SURROGACY

Reading time : 8 minutes

“The parents construct the child biologically; while the child constructs the parents socially”. When the parents are unable to construct the child biologically, Herein surrogacy comes as a supreme savior. The Surrogacy bill [1]defines Surrogacy as a practice where a woman gives birth to a child for an intending couple to hand over the child after birth to the intending couple. The word ‘Surrogate’ is rooted in the Latin word ‘surrogatus’[2] which means to substitute. Surrogacy is of two types: Traditional Surrogacy- where a surrogate woman’s egg gets artificially inseminated with the father’s sperm and Gestational Surrogacy – where eggs are gathered from the mother, fertilize with the sperm of the father and embryo is then placed into the uterus of gestational surrogate.it is also called as in vitro fertilization.

HISTORY

Surrogate mothers are not a new solution to the old problem of not being able to produce offspring.  The practice of Niyog Pratha, in which a woman who was childless because her husband was impotent was allowed to conceive through her brother in law was evident in surrogate fatherhood. In Mahabharata, Gandhari, the wife of Dhritarashtra, conceived but the pregnancy went on for nearly two years, after which she delivered a mass. Bhagavan Vyas found that there were 101  cells in the mass which was put in a nutrient medium, out of which 100 developed into male children ( Kauravas) and one into a female called Dusheela. In the Bible, the old testament states Hagar, the maid of Sarah bears the child for her infertile mistress with the help of Sarah’s husband Abraham.

SURROGACY- A BOON

Nature has bestowed the beautiful capacity to procreate a life within a woman and every woman cherishes the experience of motherhood[3] but unfortunately, some women due to certain physiological conditions could not give birth to their offsprings .for such mothers, surrogacy is a boon to have their genetic child. In the process the barren gets a baby, the broke gets a bonus. It provides reproductive liberty to a person. It is a ray of hope for couples who are incompatible to bear pregnancy due to medical complications, recurrent abortions, and failure of IVF procedures.

PROBLEMS

Surrogacy is a complex process involving issues such as the frustration of cross border childless couples to cope up with various barriers and fight a long legal battle for their child; problems in citizenship, nationality, rights of the child, etc as in ‘ Baby M’ Case[4] and in Jan Balaz case[5]. There are certain occasions where children are denied nationality of the country of intended parents as in Israeli gay couple’s case where the gay couple Yonatham and Omer could not in Israel adopt or have a surrogate mother. They came to Mumbai where Yonathan donated his sperm and selected a surrogate mother. Baby Evyatar was born. The gay couple took son Evyatar to Israel but the Israeli government had required them to do a DNA test to prove paternity before the baby’s passport and other documents were prepared. There are several incidences where the child was given to the couple after surrogacy was disowned by intended parents due to medical problems. Poor, illiterate women are often persuaded in such deals by their spouses or middlemen for earning easy money. These women have no right to decide regarding their bodies and life. Further, no provision of psychological screening or legal counseling as mandatory in the U.S.A.  In case of an unfavorable outcome of pregnancy, they are unlikely to be paid and there is no provision of insurance or post-pregnancy medical and psychiatric support for them.

A rich career woman who does not want to take the trouble of carrying their pregnancy is resorting to hiring surrogate mothers. It is becoming more of a commercial racket. Surrogate mothers are unaware of the existing legal and medical procedures and risks involved in the process. Surrogates are at the lowest rung of the surrogacy chain and remain the most vulnerable. She depends on the surrounding clinics or agents for the deal and not able to negotiate her terms of the contract. Repeated pregnancies and no follow up care can impact the health of the women. There is a social stigma attached to surrogacy. It leads to commoditization of children and increases other crimes such as human trafficking.

INDIA –  A REPRODUCTIVE TOURISM HUB

Indian surrogacy business is currently valued at more than $400 million[6], with more than 3000 fertility clinics nationwide, leading to the country even being dubbed as a baby factory. The usual fee given to surrogate mothers is around $25,000 to $30,000 in India which is around 1/3rd of that in developed countries like the U.S.A. This made India a favorable destination for foreign couples which look for cost-effective treatment for infertility. The world’s second and India’s first IVF baby Kanu Priya alias Durga was born in Kolkatta on Oct 3, 1978, about 2 months after the world’s first IVF boy, Louis joy brown born in Great Britain on July 25, 1978. India became the first country to legalize commercial surrogacy in 2002.

 OTHER COUNTRIES

In many countries like Britain, America, Australia, altruistic surrogacy is legal while in countries like France, Germany, Italy, Spain prohibit all forms of surrogacy. In the U.S.A, surrogacy laws vary from state to state. Surrogacy friendly states allow both commercial and altruistic surrogacy. eg California. NewYork does not allow commercial surrogacy and Michigan forbids absolutely all surrogacy.

EVOLUTION OF SURROGACY LAWS IN INDIA

The journey of surrogacy laws in India remained progressive i.e. from unregulated to legalized commercial to altruistic. Developments in surrogacy laws include ICMR guidelines on ethical and legal aspects of  ART and surrogacy,2007 provides for surrogacy contracts, financial support to surrogates, right to privacy of donor, etc. Assisted Reproductive Technologies ( Regulation) Bill, 2010 provides for the constitution of authorities to register and regulate surrogacy, grievance redressal cell, rights, and duties of a surrogate mother, etc. Home Ministry’s guidelines for regulating the practice of commercial surrogacy, 2012- earlier foreigners came to India for surrogacy on tourist visas, now such foreigners are allowed only on a medical visa, treatment to done in recognized ICMR institution, have to take exit permission from foreigner regional registration offices. The Surrogacy Regulation Bill, 2016 proposes to regulate surrogacy by establishing surrogacy boards at the central and state level. The bill bans commercial surrogacy and promotes altruistic surrogacy. Further, it allows women to be surrogate only once in a lifetime. However, the bill lapsed due to the adjournment of the house. Surrogacy Regulation Bill, 2019 promotes altruistic surrogacy to the Indian heterosexual married couple who are married to at least 5 years and within the age group of 23-50 years for women and 26-55 for men, where surrogate to be a ‘close relative’. Surrogacy Regulation Bill, 2020 allows any ‘willing woman’ to be a surrogate mother and insurance cover for the surrogate increased to 36 months from 16 months. Further, ethical surrogacy is allowed only for Indian married couples, Indian origin married couples, and Indian single women ( only widow or divorcee between the age of 35 and 45 years).

COMMERCIAL SURROGACY V. ALTRUISTIC SURROGACY

Commercial surrogacy also called ‘ Rent for Womb’ surrogacy is when a surrogate mother is given monetary compensation other than medical and insurance. It helped one to fulfill one’s dream to have a genetic child. On the other hand, it supported surrogate financially. It provides reproductive liberty to a person. On the other side, it is not acceptable by society as it devalues the traditional concept of motherhood. It reduces a woman to a ‘ breeder machine’ and turns the normal biological function of a woman’s body into a commercial contract. It degrades a pregnancy to a service and a baby to a product. Altruistic surrogacy is defined as “unselfish regard or devotion to the welfare of others”. It is surrogacy where no monetary compensation is given to surrogate except medical and insurance expenses.  The woman carries the child as an act of generosity.

SUGGESTIONS

Childlessness is a very real and tremendous problem for infertile couples all over the world. Blanket bans lead to system failures. Criminalizing practice does not lead to the eradication of the activity. Instead, it moves such practices underground into unregulated, and far more dangerous, terrain. We legislate first and think afterward, complexity is heaped upon the complexity and the confusion becomes worse confounded, the avalanche of amendments only result in more litigation. A Specialised court called surrogacy court should be created to exclusively deal with surrogacy related adjudication cases. Sex-selective surrogacy to be prohibited. Law alone cannot transform society, the mindset of people needs to be changed. The surrogacy should overstep the natural ways of procreation, only those who have been able to get children from it know the value of legitimacy of surrogacy.


[1] The Surrogacy ( Regulation) bill,2019.

[2] Ncbi.nlm.nih.gov.

[3] Wcd.nic.in.

[4] Baby Manji Yamada v. Union Of India and ANR.SCC 2008 SC 1656.

[5] Jan Balaz v. Union Of India,A.I.R.,2010 Guj 21.

[6] http://www.pri.org.

Author: Anu Verma

Editor: Kanishka VaishSenior Editor, LexLife India.

Explained: Surrogacy (Regulation) Bill, 2019

Reading time: 4-5 minutes.

Since time immemorial, the human race and its environment has changed, developed and advanced with time but one thing still remains constant that is the urge of this race to procreate. And why not this basic urge is necessary for the survival of the human species as well.

Humans are the only species that have a tendency to maintain a life-long emotional bond with their children and thus this urge of procreation is not just a physical one but rather an emotional one as well. And although mostly, people manage to successfully procreate, at times due to certain situations it is not possible for them to give birth to a new life. This is when the idea of surrogacy comes into picture.

Surrogacy, provides people who otherwise cannot procreate with an option to have a child. Surrogacy is a type of arrangement where a surrogate mother agrees to bear, carry and deliver a child for another couple, who will be called as the new born child’s parents after his or her birth. Surrogacy is basically a way out for couples, who either find it medically impossible to procreate or where there is a risk to mother’s health or in cases of same sex couples. 

Union Cabinet gave its nod to the Surrogacy Regulation Bill 2019, the bill that aims to prohibit commercial surrogacy was introduced in the Lok Sabha on the 15th of July. Commercial surrogacy a practice also known as rent a womb was legalized in India in the year 2002, in order to promote medical tourism and soon India became the hub of surrogacy driven by factors like low cost and the absence of a strict legislation.

Commercial surrogacy became a booming business in the country. According to a 2012 study by the Confederation of Indian Industry the size of India surrogate motherhood industry was 2 billion dollars a year. A study backed by the United Nations also conducted in the year 2012 estimated the economic scale of the Indian surrogacy industry to be 400 million dollars a year with more than 3,000 fertility clinics across the country but the unregulated business led to concerns over the rampant exploitation of surrogate mothers as well as their children prompting the need for a legislation to regulate surrogacy in the country

What is the meaning of surrogacy and what is commercial surrogacy?

Surrogacy is a type of arrangement where a surrogate mother agrees to bear, carry and deliver a child for another couple, who will be called as the new born child’s parents after his or her birth. Surrogacy is basically a way out for couples, who either find it medically impossible to procreate or where there is a risk to mother’s health or in cases of same sex couples. 

Surrogacy contracts are also of two types: Commercial surrogacy and Altruistic surrogacy. It is distinguished depending on whether the surrogate mother receives payment for her pregnancy or not. Commercial surrogacy is legal in countries like Ukraine and California while it is illegal in England, also, many states of the United States and in Australia they only recognize altruistic surrogacy.

Germany, Norway and Italy do not even recognize surrogacy as a contract. Though India used to recognize commercial surrogacy and due to this it was one of the favorite destinations for fertility tourists, but after the passing of the Surrogacy (Regulation) bill, 2019, commercial surrogacy is completely banned in India as well, and India currently only recognizes altruistic surrogacy.

What are the disadvantages of commercial surrogacy?

There are certain major disadvantages in exercising commercial surrogacy. It is important to understand that the cons of commercial surrogacy are not just one but can be distinguished under several head:

  • Moral/Ethical Issues
  • Social Issues
  • Economical Issues
  • Emotional/Psychological Issues
  • Health Issues: Mother and Child
  • Legal Issues

There are also certain important reasons why a new law regarding this context was needed:

  • Commoditization of child
  • Degrades motherhood
  • Reproductive Labor: An unethical practice

How does the new law seek to control surrogacy?

The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple. Regulation of surrogacy: The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.

The bill also lays down certain other guidelines regarding the aspect of surrogacy like its purposes, the eligibility criteria for intending couples, eligibility criteria for surrogate mothers, what are the appropriate authorities to take and decision or step in this regard, guidelines for registration of surrogacy clinics, constitution of national and state surrogacy boards, guidelines in reference to parentage and abortion of surrogate child, offences and penalties.

By putting down guidelines for almost all the aspects of surrogacy this new law seems to take a strong hold and control over the concept of surrogacy.

What are the challenges in its implementation?

There are certain criticisms that are there which can be considered as a reason for the difficulty in the implementation of this bill. These challenges or criticisms of the new bill are:

  • It prevents same sex couples and individuals from having surrogate children and is violative of Article 14 of the Indian Constitution
  • It violates the right to privacy of couples and surrogate mothers.
  • The eligibility condition under the Bill amounts to unreasonable restriction on the reproductive rights of a married Indian couple, violative of Article 21 of the constitution.
  • The Bill raises questions over the reproductive rights of a woman.
  • Infertility cannot be compulsory to undertake surrogacy. This violates the Freedom of choice available to citizens

In conclusion…

Surrogacy is one of the best means of having baby. It is one of the most promising treatments for infertility. It can actually solve out a lot of problems and difficulties that an infertile couple faces not only in physical terms but in mental and emotional terms as well.

And even though, surrogacy has faced its fair share of oppositions and criticisms time and again, it is necessary to note that this idea or concept of having a child is not new in today’s world but rather has existed since time immemorial.

Although it definitely requires a lot of review and reconstruction in terms of the legal provisions that are to govern it, so that the rights of all the parties involved in such a procedure is protected and this beneficial deed for humankind doesn’t turn out to be a way of exploitation in any case.

And even though India has come up with the new Surrogacy Regulation Bill, 2019, there is still a lack of internationally recognized laws creates difficulties for aspiring parents. In cases where intended parents go to surrogacy friendly countries, it can take a long time to bring a surrogate baby back to their home country.

This is due to different surrogacy laws in the home country and the country where the baby is born. Many experts argue that an international agreement similar to the Hague adoption convention could provide consistency across countries thereby making the process more streamlined.

This article is brought to you in collaboration with Aprajita Jha from National Law University and Judicial Academy, Assam.