.e. Surrogacy (Regulation) Bill, 2020 is a reformed version of the draft legislation which was passed by Lok Sabha in August 2019, after the Cabinet has approved all the 15 recommendations of the select committee.
Major Changes brought under the Surrogacy (Regulation) Bill, 2020
There are several significant and historic changes brought in by this 2020 bill, which are:
- The Bill completely prohibits commercial surrogacy and only allows altruistic surrogacy, meaning that the surrogate mother would not receive any financial compensation and awards for her pregnancy, except for the basic medical expenses and insurance coverage. Commercial surrogacy will be prohibited, including the sale and purchase of human embryos and gametes.
- The present bill also deletes the definition of ‘infertility’ which was previously defined as the inability to conceive after five years of unprotected intercourse. The select committee was of the view that five years is too long a period for a couple to wait for a child and regarded it as unreasonable and against the objectives of the act.
- The Bill allows surrogacy to Indian married (heterosexual) couples (between 23 to 50 years for wife and 26 to 55 years for husband) and widens the applicability to include Indian-origin married couples, and Indian single woman (only widows and divorcees between the age of 35 and 45 years.
- The proposed Insurance cover for surrogate mothers has been increased from 16 months to 36 months, to counter the high risks of medical complications even after pregnancy.
- It is mandatory for the couple to obtain a certificate of essentiality and also a certificate of eligibility (proven infertility) before going ahead with surrogacy.It also provides that intending couples should not abandon the child born out of surrogacy under any condition. The new-born child shall be entitled to all rights and privileges that are available to a natural child and no sex selection can be done in this process.
- The bill also regulates the functioning of surrogacy clinics by making a mandatory registration for them with the appropriate authority.
- The offenses under the bill include advertising or undertaking for commercial surrogacy, selling or importing human embryos for surrogacy, exploiting the surrogating mother or the surrogate child and disowning the child. The penalties for such offenses attract imprisonments upto 10 lakh rupees and fines upto 10 years.
- The bill also proposes to regulate surrogacy by establishing a National surrogacy board (NSB), and State surrogacy board (SSB), whose function would be to advise the government on policy matters and supervising the functioning of the clinics.
The Surrogacy (Regulation) Bill, 2019 having been passed by the Lok Sabha is due to become the Law of the Land after its passing by the Rajya Sabha. It will be a landmark achievement for a country like India which has its own socio-legal problems. Many have been exercising this move as a progressive measure as it will curtail the exploitative practice involved commercially.
Many also see this as a regressive move, as it will strip women of autonomy over their own bodies and will violate their basic civil and fundamental rights. In Suchita Srivastava v Chandigarh Administration, the court held that the right to make reproductive choices falls under the personal liberty guaranteed by Article 21 of the Constitution and includes a women’s entitlement to carry a pregnancy to its full term, to give birth and that these rights form part of women’s right to privacy, dignity and bodily integrity. In Devika Biswas v Union of India, the Supreme Court also recognized that right to reproduction is an important component of ‘right to life’ under Article 21. In other way, this bill restricts surrogacy to married heterosexual couples within strict age range, and also discriminates against members of LGBT Community, older couples and unmarried people who might seek to have children, which goes against the principles of equality provided under Article 14 of the Constitution of India.
The Bill also requires the couples to obtain a ‘certificate of infertility’ from the district medical board, which is a violation of ‘right to privacy’ and has been recognised as a ‘fundamental right’ to be protected under the Constitution of India in the landmark judgment of Jus. KS Puttaswamy (Retd) & Anr v Union of India. As also observed in B.K. Parthasarthi v Govt. of A.P,, the right to make a reproduction is essentially a very personal decision called the ‘right of reproductive autonomy’ and is a facet of ‘right to privacy’ and the intrusion of state into such a decision making process has to be scrutinised by the Courts.
Although several women rights and feminists groups have been against commercial surrogacy because of several malpractices, there remains an inescapable fact, that it was an important source of income for many women from economically disadvantaged backgrounds, and this will definitely deprive them of their means of livelihood. A complete ban is not always feasible. India has seen a rise in infertility cases and a ban on commercial surrogacy takes away the couple’s right to start a family. Even the 102nd Parliamentary Standing Committee Report on Surrogacy has stated that restricting surrogacy to only altruistic cases has its drawbacks and is based more on ‘moralistic assumptions than on any scientific criteria’. Also, the government’s ban comes with no alternate plans for women who rely on surrogacy.
The ban on surrogacy seems to be the government’s response to stop exploitative practices involved in surrogacy. However, there are no alternate solutions for economic independence and livelihood options for women who either were surrogate mothers or wanted to be surrogate mothers in the future. It is a choice opted by the parties involved due to socio-economic conditions and it remains for the legislators to answer if commercial surrogacy could have been allowed with strong regulations and oversight. In India, legislation implementation has always been a challenge and it will be interesting to look if the lawbreakers could devise any other mechanism to achieve the purpose. However, it needs to be seen whether this bill, unlike its predecessors, could become a proper Act, and give India a legal framework to regulate this practice.
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