An Analytical study of Surrogacy in India
An Analytical study of Surrogacy in India
“The greatest good is what we do for one another.” — Mother Teresa
Anand, India — This is the second time Meena has leased out her womb in three years. At the age of 12, the 35-year-old from the western Indian state of Gujarat quit school and worked in menial jobs, most recently at a limestone products factory where she claims she earned 50 to 60 rupees per day, less than a dollar.
Her husband had left her alone to raise two adolescent sons. She signed up as a surrogate at Akanksha Hospital & Research Institute in 2017, a fertility clinic in Anand, a small town about two hours outside of Gandhinagar State Capita
For many women in rural India, surrogacy, which pays about 400,000 rupees (around $5,300), has become a way out of abject poverty, but there is no credible statistics on the exact number of people going through the process. Women who spoke in Anand with journalist said that the “huge” amount would transform their lives
“I became a surrogate to fund my kids’ education and fulfil all their necessities, “Meena said. I don’t regret it, as I’m doing all this for my children .
With the Help of above story, we have studied through this Article Surrogacy practices in India where question arises How surrogacy laws was evolving in India? and what are protection given to Surrogate mother under our legislature?
Since technology has been significantly enhanced in recent years, it has helped human life in several respects. The innovation strategies will make their fantasy come true for these sterile married couples is one way for these benefits. Surrogacy is one of the most contentious ways to have an infant.
In Indian Law Surrogacy is a form of reproduction by which a woman decides to have a pregnancy and to give birth as a substitute for the contracting parties. Surrogacy can be either normal or gestational (traditional / straight). The term ‘surrogate’ originates from the Latin’ ‘surrogatus’, past participle of ‘surrogare’, which means a replacement, that is, a person appointed to act in the place of another.
Background of Surrogacy
The first “official” legal surrogacy agreement with the infant referred to as Baby M. was implemented in the mid-1970s in the US. With the world’s first “test tube” infant, Louise Joy Brown, surrogacy made the national and international headlines during the same time period.
The tradition of surrogacy in India has long been deep-rooted. Kanupriya alias Durga, born in Kolkata on October 3, 1978, was the second IVF in the world and the first IVF in India (In Vitro Fertilization). The advancement of assisted reproductive technology has grown precipitously since then .
Methods of Surrogacy
A different word for surrogacy is the substitute for the genetic-biological mother is the surrogate mother. Traditional surrogacy and gestational surrogacy are two methods of surrogacy.
The surrogate mother uses her own egg in traditional surrogacy and is artificially inseminated using sperm from the intended father or a donor. The surrogate holds and delivers the infant, and then, since she is the biological mother of the child, her paternal rights must be surrendered so that the child can be raised by the intended parents.
The child is not biologically linked to the surrogate mother in gestational surrogacy, which is often referred to as a gestational carrier. Instead, via in vitro fertilization (IVF), the embryo is produced using the eggs and sperm of the intended parents or donors, and then transferred to the surrogate.
Types of Surrogacy
Surrogacy can either be commercial or altruistic. No financial considerations, excluding medical costs and insurance, are included in the former.
It means that the surrogate mother is paid for her contribution with the compensation fee. This fee includes not only hospital costs, but also miscellaneous maternity expenses, including travel arrangements, but also a sum for her time and unselfish efforts.
Conceals the Surrogate Mother in agreeing to become pregnant and delivering the baby for the Intended Parents without any rewarding financial compensation. Conversely, in this case, the Surrogate Mother can still be compensated for her pregnancy-related expenses. Throughout some places in the world, commercial surrogacy is illegal and gestational surrogacy is prohibited in other places.
Evolution of Surrogacy Laws in India
It was the Atal Bihari Vajpayee BJP government that first legalized commercial surrogacy in 2002 that shows the immense growth of surrogacy in India contributed to the impeccable creation of many commercial companies and firms specialized in surrogacy law and leading and assisting international visitors who came in search of making an Indian mother rent her womb for a child’s blessing. These arrangements may be viewed as exploitative in nature as they not only promote the sale of babies, but also diminish the dignity of the reproductive capacity of women and the inherent value of children by altering them. This paved the way for the establishment of several international firms in India, enabling people around the world to find a surrogate Indian mother, assisting foreigners in surrogacy-related paper work, and to assist the child in obtaining a passport and a visa to leave the country.
The 228th report of the Law Commission of India recommended that, by enacting effective legislation, commercial surrogacy be prohibited and ethical altruistic surrogacy authorized. Poverty, which makes poor Indian women rent their womb for money or other basic goods, is one of the key reasons for surrogacy services to bombard India.
The Indian Council of Medical Research (ICMR) released guidelines in 2005 to govern arrangements for surrogacy. The rules suggested that the surrogate mother would be entitled to monetary benefits, the amount of which the couple and the surrogate mother would discuss. The rules further clarified that the surrogate mother should not donate her own surrogate egg and that all parental rights related to the surrogate child had to be waive.
Baby Manji Yamada vs Union of India
Baby Manji Yamada was a child born to an Indian surrogate mother to a Japanese couple who separated a month before the child was born and left the child’s future in the dark. Ikufumi Yamada, the biological father, tried to take the child to Japan, but for such a situation, the legal system provided no such clause, nor did the Japanese government authorize him to carry the child back home. In the end, India’s Supreme Court had to intervene and the child was permitted to leave the country with her grandmother. The greatest effect of the Baby Manji Yamada decision was that it forced India’s government to enact a surrogacy legislative rule. In 2008, the Supreme Court of India ruled that surrogacy was legal in India following the Manji case, which raised international confidence in India’s surrogacy.
Jan Balaz Vs Anand Municipality
Gujarat High Court ruled that the birth certificate of the child born by surrogacy will hold the surrogate mother’s identity against the biological mother and the child would be granted an Indian passport certifying him as the Indian Citizen and the surrogate mother in exchange had to send the child in adoption to the German couple who had requested the Indian surrogate mother’s services.
An appeal against this ruling is already before the Supreme Court and, after its hearing, the Supreme Court saw a strong need for the proposal of the bill of Parliament on the matter.
Both of these cases have sparked empirical attention and brought into existence the law barring surrogacy, which rules out surrogacy rules for international nationals entering Indian mother. The ban is already in effect via a letter from ICMR to all clinics in India dated 28 September 2015 that orders them not to help foreign couples have a child through an Indian surrogate mother.
The Surrogacy Bills
The Surrogacy (regulation) bill, 2016, was presented on 21 November 2016 in Lok Sabha and referred to the Standing Committee on 12 January 2017. The committee subsequently submitted its report to Lok Sabha on 10 August 2017 and Lok Sabha passed the bill on 19 December 2018 on the basis of that report.
The Surrogacy Bill, 2016, focuses on commercial surrogacy avoidance and the fostering of altruistic surrogacy. The bill also protects the mother and child of the surrogate from exploitation. Surrogacy is a process by which, with the aid of a surrogate mother eligible under the provisions of the law, an infertile married couple eligible in compliance with the provisions of the bill will now bear a child. However, except for her medical and health costs during birth, no monetary gain or reward would be given to the surrogate mother for renting her womb to the intended couple.
Registration of the surrogacy clinic and creation of the National and State Surrogacy Board and Appropriate Jurisdiction are provided for in the proposed legislation
The New Bill, i.e. The 2019 Surrogacy (Regulation) Bill is a replica of the 2016 bill that did not get through both houses. On 15 July 2019, this bill was presented in the Lok Sabha, and it was passed on 5 August 2019. The Bill was referred to a Special Committee for scrutiny and consultation in the Rajya Sabha on 21 November 2019. On 5 February 2020, the committee delivered its report. Upon evaluating the proposals of the stakeholders involved, the committee offered a total of 15 recommendations to be included in the 2020 bill. The amended bill, i.e. The Surrogacy (Regulation) Bill, 2020 is an updated version of the draft legislation approved by Lok Sabha in August 2019, following the ratification by the Cabinet of all 15 select committee recommendations .
Analysis of Surrogacy (Regulation) Bill 2020 where it discussed as –
Regulation of Surrogacy
Commercial surrogacy is banned by the Statute, although it requires altruistic surrogacy. Altruistic surrogacy requires no monetary compensation other than treatment costs and insurance coverage during pregnancy for the surrogate woman. Commercial surrogacy includes surrogacy or the associated treatments carried out in excess of basic medical expenses and insurance coverage with a monetary gain or compensation (in cash or kind).
Purpose for which surrogacy is permitted
Surrogacy is allowed if it is: (i) intended for spouses suffering from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not intended for the development of children for sale, trafficking or other means of exploitation; and (v) for any condition or disease specified by statute.
Eligibility Criteria for Intending Couple
A ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority should be applicable to the intending couple
Upon completion of the following terms, a certificate of essentiality shall be issued: (i) a certificate of proven infertility issued by the District Medical Board to one or both members of the intended couple; (ii) an order of parentage and custody of the surrogate child passed by the Magistrate’s court (iii) Insurance coverage for a period of 16 months, including the risks of postpartum surrogate childbirth.
The certificate of eligibility for the intended couple shall be given according to the following conditions: I the couple is Indian and married for a minimum of five years; (ii) between the ages of 23 to 50 (wife) and 26 to 55 (husband); they do not have any surviving child (biological, adopted or surrogate); this would not include a child that is mentally or physically disabled or suffering from life threatening disorder or fatal illness; and (iv) other conditions that could be defined by regulations.
Who Can be a surrogate Mother?
A surrogate mother is described in Chapter I of the Bill as “a woman bearing a child (who is genetically related to the intended couple) by surrogacy from the implantation of the embryo in her womb…” By donating her egg, a married woman between the ages of 25 and 35 who has a child of her own can be a surrogate or can help in surrogacy. The surrogate mother must be a close relative of the intended couple and will only once in her life become a surrogate. In addition, by providing her own gametes, a woman cannot become a surrogate mother (unfertilised eggs).
Within 90 days of the Bill being an Act, the central and state governments shall nominate one or more appropriate authorities. The duties of the appropriate authority shall include: (i) the granting, suspension or cancellation of the registration of surrogacy clinics; (ii) the implementation of standards for surrogacy clinics; (iii) the investigation and taking of steps against violation of the provisions of the Act; (iv) Recommending changes to the rules and regulations.
Registration of Surrogacy Clinics
Because they are registered with the appropriate authority, surrogacy clinics cannot perform surrogacy-related procedures. Clinics must apply for registration within 60 days of the date of the appropriate authority’s appointment.
National and State Surrogacy Boards
The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively. The NSB’s duties include (i) consulting the central government on surrogacy policy issues; (ii) setting down the code of conduct for surrogacy clinics; and (iii) monitoring the operation of SSBs.
Parentage and abortion of surrogate child
A child born out of a surrogacy operation would be assumed to be the intended couple’s biological child. The written consent of the surrogate mother and the authorisation of the appropriate authority shall be required for the abortion of the surrogate child. The Medical Termination of Pregnancy Act, 1971, shall comply with this authorization. Additionally, until the embryo is inserted in her body, the pregnant mother would have a choice to withdraw from surrogacy
Offences and penalties:
The charges covered by the Bill include: I undertaking or advertising for commercial surrogacy; (ii) exploiting a surrogate mother; (iii) abandoning, exploiting or disowning a surrogate child; and (iv) selling or importing surrogate human embryos or gametes. The penalty is imprisonment of up to 10 years and a fine of up to 10 lakh rupees for certain offences. For other breaches of the provisions of the Law, the Bill outlines a list of offences and punishments.
Surrogacy is an area with ethical, moral and legal issues revolving around it. The surrogate mother is exposed to physical, emotional and economic exploitation in all aspects of surrogacy, because the pain and agony they have endured cannot be known by the prospective mother and That is why it is important to protect her rights under the contract in such a manner that it is possible to maintain an appropriate balance between all mothers (prospective and surrogate). The interest of the person supplying a womb for surrogacy must be monetarily protected under it, including the provision of adequate protection and medical expenses incurred by the surrogate mother along with physical and emotional distress, instead of considering the arrangement like a contractual one under which the provision of penalty has been prescribed under the Bill of Surrogacy.
The concept of surrogacy cites different provisions for regulating India’s vast surrogacy industry. There are also things that need to be explained, however. Through legalizing altruistic surrogacy and banning the commercialization of surrogacy, India wants a realistic solution, but a ground check on society’s attitude is also crucial. the parties in the arrangement of surrogacy should be protected and shall all have certain rights and duties. A dynamic legislative involvement is required when anything going on ethical.
4. AIR 2009 SC 84.
5. Gujarat H.C. 2009