Surrogacy In India

Spread the love

Post Views: 515

This article is written by Anupriya Mukherjee of Adamas University, an intern under Legal Vidhiya

ABSTRACT:

Commercial surrogacy in India was made legal 2002. As a result of the enormous growth of surrogacy in India, numerous commercial firms and firms claiming specialisation in surrogacy law have grown to prominence, assisting, and guiding foreign tourists who travel to India in search of renting an Indian mother’s womb for the blessing of a child. Such agreements might be viewed as exploitative in nature because they not only promote baby selling but also devalue children’s inherent value and the dignity of women’s reproductive capacity.

Even individuals who have decided to be childless experience worry from time to time. Family and friends frequently anticipate that a couple will start a family and express their anticipation either directly or indirectly. Our modern society values the family as an important institution since it is there that the human infant receives care and protection during its extended period of reliance. Additionally, it is where children build their own identities and feelings of worth, as well as social behaviours. In addition, parents believe that their involvement in the family strengthens and validates their social identity. The realisation that one cannot start a family can be devastating for individuals who wish to have children.[1]

The Indian Council of Medical Research (ICMR) introduced certain guidelines in 2005 to control surrogacy agreements[2] of which would be selected by the couple and the surrogate mother. In accordance with the guidelines, the surrogate mother is required to give up all parental rights to the surrogate child and is not permitted to provide her own eggs for the surrogacy. On November 21, 2016, the Surrogacy (Regulation) Bill, 2016, was introduced in the Lok Sabha, and on January 12, 2017, it was referred to a standing committee. The committee then presented its report to the Lok Sabha on August 10, 2017, and on the basis of that report, the Lok Sabha enacted the bill on December 19, 2018. The Surrogacy Bill, 2016, is focused on discouraging for-profit surrogacy and promoting charitable surrogacy. Dr Harsh Vardhan, the Minister of Health and Family Welfare introduced it on the fifteenth of July,2019[3]. Additionally, the bill protects the surrogate mother and child from being exploited.[4] By using a surrogate mother who is qualified under the bill’s terms, an infertile married couple who meets the requirements for surrogacy can now have a child. But beyond from paying for her own pregnancy-related medical fees and insurance, the surrogate mother will not receive any financial remuneration for lending out her womb to the intended couple. A national and state surrogacy board, as well as the appropriate authority, are established under the proposed legislation, which also allows for the registration of surrogacy clinics.

BACKGROUND:

Section 2 of the Surrogacy Bill, 2016 passed by the Lok Sabha outlines:

Altruistic Surrogacy: An altruistic surrogacy is one in which the surrogate mother, her dependents, or her representative receives no charges, expenses, fees, remuneration, or financial incentive of any kind, aside from the medical costs incurred on the surrogate mother and the insurance coverage for the surrogate mother.
Commercial Surrogacy: Commercial surrogacy is defined as the commercialization of surrogacy services or procedures or its component services or component procedures, including selling or buying or trading the services of surrogate motherhood through the provision of payment, reward, benefit, fees, remuneration or financial incentives in cash or kind to the surrogate mother or her dependents or her representative, except as otherwise provided by law[5].

[Indian man and woman who are both over the age of 21 and 18 respectively and who have been lawfully wed in this case are considered a married couple. The term “surrogacy” refers to a practise in which a woman conceives and gives birth to a child on behalf of another woman with the goal of later giving the child to the intended parents]

Important provisions of the Bill[6] [7]:

Surrogacy clinics have to be registered within 60 days of the authority’s appointment for registration.
Surrogacy is prohibited anywhere other than a licenced clinic.
No specialist or medical professional will practise commercial surrogacy
No specialist or medical professional may practise without a valid licence.
Commercial surrogacy may not be promoted, assisted, or advertised in any way by a clinic or other party that encourages a woman to become a surrogate mother, seeks a woman to serve as a surrogate, or implies a woman’s desire to serve as a surrogate.
No abortions without the mother’s permission and the necessary authorities (such authorisation should comply with the provisions of the Medical Termination of Pregnancy Act, 1971)
No human embryo or gamete storage is permitted for surrogacy purposes.

Regulation of Surrogacy and its Procedures:

Section 4: Surrogacy is permissible for the following reasons: infertility, altruistic (selfless) purposes, and for any other reason or sickness that the Board’s regulations permit. Commercial surrogacy, prostitution, and the selling of surrogate children are prohibited.

Sec. 4(3) The clinic’s director or in-charge and a specialist are certain that the conditions listed below have been met. A certificate is then granted by the relevant authority following verification of the conditions listed below:

A District Medical Board certificate of infertility for the couple planning a surrogacy.
A court order issued by a magistrate of the first class or higher addressing the custody and parenthood of the child.
Insurance for the surrogate mother and kid.

Certificate of Eligibility from the Appropriate Authority for the Surrogate Mother:

A lady who has ever been married and has a child (25-35 age).
A close relative (Not defined in this Act)
She has had one surrogate birth over her lifetime. (No limit for attempts)
A surrogate mother’s intended fitness certificate, including its psychological component.

Adequate Authority and Eligibility of the Intent Couple:

Age (women 23–50, males 26–55).
Married for 5 years.
3) Indian nationality.
4) No prior children in any way (exception- child having life threatening disease or disorder with no cure with certificate of district medical Board).

Protection of the Surrogate Mother:

Section 35: Prohibition of commercial surrogacy and exploitation of surrogate mother, child born.
No person or group shall undertake commercial surrogacy or provide any relating service.
No advertisement or publication for commercial surrogacy
No person shall disown abandon exploit in any form the child
No person shall exploit the surrogate mother
No person shall sell human embryo or gamete for surrogacy
No person shall import or help in import of human embryo or gamete for surrogacy.

[These Acts are punishable with Imprisonment of not less than 10 years and fine may extend up to 10 lakhs.]

Penalties for breaking any Act provisions are listed in Section 36: 5 years minimum in prison, with a maximum fine of 10 lakh rupees.
Section 37: Penalty for beginning commercial surrogacy:

Any person who seeks commercial surrogacy will be punished with a term of imprisonment that must not be less than five years and a fine that may reach five lakh rupees for the first offense, and a term of imprisonment that may reach ten years and a fine that may reach ten lakh rupees for any subsequent offence.

Section 38: A violation of an Act, provision, or rule for which there is no explicit punishment is punishable by a sentence of three years plus five lakhs and a daily fine of 10,000.
Section 39: Despite any provisions of the Indian Evidence Act of 1872, the court shall presume, unless the contrary is proven, that the woman or surrogate mother was coerced by her husband, the intended couple, or any other relative, as the case may be, to perform surrogacy services, procedures, or donate gametes for purposes other than those specified in clause (ii) of Section 4, and such person shall be liable for aiding in the commission of such offence under Section 37 and shall be punished accordingly.

CASE LAWS AND STATUTES:

Baby Manji Yamada vs Union of India[8] (AIR 2009 SC Page 84): The destiny of Baby Manji Yamada, who was born to an Indian surrogate mother on behalf of a Japanese couple who had already separated before the baby was even a month old, was unknown. Ikufumi Yamada, the child’s biological father, sought to bring the child to Japan, but neither the Japanese government nor the legal system allowed for such a situation. In the end, the Supreme Court of India had to step in, and the youngster and her grandmother were given permission to leave the country. The Baby Manji Yamada ruling had the most effect in that it prompted the Indian government to pass legislation governing surrogacy. Following the Manji case, the Supreme Court of India declared surrogacy legal in India in 2008. This decision strengthened foreign confidence in choosing India as the location for their surrogacy.
[9]: The Gujarat High Court decided that the surrogate mother had to give the child to the German couple who had applied for the services of an Indian surrogate mother in order for the birth certificate of the child born through surrogacy to bear the name of the surrogate mother rather than the biological mother and for the child to be granted an Indian passport, which certifies him as an Indian citizen. The Supreme Court is still considering an appeal against this ruling, and during the hearing it saw a pressing need to address the issue, which allowed for the introduction of the proposed measure from Parliament.

CONCLUSION:

Reproductive tourism has a space to develop thanks to the rise in IVF facilities in India. The argument in favour of commercial surrogacy treats the practise as a tradeable commodity. But things are a little different in practise. At this time, commercial surrogacy raises several ethical and legal concerns.

The laissez-faire attitude of the surrogacy sector[10], as well as the absence of any meaningful laws that would prevent violations of human rights, problems with citizenship, unfavourable health policies, and many other issues, should, however, be the hotly debated topics in India. In today’s world, when it comes to surrogacy, the wants and rights of the woman should be the main topic of conversation. Activists who support surrogacy believe it has enormous business potential. In a culture where they are exploited, they regard women’s ability to procreate as a tool for empowerment. Why can’t women donate gametes yet males may whilst getting compensated for it?

A few people consider the commercialization of the practise to be unethically and socially exploitative, and they also believe that surrogate mothers are underpaid for their services.

Women who experience repeated failures are subjected to medical procedures involving embryo transfer, miscarriages, and other medical problems. There are many variables to consider, including hormone therapy, multiple embryo transfers, and a high chance of STDs. Surrogacy has other drawbacks as well, including as insufficient compensation, the risk of human trafficking, a lack of knowledge of the contract, limitations on choice, post-pregnancy worries, mental health issues, and more. But before arguing for a ban, it’s important to look at the harm done to surrogates’ living arrangements. Effective laws should be taken into consideration as an alternative to outright prohibition in order to stop human trafficking as well as exploitation and the creation of the black market. It is time to break out of this slumber and create a new route based on stringent laws and enforcement practises.[11]

The legislation should be drafted to be consistent with the feminist movement. In the altruistic paradigm, the surrogate mother experiences all the emotional and physical change out of pure compassion, which does not seem to be realistic. India has a complex process for surrogacy. Even prior to beginning the operation, certain legal requirements must be met. In addition to this, surrogacy is also stigmatised on a societal level. In India, artists like Priyanka Chopra and Nick Jonas, Shilpa Shetty, and Raj are still the main beneficiaries of this technique, and the general people still does not use it very often. Even though it is a fantastic opportunity for these couples to start a family, surrogacy has to gain more acceptance from the general public. It is necessary to acknowledge the reality of a woman’s inability to give birth. Along with some clarification of the relevant law, there is a need to raise awareness in this area.

The decision to forbid commercial surrogacy has to be reviewed. Additionally, single parents and heterosexual couples need to be better represented in the laws. Laws governing the surrogate mother’s and the child’s health as well as their living arrangements need to be more stringent. For a couple or an individual who wants to experience parenthood, surrogacy is a blessing. The Bill criminalises the expression of reproductive autonomy in this area by limiting surrogacy to married couples and, as a result, excluding members of the LGBTQ community, live-in couples, single, divorced, widowed parents, and in general, individuals who are more than ready for parenthood.

Although there are few benefits to the Bill, there are many drawbacks. The right to reproductive autonomy, including the right to conception and parenthood, is enshrined in Article 21 of the Constitution under the heading “Right to Life.” Interfering with rights that make up fundamental rights is not something that the state should be doing. The choice of how to become a parent—whether a kid is delivered naturally or through surrogacy—remains entirely within the individuals.

By imposing strict standards and calling for eligibility certifications, the Bill severely restricts the autonomy of married couples and prospective surrogates. The stringent requirements, which include childlessness, five years of infertility for prospective parents, and the surrogate being a close relative, among others, are open to criticism. In addition to this, the Surrogacy Bill flagrantly ignores the fact that the women who choose to be surrogate mothers come from economically disadvantaged families and that surrogacy is a means of support for them. They would lose their source of income if commercial surrogacy were outlawed completely, and would be forced to perform reproductive work for free instead.

[1] See “REPORT OF THE COMMITTEE OF INQUIRY INTO HUMAN FERTILISATION AND EMBRYOLOGY” ISBN 0 10 193140 9 available at https://www.hfea.gov.uk/media/2608/warnock-report-of-the-committee-of-inquiry-into-human-fertilisation-and-embryology-1984.pdf, last seen on 18/4/2023

[2] Document available at https://main.icmr.nic.in/sites/default/files/reports/overview.pdf, last seen on 16/4/2023

[3] https://prsindia.org/billtrack/the-surrogacy-regulation-bill-2019, last seen on 18/4/2023

[4] https://www.legalserviceindia.com/legal/article-782-surrogacy-in-india.html, last seen on 16/4/2023

[5] https://www.indiacode.nic.in/show-data?actid=AC_CEN_12_72_00002_202147_1643711958603&orderno=2, last seen on 18/4/2023

[6] See https://prsindia.org/billtrack/the-surrogacy-regulation-bill-2016, last seen on 18/4/2023

[7] Available at https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-constitution/, last seen on 18/4/2023

[8] See Baby Manji Yamada vs Union of India & Anr on 29 September, 2008, available at https://indiankanoon.org/doc/854968/, last seen on 18/4/2023

[9] See https://www.casemine.com/judgement/in/56b48efa607dba348fff6a16, last seen on 18/4/2023

[10] See Jan Balaz Vs Anand Municipality, available at https://blog.ipleaders.in/is-surrogacy-legal-in-india/#The_current_scenario_of_surrogacy_in_India_and_the_way_ahead, last seen on 18/4/2023

[11] See “The current scenario of surrogacy in India and the way ahead” available at https://blog.ipleaders.in/is-surrogacy-legal-in-india/#The_current_scenario_of_surrogacy_in_India_and_the_way_ahead, last seen on 18/4/2023