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This article is written by Divyansh Singh Sisodiya, student of Symbiosis Law School Nagpur.

Abstract

Surrogacy is an important process for the couples, who are not able to have the vouchsafed wonderful capacity of being parents, but due to increasing number of the surrogacy cases in the country leads to development of the commercialisation of surrogacy which primarily affects the surrogate mother as it leads to the exploitation of the surrogate mother.

The history of the surrogacy in India is also discussed in ancient Hindu mythology which offers many instances related to the process of surrogacy from ancient time. 

The positive aspect of the surrogacy process brings happiness to the couples who are infertile but contrary to this the negative aspects is the cause of many legal, social ethical and moral issues in society of the country like India. Further the article describes more about the development in the field of the surrogacy process and how the government totally ban the commercialisation of the surrogacy and tries a lot to perform only altruistic form of surrogacy. 

Further our union cabinet has approved a draft bill to regulate and formulate the process of surrogacy to commission in the country. The aim and objective of the surrogacy regulation bill is discussed further in the later part of the article. There are some cases discussed further which show how the Indian judiciary system’s response to the phenomenon of the surrogacy and different rules and regulation related to it.

Introduction

Right to reproduce their young one is untaught right of an every individual. Parenthood is a life altering and most permanently rewarding experience.

Today in the world of technology the science of infertility medicine has moved way beforehand by leaps and bounds. When two men or women bonded with the matrimonial bond then existence of a new family comes into place and this family considered to be complete when they have gifted with the delivery of the children. However there are some couples who are not capable to have their own child. Research has stated that one in six couples have such problems. The absence of a child is considered as a stigma to the family. There are many instances where the inability to have a child led to matrimonial breakdown. The inability to have a child which is known as infertility in medical terms is a global problem. According to the WHO Report the incidence of infertility across the globe including India is around 10-15 percent.

Previously the only risk for the couples who did not have infant was once adoption, but due to the advancement in the medical facility, infertility areas and artificial human reproductive technologies surrogacy is feasible now. There are quite a number picks in artificial human reproductive technologies now days like insemination, In-vitro fertilisation, embryo transfer etc. Among all these method surrogacy has ended up to be the more popular.

Concept of Surrogacy

Surrogacy in a country like India has strengthen a new level of advancement in the field of scientific development in which a mother of another womb help another mother to help her in being a mother who by any reason not able to have child.

The word surrogate is derivation of the Latin word surrogates which means a substitute.

Definition of surrogacy

According to Black’s Law Dictionary, Surrogacy is an agreement where a woman agrees to be artificially inseminated to carry with the semen of another woman’s husband.

According to The new Encyclopaedia Britannica surrogacy define as – Surrogate motherhood as the practise in which a woman bears a child for the other couple to produce children in the usual way.

In Medical parlance – the term surrogacy means using of a substitute in a place of the natural mother. 

According to Assisted Reproductive Technology Bill surrogacy is defined as an agreement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or to her husband, with the intention to carry it to the term and hand over the child to the person or persons for whom she is acting as a surrogate.

In General there are mainly three kinds of Surrogacy:

  1. Genetic Surrogacy
  2. Total Surrogacy
  3. Gestational Surrogacy

There are two Types of Surrogacy:

  1. Commercial Surrogacy – In this type of surrogacy the surrogate mother remunerated and above all the required medical expenses during the course of the surrogacy.
  2. Altruistic Surrogacy– In this particular type of surrogacy the surrogate mother does not receive any type of financial remuneration for her pregnancy except the essential requirement for her medical expenses. 

History of Surrogacy in India

According to the Hindu mythology it also offers instances of surrogacy shows the secrecy due to which practise of surrogacy still surround us. In Bhagavata Purana, Vishnu ji heard Vasude’s prayers begging Kansa not to kill all sons being born. Vishnu heard these prayers and had an embryo from Devika’s womb transferred to the womb of Rohini, the other wife of the vasudev. Rohini the give birth to the baby Balaram, brother of Krishna and secretly raised the child while Vasudev and Devki told Kansa that the child was born dead. 

The History of surrogacy also belonged to the Mahabharata, as in Mahabharata Gandhari delivered a semi solid material on the place of delivering a child, Mahairishi Vyas further divided that semi solid material into 100 pieces and planted them in different pans. Thus the 100 Kauravas were born.

India’s First IVF baby and world second baby Kanupriya was born 67 days later on 3rd of October 1978.The baby Kanupriya is the result of the efforts made by Dr. Subhas Mukherjee and hid two mates in Kolkata. The Birth of this first IVF Indian baby was a part of tremendous controversy.

Commercialisation of surrogacy arrangement in India

The commerce of a child is a thing that can be hard to imagine as the child is symbol of the love not of the money and having a child is a perception away from the concept of marketing activities. But surrogacy has become a part of the commercial business in a country like India. This commercialisation of surrogacy has now become a political debate for the Indian society. The market of surrogacy is now becoming very large and growing very rapidly. There are “N” numbers potential parents in a country like India desire to hire other women to bear their child.

The concept of surrogacy has revolved around an ordinary biotic function of the body of a woman into a commercial contract and hence the surrogate services are now even publicized. Surrogates are being enlisted and the operating agencies make huge profits from them. The commercialization of surrogacy is nothing but the giving rise to the new problem of selling child and setting up breeding farms which may turn women into baby producers.

The management of the surrogacy process in India is termed as baby booming business by many experts. Surrogacy in India is now termed as the commercial contract for a normal biological function in the women. The reason for the booming industry of surrogacy in India is that the surrogates women are easily available in a country like India and the entire cost for the process of surrogacy is much less as compare to the other countries. In India at present the business of the surrogate motherhood involve approx. $445 billion. The only country in the world which legalised the happening of commercial surrogacy is India in year 2002. On an average the most of the surrogate’s mothers in India are paid money in Instalments for the period of 9 months in the process of surrogacy. In past few years there has been a sudden increase in the cases of surrogacy, the increment is likely to be more than 150%.

The places in India where surrogates are easily available are- Anand town in Gujarat State, Indore city in Madhya Pradesh, Pune and Mumbai in Maharashtra State, Delhi, Kolkata, Thiruvananthapuram. Childless couples from all over the world came to India in the search of the surrogate mother as the availability of the surrogate mother in India is more and at a very cheaper cost than the other countries of the world. Generally the arrangements of the process of surrogacy are drawn up in a random fashion and can be deceitful especially since surrogates are mostly from the social economic weaker section of the Indian society.

After a critical observation in India the data given by the National ART (artificial reproductive technique) Registry of India, there is jump of 300 percent cases in the year 2005 with reference to the cases from the year 2004 i.e. 50 cases in 2004 to nearly 160 cases in year 2005.

According to the Human Organs Act 1994, it bans the trade of the human organ as a part of commercial business.

The supermarket of surrogacy in a country like India

Our country became a big supermarket for surrogacy due to cheaper availability of the surrogate mothers or we can say that due to cheaper availability of the reproductive labours.

An article was published by the Hindustan Times in the year 2011 titled “MOMS ON THE MARKET” which roughly figures the surrogacy arrangements and the market value of the different process in surrogacy.

Now, here what it takes to a baby shopping in India:

  • Surrogate Charges (INR 1,00,000-3,50,000)

This fees varies from state to state in India, for this the surrogate mother must be healthy, the surrogate mother needs to be the mother of a single child, and she also have to mature enough so that she can able to bear the consequences of the process of the surrogacy.

  • Egg Donor (INR 2,00,000 approx)

Highly qualified and most fertile eggs are in demand from the egg donor and the prices are according to their fertility.

  • IVF procedure cost(INR 66,000)
  • TWINS (INR 1,35,000) 

Extra in the case of certain complications

  • Surrogate Compensation (INR 20,000- 30,000 approx)

Evolution of surrogacy laws in India

In the year 2002 commercial surrogacy was legalised by the India seeing this immense growth of surrogacy in India leads to the growth of the many commercial surrogacy firm who claims to have the forte in the surrogacy law and assisting the foreigners who came India in search of mother womb as a rent. Such marshalling are considered to be very combustible in nature as it leads the commercialisation of the baby selling and also harm the dignity and the reputation of the vouchsafed phenomenon of the women reproductive capabilities.

The 228th report of the Law Commission of India has recommended to prohibit the process of commercial surrogacy and enacted the suitable legislation which allows performing altruistic surgery which is ethical.

There were certain guidelines issued by the Indian council of medical research for regulating surrogacy arrangements they are:

  • The surrogate mother would be entitled for the monetary compensation, the value of which would be decided by the couple and the surrogate mother.
  • The surrogate mother cannot donate her own egg for the surrogacy and that she must relinquish all parental rights related to the surrogate child

Indian law associated with surrogacy

In the world of the diverse jurisdiction the legal approach to the process of surrogacy differs from one jurisdiction to another jurisdiction. The international motion to the surrogacy has been differentiated in three major approaches they are:

  1. Free Market
  2. Regulated
  3. Prohibited (forbid) 

Many jurisdiction of the world completely interdict the process of surrogacy as they proclaim commercial surrogacy to be a criminal offence in their respective jurisdiction on the contrary some jurisdiction permits process of surrogacy but only to the some extent or we can say that only on the grounds of altruism (selflessness). In the world only country India neither completely interdicts the surrogacy nor synchronizes the process of surrogacy, the reason behind this is that In India the surrogacy is not directly proclaimed unenforceable by the law so it is considered to be valid and enforceable. 

The assisted reproductive technology bill 2008 was drafted by the Indian council of medical research to sanction and regularize different form of reproductive technologies including the process of commercial surrogacy. The law commission of India in its 228th report rationalize that why there is a need of the surrogacy in India.

According to the provision ART (Assisted Reproductive Technology) bill 2013 no women of the age less than 21 years and more than 35 years can act as the surrogate mother. This bill leads to put condition on the foreign couples who are taking womb at rent which was first time by this ART bill 2013. The compensation for the surrogacy as per the guidelines by the ART bill 2013 draft will be the private negotiation between the surrogate mother and the commissioning couples. The ART bill 2013 leads to disqualify homosexual couples, foreign single individuals and the couple in live in relationship from having the child through the surrogate mother in India.

Case laws related to surrogacy in India

  • In Baby Manji Yamada’s case, in this particular case the Japanese couple entered into a contract with an Indian woman to be the surrogate mother for their child. After this Baby Manji Yamada’s was born to the Indian surrogate mother. Further the commissioning father Mr.Yamada tries to take his child to Japan for which he applies for visa to Japan to which the embassy of Japan in India denied as the Japan civil code did not grant the surrogate child. After which Mr. Yamada tried to file for Indian visa which requires a birth certificate an on birth certificate there is need of the name of the Father and Mother of the child, but in this case Mr. Yamada was the genetic father of the baby Manji but ambiguity arises in the case of the mother name as there are three mothers for that child- The commissioning mother,the egg donor and the surrogate mother ; seeing this authorities refuses to give visa to child Manji as the legal mother was not certain. In the end the Apex court of India had to be interceding and the child Manji was allowed to leave the country with her grandmother.

After the case of Manji the Supreme Court of India in 2008 held that surrogacy is permissible in India due to which it subsequently increase the international confidence in going in for the surrogacy in India. 

  • The German Couple Case in this case a childless German couple has twins through the surrogate mother with the help of Anand Infertility Clinic Gujarat. Since the German laws did not recognise the surrogacy as a means of parenthood, due to this twins are not treated to be the German citizen so the citizen so the German commissioning parents to avoid the foreseeable hurdle of the Immigration laws they approach to the High court of the Gujarat for authorizing their surrogate twin with the Indian Passport, on which Gujarat High Court held that the child who born through the surrogate mother will carry the name of the surrogate mother but not of the Biological mother and the child should be authorize with the Indian Passport and certifies him as the Indian citizen and the surrogate mother in turn had to give the child to the German couples in adoption.
  • In a another case the Israel gay couple Yonatan and Omer Gher became parents in India in year 2008 through help of a surrogate mother who belonged from Mumbai in a infertility clinic of the Bandra. After which both the gay couples have vouchsafed with a baby as the Israel laws does not allows the same sex marriage and the surrogate child so they came India for their child. After the child was born the gay couple left to the Israel in the year 2008.

All these cases aroused to the pedagogical interest and has consequently brought the process of surrogacy bill into existence that rules out the process of surrogacy rules for the foreign citizen who are approaching for the Indian surrogate mother. The ban is already in place by a letter dated 28th September, 2015 from ICMR to all the clinics in India that directs them not to assist foreign couples on having a child through an Indian surrogate mother

Surrogacy in India (not an orphan any more): SURROGACY REGULATION BILL 2016

On 21st of November, 2016 the surrogacy regulation bill 2016 was present before the Lok Sabha and on 19th December the bill was passed by the Lok Sabha.

The essential aspect of the surrogacy regulation bill 2016 is that the bill’s centre of attention is on the vetoing of the commercial surrogacy and permits to assist altruistic surrogacy. The bill also protects the surrogate mother and the child from any type of exploitation. In altruistic surrogacy there is not any type of monetary settlement to the surrogate mother other than the required essential medical outlay and any type of allowance coverage during the span of the gestation.

The Surrogacy Regulation Bill permits surrogacy only on certain given conditions like:

  1. Altruistic.
  2. The Surrogacy which is not for the commercial purpose.
  3. Only for the intending couples who ache from infertility which must be proven.
  4. The surrogacy must not for the children for sale or any type of exploitation with them.
  5. For any other circumstances or disease described through the surrogacy regulation bill 2016.

The provide legislation by the Lok Sabha includes the formation of National and State surrogacy board, pertinent authority and also includes the registration of the surrogacy clinics.

The Important provisions of the Surrogacy Bill

Section 3 – THE important features of this section are:

  1. There must be a registration of the surrogacy clinic.
  2. The process of surrogacy must be performed only at the registered clinic.
  3. The medical practitioner who is performing surrogacy must be qualified.
  4. There must not be any type of advertisement of the commercial surrogacy.

Section 4 of the surrogacy bill includes surrogacy procedures and its regulations, which includes there must be altruistic surrogacy, no whoring or trading of that surrogate child, certificate for the infertility of the intending couple must be qualified for surrogacy and it should be check by the qualified medical practitioner.

The Eligibility Criteria 

FOR THE SURROGATE MOTHER- The woman must be married ever and between the ages of 25 to 35. There must be only one time surrogate mother in her life time and also the surrogate mother must have to qualify the medical fitness test to act as a surrogate mother.

FOR THE COMMISSIONING COUPLES- The man must of the age 26 to 55 and women must be of the age between 23 to 50. Both the couples must have been married from last five years and both the commissioning couples must be the citizen of India and they have no any child before this by any means.

National Surrogacy Board

Board consists of- Chairperson- The minister who is in the charge of Ministry of health and family welfare, Vice Chairperson- The person who is secretary in charge of department dealing with the circumstances related to surrogacy.

Members- Three members from the ministry of central government from the women and child development, Three women members from the parliament, and The Director- general of the health Service of Central Government.

Offences and penalties under the Bill

The Indian Surrogacy regulation bill 2016 has certain offences like-performing or advertising the commercial form of surrogacy, exploitation of the surrogate mother and trading of the human embryo or gametes for the commercial purpose of the surrogacy. 

PENALITIES- According to the Surrogacy regulation bill 2016 all the offences mentioned above will consider the penalty of 10 years in jail and monetary fine up to the amount of 10 Lakh rupees. 

Demerits of the Surrogacy Regulation Bill, 2016

As like the coin which has two faces, the surrogacy regulation bill 2106 have also two faces, we have seen advantages of this bill in the above part herein, some of the demerits of the bill are: 

  1. It is not the realm of the state to interfere in the rights which infringe our fundamental rights as according to Article 21 Right to life of the constitution provides every citizen of the country the right to the reproductive autonomy.
  2. The surrogacy regulation bill allows surrogacy only to the married couples, but not the peoples of the LGBTQ community, or the people who unmarried divorced or the widow.
  3. As the surrogacy regulation bill 2016 allows surrogacy only to the married couples, it also violates the Article 14 i.e. Fundamental Right to equality.
  4. The surrogacy regulation bill refutes law of adoption in India. Section 7 and 8 of the Hindu Adoption and maintenance Act, 1956, and Section 57 of the Juvenile Justice Act, 2015 allows conditional adoption for single and divorced parents.
  5. The complete ban on the commercial surrogacy affects the livelihood of the surrogate mother who is from the economical vulnerable backgrounds, and the commercial surrogacy is the means of their livelihood.

Conclusion 

Surrogacy in the world is not a new concept of having a child but the process of the surrogacy had been practised from ancient times. The method of the surrogacy is not only limited to the couples who are infertile or not able to have a child without any medical deformity but the surrogacy is also practised by anyone who wishes to have a child. Due to the rising number of surrogacy process it influences the country or the world in raising the debates on the legal, ethical, religious and the moral issues all over the world. The increment in the process of commercial surrogacy leads to the violation of the human rights but commercial surrogacy safeguards the reproductive prerogative of the infertile women.

As India is becoming a booming industry for the process of the surrogacy due to which it brought certain complexities and many social, ethical, and legal issues related to surrogacy due to which the requirement for a particular legislation being needed.

The Surrogacy regulation bill in comes at the right time when there is need to look into the process of the commercial surrogacy which is becoming an unethical business for the people of India at large. The bill mainly focuses on the prohibition of the exploitation that is practised with the surrogate mother and the child too who is born through the surrogacy.

The process of surrogacy in a country like India has both positive as well as the negative impact. If it is used shrewdly then it bring satisfaction to many infertile couples who are not able to have a child, but if the process of surrogacy used in a careless manner or used for the purpose of commercialisation then it has adverse effect on the society at large.

References

  • https://en.wikipedia.org › wiki › Surrogacy in India
  • A article on surrogacy regulation bill (2016) on legal service India
  • The Surrogacy regulation bill 2016 passed by the parliament.
  • Fees structure for the supermarket of surrogacy from different articles available on Google.com
  • www.Indiankanoon.com for referring different case laws
  • An article on commercialisation of surrogacy in India.
  • An article from www.prsindia.org/billtrack/surrogacy regulation bill 2019

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