Evolution and Legalization of Surrogacy In India

MEANING OF SURROGACY

The term surrogacy is used for the situation where the couple/person is unable to produce a child because of any type of infertility and they take the help of another woman to give birth to their child. The woman who keeps the embryo in her womb for the intended couple/person is known as a surrogate mother.

 In a surrogate pregnancy, eggs from the woman who will carry the baby or from an egg donor are fertilized with sperm from a sperm donor to make an embryo. The embryo is implanted in the uterus of the surrogate mother, who carries the baby until birth.

TYPES OF SURROGACY

There are two types of surrogacy in India.

1.        1. Gestational surrogacy

2.        2. Traditional surrogacy (natural surrogacy)

In gestational surrogacy, genetically the resulting child is unrelated to the surrogate mother because the embryo is created using the intended father's sperm or the donor sperm and the intended mother's eggs or a donor egg. A donor embryo can also be transferred to a surrogate mother.

In traditional surrogacy, the resulting child is genetically related to the surrogate mother because she uses her egg to become pregnant. This egg is fertilized by the intended father's sperm or a donor's sperm. Insemination of the surrogate can be done naturally or artificially

HISTORY OF SURROGACY LAWS IN INDIA

In the year 1985-1986, A woman carried the first successful gestational surrogate pregnancy.  In 1978 the surrogacy process became famous in India when India’s First IVF baby Kanupriya was born in Kolkata. Surrogacy had stated long back in India but still there was no codified law for it. In the year 2002, the government of India legalized commercial surrogacy. But till 2008 the parliament didn’t make any codified law for surrogacy.  Surrogacy in India and Indian surrogates became very popular amongst the intended foreigners or the intended people of India because of the lower costs and easy access provided by them. In 2005, the Indian council for Medical Research issued some guidelines to regulate surrogacy in our country, the guidelines stated that the surrogate mother would be given some amount which is to be decided by the intended couple and the surrogate mother and she must renounce all the parental rights related to the surrogate child.  Then, Surrogacy by foreign homosexuals and single parents was banned in 2013. Before 2015, India was a popular place for surrogacy but after 2015 government banned the commercial surrogacy in India but allowed entry of embryos only for research purposes.  

There was an urgent need for surrogacy laws as practicing surrogacy without any statutory provisions and proper laws can cause socio-legal problems. The most common issues that were arising –

The surrogates were treated in an unethical manner. Despite their health, they were forced to continue being surrogates because of poverty and lack of education. They were used as machines by the agencies which produce babies for money. One of the main reasons for surrogacy services to assail in India is poverty, it makes poor women rent their wombs for money and other essential commodities.

CASE LAWS RELATED TO SURROGACY IN INDIA

Baby Manji Yamada v. Union of India

It was the first case related to surrogacy which was decided by the Supreme Court of India and because of this case only the government find the need of making surrogacy law. In this case Indian surrogate mother gave birth to baby Mangy Yamada, a surrogate child for a Japanese couple who before a month of the child’s birth divorced her wife. The biological father wanted to take the child to Japan but there was no such provision for the same, nor did the Japanese government permit him to bring the child back home. In this case, the Supreme Court gave the rights to the grandmother of the child and realized the need for proper surrogacy laws.

Assisted Reproductive Technology Regulation Bill, 2008

In this bill it is said that the surrogacy agreement will be treated as legal contracts under the Indian contract act, 1872 so that they become legally enforceable. This bill had confirmed the possibility of commercial surrogacy by legalizing the provision of monetary compensation to the surrogate mother. This bill determined the age limit of surrogate mothers which is to be between 21-45 years. It also fixes the limit to become surrogate which is only three times. When the ministry posted this bill on their website it invited huge criticism.

The Assisted Reproductive Technology Regulation Bill, 2010

Taking note of the controversies that emerged because of the past bill of 2008, the committee recommended for its revision to be presented in parliament. This revised bill was drafted by the Ministry of Health and Family Welfare. 

The changes introduced in this bill were :-

• ·       It changes the surrogate mother's age not to be more than 35 years.
• ·       The testing and examination of the surrogate mother becomes mandatory to ensure that she is free of communicable diseases.
• ·       It allowed any woman to be a surrogate whether she is related to intended couple or not.
• ·       If surrogacy is conducted for foreign intended couples, then they must submit the required documents before commencement of surrogacy.

The Surrogacy Bill, 2016

On 21st November 2016, the bill was introduced in Lok Sabha. After a month it was referred to the standing committee. Thereafter the committee gave its report on the same to Lok Sabha and on the basis of that report Lok Sabha passed the bill on 19th December 2018. The primary purpose of this bill was to prevent commercial surrogacy, but it promotes altruistic surrogacy. In Altruistic surrogacy, there are no monetary expenses other than the medical expenses and the insurance coverage of the mother during pregnancy. Commercial surrogacy on the other hand includes a financial benefit or reward exceeding the basic medical expenses and insurance. The bill gives protection to surrogate mother and children. Now according to the provisions of the bill the intended couple can bear a child with the help of a surrogate mother eligible as per provisions of the bill. However, the surrogate mothers will not be given any monetary benefit or compensation for renting her womb to the intended couple except her medical and insurance expenses during pregnancy. It also provides for the registration of the surrogacy clinic and establishment of National and State Surrogacy board and Appropriate Authority.

Important Provisions of Bill

• ·       Compulsory Registration of Surrogacy Clinic
• ·       No surrogacy at any place than the registered clinic, no specialist or medical practitioner shall perform commercial surrogacy.
• ·       No promotion or aid or advertisement of commercial surrogacy in any way by the clinic or any person that encourages a woman to be surrogate is allowed.
• ·       No abortion can be done without the consent of the mother and the right authority.
• ·       Surrogacy is allowed only as an altruistic measure for infertile couples.
• ·       Embryo or gamete is not allowed to store for surrogacy purpose.

The 2016 bill though passed by the Lok Sabha, lapsed due to adjournment sine die of the parliament session. This led to the reintroduction of the same as The Surrogacy (Regulation) Bill 2019.

Surrogacy Regulation Act, 2021

• ·       Surrogacy is available only to Indian intended couple; the age of husband must be between 26 and 55 years and a wife must be between 23 and 50 years. Their marriage must have completed 5 years. This couple must not have any biological or adopted child. Exception is given to those couple whose children are mentally or physically challenged or are suffering from a life-threatening disorder or fatal illness. 
• ·       Certificates of proven infertility must be obtained from a District Medical Board. For the custody of surrogate children, there should be an order passed by a Magistrate’s court. 
• ·       Insurance coverage for 36 months (earlier it was 16 months) covering postpartum delivery complications for the surrogate.
• ·       The surrogate mother must be a close relative of the couple. She has to be a 25 to 35 years old married woman having a child of her own. She must possess a certificate of medical and psychological fitness for surrogacy and has been a surrogate only once in her lifetime. Further, she cannot provide her gametes for surrogacy.
• ·       The intended couple must not give any monetary benefits to the surrogate mother except the medical expenses and other related expenses.
• ·       For performing surrogacy all surrogacy clinics must be registered with the government.

If the intended couple wants to abort the child, then the written consent of the surrogate mother and the authorization of the appropriate authority is needed. The authorization must act in accordance with the Medical Termination of Pregnancy Act, 1971. But no person may force the surrogate mother to abort the fetus.

If a person seeks commercial surrogacy, then he may be imprisoned for a term of at least 10 years and a fine extending to Rs 10 lakh.

The Assisted Reproductive Technology Act, 2021

Assisted Reproductive Technology Act (ART) is available to married couples, live-in partners, single women and also foreigners. According to Ministry of health, there are less than 1000 clinics for surrogacy while there are more than 40,000 for ART. Procedures such as gamete donation, intrauterine insemination, and in-vitro fertilization or IVF are available under ART. It tries to obtain a pregnancy by handling the sperm or the oocyte (the immature female egg) outside the human body and transferring it into the woman’s reproductive system. Despite having their ethical, medical, and legal concerns, the Lok Sabha enacted a Bill that regulates and supervises ART facilities and ART banks. To avail of this service the age limit set for men and women is above the legal age for marriage but below the age of 55 and 50 respectively.

DEFICIENCY OF SURROGACY LAW

• ·        Homosexuals, Single parents, NRI’s, PIO’s, foreigners, divorced or widowed woman are not allowed for surrogacy. Article 21 of the Indian constitution which also includes right to reproductive autonomy is violating. This subject is not on the state list even then the state has made law on it.
• ·       It is also violative of article 14 of the Indian constitution as it is discriminating on the basis of sex.
• ·       It also contradicts the Hindu Adoption and Maintenance act, 1956 and Juvenile Justice Act, 2015 which allows conditional adoption for single and divorced parents.
•      A complete ban on commercial surrogacy is also not good as it deprives the right to livelihood of the surrogate mother

CONCLUSION

This bill is still discriminative in many senses i.e., against unmarried couples, single men, etc. In an attempt to make this bill ethically right, the government forgets about the poor and weaker sections of society that are deprived of their livelihood. Surrogacy is a blessing for couples or individuals who want to enjoy parenthood. There is a need to increase awareness about surrogacy so that no one can take unfair advantage of anyone in society by misusing the law.