SURROGACY AND ITS LEGAL IMPLICATIONS
Author: Amisha Gupta, B.B.A., LL.B. (Hons.) CORPORATE LAWS from UNIVERSITY OF PETROLEUM AND ENERGY STUDIES, DEHRADUN
The word surrogacy is procured from the word ‘Surrogates’ which is a Latin term and means ‘substitute’ in English. It means to carry out the process in place of another. Section 2(zc) of the Surrogacy Bill 2019[i] defines that process where one woman carries the baby in her womb for nine months intending to hand over the baby after the birth to the specific couple or the intending couple. The biological mother of that baby would be a surrogate mother but the legal mother would be the other woman to whom she’ll hand over the baby after the birth.
It is very controversial whether this practice would be legalized or not because it is observed by the surveys that 15% of the population is infertile and cannot conceive a baby. The only option left for infertile people is either to adopt or to surrogate the baby. Surrogacy practice must enhance[ii] if the baby is not intended for any illegal purpose like prostitution or human trafficking[iii].
The object behind dragging surrogacy under the spotlight of law is to ban commercial surrogacy. Commercial surrogacy is also called the concept of ‘rent the womb’, where the woman conceives the baby for money without any intention to help. There are no emotions from the perspective of the surrogate mother, she just does it for the sake of the money.
INTERNATIONAL STAND OF INDIA
From the long past years, India was the international hub of surrogacy where foreigners were attracted for getting these services. By the easy access to travel across the globe and getting different services, international agreement[iv] was originated which varied from country to country. Due to the less medical cost procured in India, women were earning a huge profit from the international market and treated this service as a business. Most of the women were forced by her in-laws to do commercial surrogacy and earn a lot of money which is much more as per the Indian currency. Later the questions were aroused on the legality of this practice which was supported and encouraged by the article 16.1 of the universal declaration of human rights, 1948 which states the freedom of man and woman to who are major, to have a family and get married. By referring this law[v] in the Indian case, B. K. Parthasarthi v. Govt. of Andhra Pradesh, the court recognized the right to reproduction and held that the ‘right to reproductive autonomy’ is the ‘right to privacy’ and to finalize their judgment they referred the case of U.S. supreme court[vi] which recognized the right to reproduce as the basic civil of oneself. India was known as the ‘pot of gold’[vii] as the GDP level of India was increasing at an alarming rate.
Soon it was realized that as there was no uniformity in handling all these services as it was not backed by the legislature, hence a lot of illegal actions and immoral services was done under the umbrella of surrogacy.
Also when there is an international surrogacy, the huge dispute was created on the nationality of the surrogate child who neither got the citizenship of his intended parents nor the commissioning parent. In baby manji case[viii], the baby which was born neither got the Indian citizenship where he was born nor the Japanese citizenship from his intended parents.
Before 2015 no need was recognized to bring down the laws for the surrogacy but in 2015 the bill[ix] was introduced in the house of parliament for gaining the control over the activities of surrogacy. Before this, in 2013 surrogacy by a single parent or homosexual people were banned which was carried forward by the bill of 2015. The bill was drafted to limit the practice and bring down its all actions under the guidance of law in 2016 which was only passed by the Lok Sabha and later got lapsed by the house which was again re-introduced in 2019. This bill got favouritism by a lot of people which include great people like the head of the research division, women activist[x].
When the bill of 2016 and 2019[xi] was introduced, one more bill was to be introduced with them which was drafted in 2013. Assisted reproductive technology bill, 2013[xii] was drafted with the object to overcome the illegal practices like commercial surrogacy which took place under the umbrella of surrogacy practice which is morally supportive practice.
228TH LAW COMMISSION REPORT
If the practice is not legally bound then it causes a lot of disruption in the society. To prevent misuse of the surrogacy, new laws were introduced and it was legally bound.
Despite banning the commercial surrogacy, the surrogacy on the contract continues as there is an agreement between the surrogate mother who ensures that she is doing the favour without any pressure and voluntarily. The contract further ensures that the family gave their consent to take over the child after the. The contract act[xiii] handles all the disputes that arise during surrogacy which are related to agreement by both the parties. Selective sex conceiving is prohibited[xiv] under all the circumstances but if there is some genuine problem to child or mother than after testing all the solution and by attaching all the medical reports, the surrogate mother can go for abortion which is governed by Medical Termination of Pregnancy Act 1971.
The main foremost purpose of the bill is to legalize surrogacy with handling the exploitation of women. They want to completely ban commercial surrogacy and protect the interest of surrogate mothers.
BILL OF 2019
In 2019, the surrogacy revolution bill[xv] was re-introduced by the health and family welfare minister[xvi]. The object of the bill was not to completely prohibit the practice of surrogacy but to permit the practice within the prescribed boundaries with the limited access. Earlier the practice was used more for the commercial or for the business purpose rather than being emotionally indulged in this process which was affecting the whole moral concept in the society.
The bill was introduced with conditions which were imposed by the health minister[xvii]. The foremost condition for this is that the favour can be done by only their close relative. By this, he meant to remove the concept of ‘rent the womb[xviii]’ which was not morally valued and they supported it by the ethical altruistic surrogacy[xix]. Only the couple who is married for 5 or more years can opt this favour by proving infertility which can be assisted by their medical reports[xx].
Moreover, the bill states the condition of the woman who can give birth to someone else’ child. It explained that the woman must be between 25 to 35, who is married and having her healthy child. After ensuring her fitness to give birth by the health certificate she can be allowed to do so only once in her life, which means that one woman can surrogate only once in her lifetime. If the intending parent already has their biological or adopted child then they can’t go for the surrogacy.
This bill propounds that there must not be any type of contract between the surrogate mother and the other mother. The meaning of the contract is extended to giving monetary preferences in exchange for money except the medical or other reasonable expenses.
RELATIONSHIP WITH CONSTITUTION
Bill of 2019[xxi] also furnished for constituting the surrogacy boards at national[xxii] and state[xxiii] level which must advise or supervise the central government for making or amending the law in their field, generating the code of conduct for conducting surrogacy and handling all the registered clinics by supervising them according to their enacted policy. The main purpose was to keep the legislature at the in this practice[xxiv] where the legislature ensures the legality of the banning on commercial surrogacy was the very controversial topic as most of the people stated that it is a huge violation of article 21[xxv] of the constitution[xxvi] which includes the right to reproduction with choice of reproduction including its privacy and dignity.
Everyone has the right of parenthood and to decide the modes of their parentage. It further states that it infringes Article 14[xxvii] of the Indian constitution as it is restricting the conditional surrogacy which only allows limited people and restricts other people based on their nationality, age, marital status or sexual orientation. It is their own choice whether they want to be in a homosexual relationship and we cannot take their right to be the parent based on their relationship. At one side the whole nation is supporting LGBTQ[xxviii] and on the other side, the bill is restricting them from the rights which are given to other couples. The bill states that only the ‘infertile’ couple can go for surrogacy which is a very limited disease as there can be any other type of disease which is not covered under the word ‘infertile’. This bill doesn’t even cover the situation in which the woman voluntarily doesn't want to conceive the baby due to any personal reason which may be busy schedule or weak health.
BILL OF 2020
Surrogacy has been a long-debated topic in India. The ethicality of borrowing a womb the ethical and felony complexities surrounding it have always been matters of situation. The surrogacy law invoice attempts to regulate the practice of Surrogacy by way of banning practices like womb hiring. It attempts to set up a delicate balance between the Rights of Infertile couples and the Human rights of Surrogate mothers. The Union Cabinet accepted the Surrogacy (Regulation) Bill after incorporating recommendations of a Rajya Sabha Select Committee.
The Surrogacy (Regulation) Bill, 2019, became passed with the aid of the Lok Sabha on August 5, 2019. The Rajya Sabha, in its meeting held on November 21, 2019, followed a motion to refer the bill to a Select Committee.
The purpose of introducing this bill was to overcome the lacking of bill 2019[xxix] and make it perfect. The bill of 2019, states that only the close relative can be appointed as the surrogate mother by the intending parent but now it is changed to every woman. The major fault in the bill of 2019 was that it gave the very narrow definition of infertility which didn’t cover most of the diseases but not it is rectified by deleting the definition of infertility and replacing it with the more corrective word.
Hence the Surrogacy (Regulation) Bill, 2020 is a moral, ethical and social regulation because it protects the reproductive rights of a surrogate mom as well as protects the rights of the kid born via surrogacy. To continue this practice legally and efficiently the various bills were introduced with the different objectives achieving in the same direction. All the major issues are discussed with their solutions. Government is also moving towards various initiatives for dealing with this problem. Law commission 228th report (2009) had recommended that surrogacy be regulated via appropriate rules.
[i] Surrogacy(regulation) bill, 2019
[ii] Said by the B.V. satyavathi from YSRCP
[iv] International surrogacy agreements (ISAs)
[vi] T. skinner v. state of Oklahoma.
[vii] By law commission, 2007.
[viii] Baby manji yamada v. union of India, 2008.
[ix] Surrogacy bill of 2015
[x] Manasi mishra, centre for social division.
[xi] Surrogacy (regulation) bill,
[xii] By union health ministry
[xiii] Contract act, 1872.
[xiv] The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 by the amendment in 2002. This is also sometimes deal with the Medical Termination of Pregnancy Act, 1971 (MTP), which was also amended in 2002.
[xv] Surrogacy regulation bill, 2019
[xvi] Harsh vardhan.
[xvii] JP nadda
[xx] Medical act,1983.
[xxi] Surrogacy(regulation) bill, 2019
[xxii] National surrogacy board (NSB)
[xxiii] State surrogacy board(SSB)
[xxiv] Cited 228th reports of law commission
[xxv] Right to freedom and personal liberty
[xxvi] Constitution of india, 1949
[xxvii] .Equality before law and equal protection of law
[xxviii] LGBTTQQIAAP (lesbian, gay, bisexual, transgender, transsexual, queer, questioning, intersex, asexual, ally and pansexual)