Surrogacy is a fertility treatment in which a woman carries and delivers a baby for the intending couple who are not capable of having a child due to physical complications like missing or abnormal uterus, multiple unexplained pregnancy miscarriages, multiple failed in vitro-fertilization attempts or the health condition of the intended mother that would usually cause a risk to her health. This paper focuses on surrogacy in India with emphasis on both legal and social aspects of it, after introducing the topic briefly the paper has put forth various definitions of surrogacy also with a discussion on its historical background. Case laws related to the issue of surrogacy have been referred and the legal aspect of this issue has been discussed in the global scenario with various comparative studies that have been done in this paper. This research encompasses these problems that are related to the rights of women and the issue of surrogacy. The judicial response in India regarding surrogacy has also been mentioned. In India Surrogacy to date remains unregulated, with a bill (The Surrogacy Regulation Bill, 2018) that includes a slight amendment of the Surrogacy Regulation Bill, 2016 that focused on regulating surrogacy services in the country and to prohibit the potential exploitation of surrogate mothers and the children born through surrogacy. The provisions contained in the bill are in contradiction with the fundamental rights of the citizens which have been granted by the supreme law of the land, the constitution. This paper shall conclude by putting forth the concluding observations followed by some suggestions and recommendations on surrogacy.
Infertility is generally known as a social stigma in India. It is hypothesized that the agony and trauma of infertility are best felt and described by the infertile couples themselves. Though infertility does not claim the life of an individual it inflicts devastating influence on the life of an individual for not fulfilling the biological role of parenthood for no fault of his or her own. It is also known that in general, Indian society has got a very stable family structure, strong desire for children and particularly for a son to carry forth the lineage or Vanish. With the enormous advances in the field of medicine, infertility can now be treated using new medical technologies. collectively called Assisted Reproductive Technology (ART) such as in-vitro fertilization (IVF) or intracytoplasmic sperm injection (ICSI). Surrogacy is derived from the Latin word “Surrogates” which means a substitute that is a person appointed to act in place of another. There are various other definitions of surrogacy.
According to Black’s Law Dictionary, ‘an agreement wherein a woman agrees to be artificially inseminated with the semen of another woman’s husband.” The New Encyclopedia Britannica defines- ‘Surrogate motherhood’ as the practice in which a woman bears a child for the couple to produce children in the usual way. In Medical parlance- the term surrogacy means using a substitute in place of the natural mother. The ART Bill has defined surrogacy as ‘an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belongs to her or her husband, intending to carry it to the term and hand over the child to the person or persons for whom she is acting as a surrogate.
TYPES OF SURROGACY
In this case, the surrogate mother either undergoes artificial insemination or IVF with sperm from the male or a sperm donor. The surrogate mother carries the baby, delivers that baby and then gives that baby to the parents to raise. The traditional surrogate mother is the baby’s biological mother because it’s her egg that was fertilized by the intended father’s sperm.
In the case, there is a woman who is the surrogate mother and who carries a baby that has been conceived using the egg of the intended mother, or an egg donor, and sperm from the intended father or a sperm donor. A gestational surrogate mother has no genetic connection to the baby because it wasn’t the gestational surrogate’s egg that was used during the IVF cycle.
In the case, financial compensation is not given to the surrogate mother, though the commissioning parent may provide fees and costs to the surrogate mother in bringing an embryo to the term. This type of surrogacy is mostly common among family members or close friends. The typical reason given for why no financial compensation is needed is that, in this type of surrogacy, the decision to be a surrogate stems from love, not from personal gain or even avarice.
In this case, the surrogate is financially compensated beyond expenses associated with pregnancy. That is the surrogate is paid for her gestational services.
No authentic documents have been found to date to trace the history of surrogacy in India. However, information has been collected from various chronicles, epics, myths and legends that have been passed on to this generation by the previous generations. To conclude the fact that surrogacy was also familiar in the ancient world, various instances related to it have been mentioned below:-
In Mahabharat, the wife of Dhritrashtra that was Gandhari was said to be going through the period of pregnancy for nearly two years after which the lady delivered a mole which was said to have 101 cells in it. For the growth, they were kept in a nutrient medium until the completion of the entire period. Amongst all of these one developed as a female child called Duhshee and the rest 100 developed into male children. There is an instance mentioned in the Bible where Abraham’s wife Sarah could not have children in the beginning. She handed over Hagar, her handmaid to her husband to produce a child. The world’s second and India’s first IVF baby, Kanupriya, alias Durga, was born days later on October 3, 1978, through the efforts of Dr. Subhas Mukherjee and his two colleagues in Kolkata. The birth of baby Kanupriya (also known as Durga), through the novel procedure, was marked by tremendous controversy.
THE SURROGACY IN INDIA AND IT’S EXTENT
There are various reasons because of which India has become a hotspot for surrogacy especially for couples from abroad, the reason being the:-
- Lower Cost- Surrogate mothers ask for a comparatively lower cost for surrogacy as compared to countries like the United States.
- Absence of a regulatory framework in the country.
- A contract based on surrogacy might not be enforceable in the home country
- Also, the reason being that due to better-perceived practices, a couple might want to enter into a surrogacy arrangement in a foreign surrogacy system.
The surrogate mothers who usually enter into such a kind of an agreement based on surrogacy are from the economically weaker sections of the society as a result of which they tend to enter into the contract with minimal fees which leads to major exploitation of these women in the society. Also, the problem of International Surrogacy is correctly depicted by the words, “Born in India, Nowhere to Belong” which is used to describe the famous Balaz Case. A petition was filed by a German couple Jan Balaz and Susan Anna Lohlad regarding the grant of citizenship for their twin babies. The twins were born to an Indian Surrogate mother in January 2008 but were still regarded as stateless citizens as they had neither German Citizenship nor Indian Citizenship. The twins Nicholas and Leonard were refused citizenship by Germany on the ground that their country did not recognize surrogacy as parenthood. Even in India, they weren’t granted citizenship which leads to major legal complications. As of now, surrogacy arrangements are governed by individual contracts within parties in question. There is an urgent need for legislation to regulate the rights and obligations of parties involved in a surrogacy arrangement. There is no law governing Surrogacy in India however the Supreme Court Judgement in the Manji Case proved that the environment in India, however, remains favorable to surrogacy. The Supreme Court in the 2008 Manji case held that commercial surrogacy was permissible in India. Baby Manji was commissioned by Japanese parents (through an unknown egg donor and the husband’s sperm) and was born to a surrogate mother in Gujarat. The parents divorced before the baby was born. The genetic father wanted the child’s custody, but Indian law barred single men from it, and Japanese law didn’t recognize surrogacy. The baby was ultimately granted a visa, but the case underscored the need for a regulatory framework for surrogacy in India. International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par/uniformity else the concerns and interests of parties involved will remain unresolved. The legal aspects surrounding surrogacy are complex, diverse and mostly unsettled. In most of the countries world over, the woman giving birth to a child is considered as the Child’s legal mother. However, in very few countries, the Intended Parents are recognized as the legal parents from birth by the virtue of the fact that the Surrogate has contracted to give the birth of the Child for the commissioned Parents. India is one country amongst the few, which recognize the Intended/ Commissioning Parent/s as the legal parents. Many states now issue pre-birth orders through the courts placing the names of the intended parents on the birth certificate from the start. In others, the possibility of surrogacy is either not recognized (all contracts specifying different legal parents are void), or is prohibited.
In this case, an Australian couple was held liable for abandoning their son Baby Gammy who was suffering from Down Syndrome. He was given birth by a Thai Surrogate mother along with his twin who possibly had no signs of Down Syndrome. Ms. Chabua was a Thai woman who was hired for surrogacy for approximately $ 16,000 and she gave birth to the twins in December 2013. The couple intentionally took away the healthy baby Pipah and left their son Gammy because of the Down syndrome he was suffering from right after birth. Ms. Chanbua raised the baby even after not being related to him genetically. This conflict had resulted in a change in surrogacy laws in Thailand and had sparked an international debate about surrogacy.
The issue raised was the refusal of birth certificate to the children born through surrogacy. The Court found unanimously that the French authorities’ refusal violated the children’s right to family life under the European Convention. However, concerning the right of the children complainants, the Court decided that the refusal to issue a birth certificate, which put the children in a position of legal uncertainty, constituted a violation of the right to respect for their private life. Because they are related biologically to one of their parents, it cannot be claimed that it is in the interest of the children to be deprived of that legal relationship. Therefore, given the serious restriction on the children’s ability to establish their identity in law, the right to respect for private and family life protected by the Convention has been violated.
In October 2008 there was another Israeli gay couple Yonatan and Omer Gher who became parents in India when their children were given birth through surrogacy with the assistance of a Mumbai based surrogate in a fertility clinic in Bandra. A report was given that a 3.8-kilo baby was born to them in Hiranandani hospital at Mumbai on 12th October. Yonatan and Omer had been living as a couple for the past seven years and so they had decided to have a child with a view to starting their family. But the issue with them was that Israel did not allow queer couples to have an adopted child or to have a baby through surrogacy, as a result, India became their choice to have a baby through surrogacy. Yontan had donated his sperm and had therefore selected an anonymous lady to become the surrogate mother to their child. Accordingly, the child was conceived in the fertility clinic and after the baby was born, the couple left for Israel on 17th November 2008.
THE SURROGACY (REGULATION) BILL, 2018
The Surrogacy (Regulation) Bill, 2018, with slight amendments to the 2016 Bill, received its nod from the Lok Sabha on December 19, 2018, which extends to the whole of India except the State of Jammu and Kashmir. The Bill is yet to receive the approval from the Rajya Sabha and the President’s consent after which it shall be notified as an Act. The Bill contains a total of fifty-one sections divided into eight chapters. The main highlights of the bill from Chapter I to III are as follows:-
- According to Section 3 of the bill, new surrogacy clinics, as well as the existing surrogacy clinics, should get registered under the Surrogacy (Regulation) Act, 2018.
- Promotions or advertisements aimed at inducing a woman to act as a surrogate mother or promoting a surrogacy clinic for commercial surrogacy are strictly prohibited. Hence a complete blanket ban on Commercial Surrogacy. (The term commercial surrogacy has been defined in Sec 1(f) of the bill.)
- Abortion shall not because during the period of pregnancy in case the baby is conceived through surrogacy without the written consent of the surrogate mother and only on the authorization of the same by the appropriate authority concerned and also only within ninety days from the date of commencement of this Act. The Central Government in the case of Union Territories and the State Governments, for their respective states, shall appoint one or more appropriate authorities.
- According to Sec.4 of the bill:-
Surrogacy shall be chosen as an option only when both or either of the couple is infertile and infertility shall be proven.
Altruistic surrogacy is the type of surrogacy that shall be legal in India. (The term Altruistic Surrogacy has been defined in Sec 1(b) of the bill.)
Surrogacy will only be done when the purpose of it is not producing children for sale, prostitution or any other form of exploitation.
The pre-condition for opting surrogacy as an option to have a child is that the intending couple shall possess a certificate of essentiality issued by the appropriate authority, also that the surrogate mother shall have a certificate issued by an appropriate authority.
The condition for the issue of a certificate of essentiality to the intending mother is that it should be obtained from a District Medical Board. The intending couple and the surrogate mother shall apply to a Magistrate of the first class or above and they shall obtain an order concerning the parentage and custody of the child to be born through surrogacy. Also, insurance coverage of the prescribed amount that would be mentioned in the rules should be issued in favor of the surrogate mother for sixteen months covering post-partum delivery complications.
According to Sec.4(b)(i)of the bill, the condition for issue of the certificate of essentiality to the surrogate mother is that as on the day of implantation the surrogate mother should be between the age of 25-35 years, should be married and should have a child of her own. She should be a close relative of the intending couple as only altruistic surrogacy is allowed according to the bill.
The surrogate mother is not allowed to provide her gametes [Sec.4 (b) (iii)] and she can only act as a surrogate once in a lifetime and she cannot be one now if she has been a surrogate mother before. [(Sec.4 (b) (iv)]
The condition for the issue of the certificate of essentiality to the Intending couple is that as on the day of certification the age of the intending couple should be between 23 to 50 years in case of female and between 26 to 55 years in case of a male. [Sec.4 (c) (i)] The intending couple should be married for at least five years and should not have a child of their own.
If the child that the intending couple has is mentally or physically challenged or suffers from life-threatening disorder or any kind of fatal illness with no permanent cure and is approved by the appropriate authority from a District Medical Board, the couple is allowed to have a child through altruistic surrogacy.
- Homosexuals, single parents, and live-in couples are not allowed to have children via surrogacy in India.
- Written informed consent of the surrogate mother shall be obtained in the language she understands.
- According to Sec.6(2) of the bill at any point in time before implantation of the embryo in her womb, the Surrogate Mother shall have an option to withdraw from the practice of surrogacy.
- According to Section 7 of the bill where a child is born out of a surrogacy procedure, whether within India or outside the intending couple shall not abandon such child for any reason and that the child shall be deemed to be a biological child of the intending couple and shall be entitled to all the rights and privileges available to a natural child under any law for the time being in force.
- There is an urgent need to have specific legislation for the regulation and control of surrogacy in India. It should take into account issues like access to surrogacy, liability issues, the interest of the child, the parentage of the child, etc.
- The terms and conditions must be laid down and proper balance should be maintained between the duties of the surrogate mother and the protection of the dignity of her rights. The relationship between the surrogate mother and the child and commissioning parents should be properly defined and made uniform in all surrogate practices.
- It can be said that there is nothing wrong with commercial surrogacy as far as it is governed by the law in the country. The surrogate should decide whether she wants to be a surrogate in return for compensation or not. Where there are problems associated with altruistic surrogacy as well such as:- The consent of the surrogate may be obtained through coercion and exploitation due to family pressures. The child and the surrogate may develop an emotional bond due to proximity, which may lead to emotional turmoil for all.
- Restricting limited, conditional surrogacy to married Indian couples and disqualifying other persons based on nationality, marital status, sexual orientation or age does not appear to qualify the test of equality (article 14), or of being a reasonable classification, satisfying the objective sought to be achieved. This restriction should be removed from the bill to make it equal for everyone. Also after repealing Sec.377 and making such advancement, this stands to be a big failure if queer couples are disqualified from having a child. Even they should have the right to avail of the bliss of parenthood.
- There should be provisions in the bill regarding the health of the surrogate mother, and also the kind of maternity relief available to her.
- Also, the statelessness of children is a poignant issue in the realm of international surrogacy, one which cannot be ignored as it results in the unintentional punishment of innocent children. The citizenship right of the surrogate baby is of crucial importance. The Indian government needs to take a stand in terms of conferring the surrogate baby Indian citizenship as she is born in the womb of an Indian (the surrogate mother) and in India.
- The surrogate mother should be provided by a copy of the contract as she is a party in the agreement and her interests should be taken into account.
Nature has conferred women with the beautiful gift of motherhood and every woman loves and cherishes that experience but unfortunately, some women due to some physiological issues cannot give birth to their child. The desire for motherhood leads them to look for various alternative solutions and surrogacy presents itself as the most viable alternative. But there are a lot of problems that come along with this sensitive process, the Surrogacy (Regulation) Bill, 2018 has ambiguities and loopholes that have been identified in the paper. Surrogacy should be regulated and not banned. The recommendations have been put forth in the paper. There is a lot of scope for changes that can be made in the bill and hence there should be more discussion and work on the provisions of the bill that seem to be ambiguous and then a clearly defined law needs to be drafted immediately which will pronounce in detail the Indian government’s stand on surrogacy.
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