Author: Chithra V, IV year of B.Com., LL.B(HONS) from School of Excellence in Law (The Tamilnadu Dr. Ambedkar Law University), Chennai.
Co-author: Mithra R, IV year of B.A.,LL.B(HONS) from School of Excellence in Law (The Tamilnadu Dr. Ambedkar Law University), Chennai.
Co-author: Krithika R, IV year of B.A.,LL.B(HONS) from School of Excellence in Law (The Tamilnadu Dr. Ambedkar Law University), Chennai.
ABSTRACT
With the development of science and technology in the field of reproduction, the creation of children now happens in many ways, one of which is surrogacy. In recent years, many children have been born through surrogacy. Women who accepted to be surrogate mothers benefited from it since it guaranteed their livelihood. On the other hand, the cost of surrogacy procedures in India was relatively cheaper when compared to other countries. Because of this, many foreigners came to rent surrogates and exploit poor women. This emphasised the need for proper laws to regulate the process of surrogacy in India. Only in the year 2016 was a bill drafted to regulate surrogacy procedures. Though it was drafted in the year 2016, it underwent many changes and finally became an act in the year 2021, i.e., the Surrogacy (Regulation) Act, 2021. This article attempts to discuss the evolution of surrogacy bills in India, analyse the 2019 and 2020 bills, and make suggestions as to how future laws on this subject should be made.
Keywords: technology, reproduction, surrogacy, surrogates.
INTRODUCTION
"There is such a special sweetness in being able to participate in creation." - Pamela S. Nadav[1] The term "surrogacy" is derived from the Latin word "surrogatus," which means a substitute or otherwise a person acting upon another. Black’s Law Dictionary states surrogacy as "the process of carrying and delivering a child for another person."[2]The New Encyclopedia Britannica defines surrogacy as a practise in which a woman bears a child for a couple unable to produce children in the usual way.[3]
Surrogacy is a form of reproduction in which a woman consents to carry a baby for some other intending couple who cannot give birth naturally. The history of surrogacy goes back to 1978, when India’s first IVF baby, Kanupriya, was born. India became the hub of surrogacy when it was legalised in 2002. There are two types of surrogacy practices: traditional and gestational. Traditional surrogacy is a process in which the surrogate mother will be the egg donor and the indenting father or other willing male will be the sperm donor for the creation of the child. Here, the surrogate mother will have a biological relationship with the child. In gestational surrogacy, the indenting mother or other willing female will be the egg donor, and the indenting father or other willing male will be the sperm donor for the creation of the child. Here, the surrogate mother will not have any biological relationship with the child.
The two types of surrogacy arrangements are:
Commercial surrogacy
Altruistic surrogacy
Commercial surrogacy is a method in which the surrogate mother will be carrying the child and will hand it over to the intending couple. For this process, she will be given monetary compensation beyond the medical expenses and the insurance coverage provided. It was made legal in 2002. However, ART Bill 2013 and subsequent surrogacy bills (2016, 2019, 2020) prohibit commercial surrogacy.
Altruistic surrogacy is a method in which the surrogate mother will be carrying the child and will hand it over to the intending couple. For this process, she will be given monetary compensation only for the medical expenses and the insurance coverage provided. Currently, this type of surrogacy is being practised in India.
EVOLUTION OF SURROGACY BILLS IN INDIA
2002: Commercial surrogacy was legalized. This was a boon for some surrogate mothers as it helped them to develop economically, it was also a bane for some surrogate mothers who were exploited for commercial purposes by the surrogate industries 2005: The Indian Council for Medical Research drafted some guidelines for surrogacy.
Procedures. As it didn’t have any legal backing, it remained ineffective.
2008—In the landmark case Baby Manji Yamada v. Union of India (2007),
A Japanese couple, Dr. Yuki Yamada and Dr. Ifumuki, opted for a surrogate mother in India. A month before the baby was about to be born, the couple decided to part ways. The Mrs. Ifumuki was not ready to accept the child. As Yuki’s visa expired, he had to flee to Japan. Yuki’s mother came to India and took care of the newborn. A birth certificate is mandatory to apply for visa, so Yuki intended to apply her birth certificate for the child. But in this case, the child had three mothers (the intended mother, the egg, and donor, the surrogate). The question was about the legal mother of the child. Here, the court held that it is the Commission for the Protection of Child Rights Act, 2005 [4]. which has the power to look and decide the case. This raised a need for proper laws.
Relating to surrogacy procedures. This case led to the drafting of Assisted Reproductive Technologies Bill 2008, however, did not reach the Parliament bench. It was the first bill to deal with matters relating to surrogacy. 2010: The Assisted Reproductive Technology Bill, 2010, which specifically spoke about the
Rights and obligations of surrogate mothers and improvement of clinical trials
drafted on the recommendation made by the 228th report of the Law Commission.
According to this bill, a surrogate mother can give birth via surrogacy only five times in her lifetime, in addition to her own children. This bill requires informed consent from the parties who wish to opt for surrogacy. 2013: This bill prohibits surrogacy by foreigners, live-in partners, homosexuals, widows, and unmarried, parents who already have a child. According to this bill, a surrogate
A mother can give birth via surrogacy only three times in her lifetime, in addition to her own children. This bill requires written consent from the parties who wish to opt for surrogacy. A surrogate mother can make use of the insurance schemes (This is completely optional, and the surrogate child can also avail of this insurance scheme.) 2016—This was the first bill that was drafted by parliament to specifically deal with surrogacy. It attempted to define the term "surrogacy." It allowed only altruistic surrogacy and prohibited commercial surrogacy. Only one Indian couple who had been married for five years can opt for surrogacy (at least one must be infertile). The Women who wish to be a surrogate must be married and have a child of their own. It punishes a person who approaches any doctor or surrogacy clinics for commercial surrogacy. 2019 and 2020 Two major bills were introduced in 2019 and 2020 that regulated surrogacy procedures in India.The 2019 bill was rejected, and later in 2020. Another bill was introduced by Rajya Sabha and got its presidential assent on 25th December 2021.
Surrogacy Bill 2019
The bill was introduced by Dr. HarshaVardhan on July 15, 2019 and passed by the Lok Sabha on August 5. However, it did not get approval from the Rajya Sabha.
Key Features Of The 2019 Bill
Why is only altruistic surrogacy allowed?
Commercial surrogacy is more or less like a business, where the surrogate mothers are exploited by the surrogate agencies, who do it for the sake of money. After the introduction of commercial surrogacy, India became a big hub for other nations as the cost of surrogacy was comparatively less in India. This was the main reason for the ban on commercial surrogacy, as it leads to the exploitation of poor women. On the other hand, altruistic surrogacy doesn’t involve money except for the medical expenses and the insurance coverage. This is the reason for permitting altruistic surrogacy in India.
Who can opt for surrogacy?
The 2019 bill set forth the following criteria for couples who wish to opt for surrogacy:
The couples must be Indian citizens.
At least one of them must be infertile.
Age limit: males 26–55 years; females 25–50 years.
5 years of marriage life.
no biological, adopted, or surrogate child.
Exception: a child with a mental or physical disability and a life-threatening disorder.
What are the essential criteria for surrogacy?
The indenting couple must possess a certificate of essentiality.
must possess a certificate of infertility.
order by the court to take care of the child.
16 months of insurance coverage, which includes postpartum delivery difficulties.
Who can be a surrogate mother?
Age limit: 25–35 years.
She is married and must have a child of her own.
must be a close relative of the intending couple.
can be a surrogate mother only once in her lifetime.
Written and informed consent from the surrogate mother (The surrogate has the option to withdraw her consent before the implantation of the embryo.)
must possess a certificate of mental and physical fitness.
What does the bill say about surrogacy clinics?
Only registered surrogacy clinics can opt for surrogacy procedures.
An application for registration should be presented to the appropriate authority.
This bill prohibits surrogacy clinics from permitting commercial surrogacy.
not to conduct sex selection or determination procedures.
not to advertise.
What is the need for setting up surrogacy boards?
The National Surrogacy Board
Quorum
Minister of Health and Family Welfare (head)
Secretary of the department
3 women members of the parliament
3 members, each from the ministry of women and child development, the ministry of law and justice, and the ministry of home affairs.
Functions
aiding the government with regards to policy
review and keep a track on the implementation of the law.
listing the code of conduct and overseeing the state surrogacy boards.
State Surrogacy Board
Functions
Evaluating appropriate authorities in the state
reporting to both the government and the Central Surrogacy Board.
What constitutes offences and punishments for those according to this bill?
The offences mentioned in this bill are:
Performing or advertising commercial surrogacy
Overutilization of the surrogate mother
Undertaking sex selection
Trading of human embryos and gametes
Neglecting the Newborn
All the above-mentioned offences attract imprisonment up to 10 years and a fine up to 10 lakh rupees. These offences are not bailable.
SURROGACY BILL 2020
After the select committee’s recommendation, changes were made to the 2019 bill, which was passed by the Rajya Sabha on December 8, 2021. Further, it was sent to the Lok Sabha for approval. This bill got its approval from the Lok Sabha.
Amendements made to the 2019 Bill (2020 Bill)
Any willing woman can opt for surrogacy. (includes widows and divorcees)
A surrogate mother can avail of insurance coverage for 36 months, including postpartum difficulties.
Not only infertility but also any other medical conditions that necessitate gestational surrogacy can also be grounds for surrogacy.
The intended mother’s minimum age limit was reduced from 25 to 23 years.
makes registration of surrogacy clinics mandatory.
This bill received the assent of the President on December 25, 2021, and became the Surrogacy (Regulation) Act, 2021.
Analyses of the 2019 and 2020 bills
Violation of the Indian Constitutional Provisions
Article 14 guarantees equality before the law.
According to this Article, "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." [5]
Both the 2019 and 2020 bills exclude homosexuals, live-in partners, divorced people, and the unmarried. This apparently violates Article 14, as the 2019 and 2020 bills include only heterosexual couples. It is required that there be a relationship between the classification and the purpose of the legislation. But the classification made in this bill has nothing to do with the purpose of the bill. Even after the recognition of the LGBTQ community by the courts and society, the passing of such bills is a complete injustice.
In the Navtej Singh Johar v. Union of India [6] case, it was held that any legislation that discriminates against any individual based on their sexual orientation violates Article 14. Both the bills are drafted against the decision in this case.
Article 21[7] states that "No person shall be deprived of his life or personal liberty except according to a procedure established by law."
Rights to livelihood, privacy, and reproductive autonomy come under the ambit of Article 21.
Right to livelihood: Since these bills prohibit commercial surrogacy, women who act as surrogate mothers to fulfil their daily needs will be affected.
Right to privacy: Opting for surrogacy is a personal choice for an individual. A state cannot interfere in people’s personal choices by introducing such bills. The same was held in Puttaswamy’s case. In K.S. Puttaswamy v. Union of India [8], the Supreme Court recognised the right to privacy as a fundamental right for the first time in India.
Right to reproductive autonomy: Every woman has her own choice of reproduction. Since these bills impose restrictions on that, it violates the right to reproductive autonomy.
The following are some of the international provisions that are being violated:
UDHR (Universal Declaration of Human Rights) [9]
Article 12 (Right to Privacy)
Article 16 (Right to marry and start a family)
ICCPR (International Covenant on Civil and Political Rights) [10]
Article 17 (Right to Privacy)
ICESCR (International Covenant on Economic, Social, and Cultural Rights) [11]
Article 10 (Right to Parenthood)
CONCLUSION
The Surrogacy (Regulation) Act 2021 has both pros and cons. Though it protects women from being overexploited, it also takes away some of their rights. This Act should be amended in such a way that it does not discriminate against anyone on the basis of sexual orientation. Since the surrogate mothers dedicate nearly a year for the reproduction, reasonable monetary compensation beyond the medical expenses and insurance coverage can be provided to them. If any future laws are made on this subject, they must include homosexuals, live-in partners, divorced people, and the unmarried.
"Biology is the least of what makes someone a mother"—Oprah Winfrey [12]
ENDNOTES
1. Pamela S. Nadav, 75 Inspiring Quotes About Motherhood and Being a Mom, (April 5, 2021, 9.53AM),https://parade.com/568277/lindsaylowe/mothers-day-quotes-75-inspiring-quotes-about-motherhood-and-being-a-mom/.
2. Oliphant E. NewYork: Aspen Publishers, Surrogacy in law dictionary, family law; p. 349(2007).
3.Encyclopaedia Britannica, http://www.britannica.com/EBchecked/topic/575390/surrogate-motherhood.
4. DudharejiyaKrutikaPravin, Case Analysis: Baby Manji Yamada v. UOI, (April 26th 2020).
5. INDIA CONST. art. 14
6. Navtej Singh Johar v. Union of India, A.I.R.2018 S.C. 4321 (India)
7. Article 21 of the Indian Constitution, 1950
8. K.S. Puttaswamy v. Union of India, A.I.R. 2017 S.C. 4161 (India)
9. Universal Declaration of Human Rights
10. International Covenant on Civil and Political Rights
11. International Covenant on Economic. Social and Cultural Rights
12. Oprah Winsrey, 75 Inspiring Quotes About Motherhood and Being a Mom, (April 5, 2021, 9.53AM), https://parade.com/568277/lindsaylowe/mothers-day-quotes-75-inspiring-quotes-about-motherhood-and-being-a-mom/.