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LEGAL ANALYSIS OF SURROGACY IN THE INDIAN CONTEXT

Author: Ajay Sahani, II year of B.A.,LL.B. from ILS law college, Pune

Co-author: Abhinav Dubey, II year of B.A.,LL.B. from ILS law college, Pune


ABSTRACT

As some women due to certain physiological conditions cannot give birth to their offspring. With the advancement in medical science, legislative change and shifts in social practices have combined to make surrogacy potentially a more acceptable form in the present outline of family creation for more infertile and involuntary childless. With the adoption of surrogacy in India’s future leads to various ill effects like commercial surrogacy, forced surrogacy, etc. Researchers believe that unregulated surrogacy in India which is only based on monetary benefit will lead to the various human rights violation and crimes related to surrogacy this research work has tried to cover the various aspects of surrogacy and also study the various suitable methods for the implementation of surrogacy in a legal framework. This research seeks to initiate the discussion regarding today’s medical development in surrogacy and also present the essential aspects of surrogacy. This research will also try to draw a comparison between various nations regarding the policy and take on surrogacy.


KEYWORDS: Surrogate mother, Commercialization of surrogacy, Human rights, Legal issues, surrogacy contracts, India


INTRODUCTION

The word ‘surrogate’ has its origin inthe Latin word ‘surrogatus’, meaning a substitute, that is a person appointed to act in the place of another.Hence a surrogate mother is a woman who carries achild on behalf of other women, either from her ovum or from the implantation in her womb of a fertilized egg from another woman.


A standard definition of ‘surrogacy’ is offered by the American law report[1] in the following manner;

“.. a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights after the child’s birth”


Indian council of medical research recognized surrogacy in 2005, which subsumes that surrogacy is a mechanism to help those who cannot naturally conceive a child. In recent years, substantial growth in surrogacy has gained much attention and has raised several human rights concerns globally, it is estimated that 15% of couples are infertile which shows infertility is one of the most prevalent medical problems. The main causes of women choosing to be surrogate mothers are poverty and kind human being. surrogacy is becoming a growing business nowadays to earn more money to overcome hardships. This research will present a critical analysis of the current regulation of surrogacy via domestic law in India and international law on the rights of the child in the current scenario unregulated surrogacy leads to gross violation of human rights. in India most surrogate mothers are paid in instalments in 9 months period but if by any chance they didn’t conceive they often not paid at all.However, apart from moral and ethical disagreement on surrogacy, loopholes in the legislation sometimes make surrogate mothers the victim of blackmail and crime[2].


HISTORY OF SURROGACY IN INDIA

● Surrogacy is a blessing for couples who are unable to conceive. India has been practising surrogacy from ancient times with the term Niyoya Dharma

● To prevent the baby from being killed, the seventh child of Vasudev and devki. Balramwas transferred in the womb of Rohini who was Vasudev’s first wife.

● Gandhari in Mahabharata after two years of long pregnancy delivered a mass. the Rishi agyasa found that the mass contained 101 cells.rishiagyasagrew these cells out of the womb in a nutrient medium out of which 100 male children known as kaurans and a female child known as dushala were developed

● Kartikeya the child of shiva and Ganga (the surrogate mother) was also born out of surrogacy. He is also known as the God of fertility

Surrogacy existed in ancient times also so there is no conflict between assisted reproduction and socio-religious mores[3].


RESEARCH METHODOLOGY

The present study has referred to a secondary source of data to analyze surrogacy in the Indian scenario. The secondary source of data includes books,journals,articles, reports published by the government and websites of different governmental and non-governmental agencies and organizations.


REVIEW OF LITERATURE

1. Wombs in labour: transnational commercial surrogacy in India. Amrita pande. Columbia university press. 2014.

The author has summarized the interviews of “fifty-two surrogates, their husbands and in-laws, twelve intending parents, threedoctors, three surrogacy brokers, three hostel matrons, and several nurses” and complimented by participant observation, the study is an intimate analysis of the life sustained by this trade. amrita pande discusses its subtleties of power; the use of divinity as a rationale for surrogacy; the absurdity of a prospering fertility business in ananti-natal state. In addition, she comments on recently proposed legislation in India on surrogacy. she advocates for greater protection of surrogate’srights, envisaging an international model of fair-trade surrogacy.


2. Social ethics, medical and legal aspects of surrogacy: an Indian scenario, R.S. Sharma Indian J Med Res. 2014 no; 140(suppl 1): S13-S16.

The author has analyzed the draft assisted reproductive technology ( regulation ) billproposes to establish a national board, state boards and national registry of assisted reproductive technology (ART) in India for accreditationand supervision of ART clinics and ART banks, ensuring that survives provided by these are ethical and that the medical, social and legal rights of all those concerned including surrogate mother are protected with maximum benefit to all the stakeholders within a recognized framework of ethics and good medical practices.


3. Surrogacy and women’s rights to health in India: issues and perspective deep Inder and Nandini Sharmear (2013) Volume: 57 Issue: 2 pages; 65- 70

Authors conclude that the government must seriously consider enacting a law to regulate surrogacy in Indiato protect and guide couples seeking such options without a foolproof legal framework implementation couples will invariably be misled and the surrogates exploited.


LAWS OF SURROGACY IN INDIA

It was back in 2002 that India legalized commercial surrogacy, which led to increased demands for surrogacy among couples who were infertile and unable to produce their biological child. Due to high demand from national and foreign couples, India became the surrogacy capital of the world due to a lack of proper framework and legislation.The ICMR (Indian Council for Medical Research) 2005 drafted a set of guidelines. but the same didn’t have any action to regulate and govern the same


In the case “baby manjhi Yamada vs union of India” the matter related to “obtaining travel documents for a baby of Japanese parents who was conceived and born in Indiausing commercial surrogacy.” As per the supreme court, commercial surrogacy is legal in India. This judgement coincided with the “Assisted reproductive technology bill” 2008. but no steps were taken to formulate it hence, promoted the “Law Commission of Indiaraised the issue of surrogacy” for further research.Then the year 2009 law commission of India submitted a report on legislation for a survey and solved the issue aboutthe same. ICMR revise the guidelines in the year 2010 and put forward the agreement between the surrogate mother and the intended parents and ART before the start of the surrogacy process. Further suggestions were been submitted by the health and family welfare to revise the draft of the bill


In 2012 a study which was conducted by the UN revealed “the economic scale of the Indian surrogacy industry which came out to be 400 million dollars a year with more than 3000 fertility clinics all over the country.”


In 2015 a complete ban on commercial surrogacy was put by the government of India and also foreign nationals were also barred from participation. “The union cabinet approved the surrogacy regulation bill in 2016.” Which allowed Indian married infertile couples to avail of surrogacy facilities. the which was passed in 2016 was very different from the bill passed in 2014


However, it still wasn’t introduced in RajyaSabha.subsequently,a replica in LokSabha introduced in 2019 termed Surrogacy (regulation)bill, 2019 and the union cabinet passed it to safeguard women who become pray due to their weak financial position[4]


It was passed in LokSabha. In Rajya Sabha, it was, the bill referred to the selected committee for examination and consultation on 21st November 2019. the committee upon considering the suggestions from all its stakeholders recommended 15 points to be incorporated intothe 2020 bill. The amended bill i.e., surrogacy regulation bill 2020


MAJOR CHANGES UNDER THE SURROGACY (REGULATION)BILL, 2020

This bill brought various historic and significant changes which are:

● The bill completely bans commercial surrogacy and only permitted altruistic surrogacy, surrogate mothers won’t receive any kind of financial help or reward for pregnancy except for medical expenses and insurance coverage sale and purchase of human gametes and embryos are also prohibited

● The bill has allowed surrogacy for (23 to 50 yrs. for the wife and 26 to 55 yrs. for husbands) Indian (heterosexual) couples and Indian single women like for divorcedand widowed it is between 35 to 45 yrs.

● The 2020 bill also increases insurance coverage from 16 months to 36 months to avoid medical complications even after the pregnancy

● The bill also made it mandatory for couples to obtain a certificate of eligibility and a certificate of essentiality.

● The surrogacy (regulation) bill 2020 also prohibits the selection of sex during the process and also intended couples necessarily need to accept the child even after any disabilities

● The bill makes it mandatory for all surrogacy clinics to be registered by the appropriate authority

● The offences under this bill include selling or purchasing human gametes or embryos forsurrogacy, advertising or undertaking commercial surrogacy, and exploiting the surrogate mother or child. The penalty for such offences includes a penalty of Rs 10 lakhs or 10 yrs. imprisonment

● The bill also proposes to establish (NSB) National surrogacy board and (SSB) State surrogacy board. these boards will advise the government in policy formation and supervision of the clinics.[5]


CASE LAWS RELATED TO SURROGACY IN INDIA

Suchita Srivastava’s vs Chandigarh administration[6]- In this case court said the right to make reproductive choices falls under the personal liberty guaranteed by article 21 including women’s entitlement to carry a pregnancy to its full term it's her choice whether she wants to give birth to the child or not. These rights form part of women's right to privacy, dignity and bodily integrity


Justice KSputt Swamy& Anr vs Union of India[7]- In this case,the court said to obtain a ‘certificate of infertility’ from the district medical board, which is a violation of the ‘right to privacy and has been recognized as a ‘fundamental right’ to be protected


Baby Manji Yamada vs Union of India[8]- a Japanese couple surrogated their child in India but before a month of the child’s birth, the Japanesecouple separated. The biological father, ikufumi Yamada wanted to take his biological child to Japan but the legal framework of both countries does not permit it and the future of the child was left in dark. in the end,the supreme court interfered in this matter and the court allowed the child to leave the country with her grandmother the case of baby manjhi Yamada spurred the government to make regulating surrogacy


Jan Balaz vs Anand municipality[9]- in this case, Gujrat high court ruled that the birth certificate of the surrogated child will carry the surrogated mother’s name and in return, the biological parent of the child will be granted the passport of Indian and in return surrogated mother have to give his child to a German couple in adoption, the appeal was made in supreme court against this judgement but the supreme court is still seized of an appeal


SURROGACY LAWS BY COUNTRY

CANADA- The assisted human reproduction act (AHRC) of Canada has banned commercial surrogacy. In Canada, only altruistic surrogacy is permitted but payments only for gestational carriers may be reimbursed and any other consideration for surrogacy is illegal.


FRANCE- In France, any kind of surrogacy whether it is commercial or altruistic has been prohibited since 1994.


IRAN - All surrogacy arrangements whether it is commercial surrogacy or altruistic surrogacy, it is legal in Iran and also popular as well due to the legal easiness people from the middle east do surrogacy in Iran.


JAPAN - The science council of Japan banned surrogacyin march 2008 and said that anydoctor, agent or client found to be indulging in surrogacy will be punished.


SAUDI ARABI – Saudi Arabia does not allow any type of surrogacy due to religious authorities, instead it suggests restoring the ability to deliver fertility by any medical procedures.


THE NETHERLANDS- Inneither land, only altruistic surrogacy is legal and commercial surrogacy is illegal even though altruistic surrogacy is legal only one hospital is allowed to perform surrogacy so it’s difficult for couples to get their number so mostpeopleprefer to go and take treatment outside


SURROGACY- friendly states like California, Illinois, Arkansas, Maryland, Washington D.C, Oregon, andthe new hemisphere among others. both New Jersey and Washington state all types of surrogaciesare legal and whereas other states either prohibit commercial surrogacy or don’t have any regulation regarding surrogacy.


SURROGACY WITH HUMAN RIGHTS PERSPECTIVE

In the case of surrogacy in India, it is hard to tell whether these women are exercising their rights or whether they are forced to become surrogate mothers due to their mothers in laws or husband’s desire to fulfil material and financial needs. Opponents of surrogacy argue that the practice is equivalent to prostitution and by that similarity; it should be disallowed on moral grounds surrogacy contracts are dehumanizing and alienating since they deny the legitimacy of the surrogate’s perspective on their pregnancy[10]


Over some time, questions have been arising about whether surrogacy is ethical or unethical, whether it's for money or a way of reflecting love to those who cannot bear children. The difference of opinion can be found regarding the same when surrogacy is divided into two types commercial and altruistic. considering the feminist’s point of view, surrogacy exploits women and their society is degraded through commercial surrogacy. But again, if we see the altruistic part, it gives hope to many.


Financial remuneration in commercial surrogacy has additional mental health benefits for surrogate mothers. research has shown that payment aids emotional detachment from the growing fetus,and, together with different psychological distancing techniques, surrogates have been shown to have an overall positive pregnancy experience.however, salaries across the globe vary, and there are no international guidelines regarding how much a cleaner should earn, how much a dentist should charge, or how much a surrogate mother will receive for her troubles


SUGGESTIONS

● There is a need for a concrete mechanism for the regulation of surrogacy in India

● Surrogate mothers need to get medical support even after pregnancy till 3 months

● If by any chance the surrogate mother gives twin children then the surrogated mother needs to be paid double or afloat 75% of the price for the second one

● The child should be given in Indian citizenship as he is born in India as he is born from the womb of an Indian citizen

●There should be a provision for both surrogated child as well surrogated mother

● Government should form a committee to monitor surrogacy clinics and to ensure that the rights of the surrogated mother and her children are not violated

● The anonymity of the surrogate mother should be maintained

●The commissioning parents shall be legally binding to accept the child irrespective of their abnormalities and if they do so they should be punished with stricter punishments

●Even if the coupleget separated before the child is in the womb of the surrogate mother, then also the couplewould be the legitimate parents of the surrogated child

● The agreements of surrogacy need to be at par with other contracts and the principles of the India contract act 1872.

● Government should introduce certain schemes and initiatives for surrogate mothers.


CONCLUSION

From this research,the researcherhas understood the concept of surrogacy whether it is commercial surrogacy or altruistic surrogacy and the researcher also understood what measures the government took to counter commercial surrogacy after getting the summary of this research the researcher concluded that, commercial surrogacy has the potential to bring joy to couples who are unable to become parents and monetary support to underprivileged even though it has various issues regarding its implementationbutall those issues are due to the loophole in the system and failure to make a rigid law on surrogacy, as we still don’t have any perfect law to regulate surrogacy.so,it is an injustice to ban commercial surrogacy without trying to bring it under regulation.Before banning commercial surrogacy, they should think about thosecouples who are waiting to be a parent but suddenly come to know that they cannot conceive and the last hope of surrogacy is also prohibited just because people are misusing it. It is pure injustice to those couples, instead of banning commercial surrogacy lawmakers should come up with the strongest law so thatonly the culprits get punished not the innocent couples who are dreaming to be a parent of theirgeneticchildren.and also,India is suffering from the problem of male infertility so in this scenario banning commercial surrogacy will be inhumane and a violation of the couple’s rights.


[1] American law reports, Validity and construction of surrogate parenting agreement,77A.L.R.470. (1989) [2] Eric Blyth, Children’swelfare, Surrogacy and Social work, The British journal of social work, Vol.23, No.3, pp. 259-275(June 1993) [3] Sakshi Sinha, understanding of surrogacy: a legal analysis in Indian contexthttps://papers.ssrn.com/sol3/papers.cfm?abstract_id=3726683 [4]Id [5]AayushVerma,surrogacy (Regulation) Bill, 2020: The Way forward, IPLeaders (Jun.24,2020)https://blog.ipleaders.in/surrogacy-regulation-bill-2020-way-forward/ [6] (2009) 14 SCR 989, (2009) 9 SCC 1. [7](2017) 10 SCC 1. [8] (2008) 13 SCC 518. [9] AIR 2010 Gujrat 21 [10] Kevin T.The ethics of surrogacy contracts and Nebraska’s surrogacy law. Vol.41. Creighton law Review; 2008.p. 185-206

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