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THE LEGAL AND ETHICAL IMPLICATIONS OF SURROGACY REGULATION ACT 2021 ON INDIA’S FAMILY LAW AND SOCIAL NORMS

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This article is written by Shruti Jain of 5th Semester of BALLB of Delhi Metropolitan Education Affiliated To Guru Gobind Singh Indraprastha University.

ABSTRACT

The advancement of major scientific and technological advancements in obstetrics and gynecology, surrogacy is rapidly becoming a possible alternative to enable people of all genders to become parents. Even so, its path toward reality is still filled with legal and ethical dilemmas. The Surrogacy Act of 2021 coming into force earlier this year, the present article target to break down the various legal nuances involved while also considering the societal norms governing the actual scenario at ground zero. This assessment discusses the aspects of eligibility criteria, the health implications, the rights of the surrogate mother and the child born, the financial burden, and compensation. It aimed to accentuate this act and its implications on marginalized segments of society, with an attempt to bring beneficial changes for them. In this assessment, it provides viable alternatives adopted across the globe to solve the identified issues to make the present act non-discriminatory and more rewarding to all involved beneficiaries.

Keywords: surrogacy act of 2021, dilemmas, human rights, legal issues of health, LGBTQIA+ Community

INTRODUCTION

Surrogacy, as a general term, is a legal arrangement between a woman, also known as the surrogate, and the intended parents who are willing to have a child.

The great pleasure of becoming a mother figure is greater than all the pleasures of the world. It is the most precious happiness which could be enjoyed by a woman after endurance of 9 months and suffering from labour pain. But becoming mother is not in everyone’s fortune. Nature does not agree for certain woman to become pregnant (because of problem in their reproductive system). Roughly, 80 million couples are maledicted with infertility. ‘Infertility’, in terms of surrogacy, is principally incapability of woman or couples to reproduce.

For them, the new procedure was introduced which was term as Surrogacy. In Surrogacy, a woman is convenant to carry pregnancy for another wedded couples. India is assumed to be centre point of Surrogacy as lots of foreign couple visits India for the same motive. This makes India popular for fertility tourism too. In India, commercial surrogacy is validated in 2000.

 In modern times, this arrangement has turn common and supportable in society. Many people choose for surrogacy if the mother or the woman who plans on having a child cannot conceive one for a variety of medical or personal reasons. Surrogacy is legal in India in the mode of Gestational Surrogacy.

Surrogacy is an Alternative Reproductive Technique (ART) established, is the last solution for infertile couples. ART is a gift of human advancement and technologies in the place of medical sciences. In India, surrogacy is cheaper than rest of the world i.e., almost 10- 12 lakhs which is sustainable by any foreign couple.

TYPES OF SURROGACY IN INDIA

  1. Surrogacy in the traditional sense
  2. Gestational Surrogacy
  3. SURROGACY IN THE TRADITIONAL SENSE

In Traditional sense, the eggs of the surrogate mother are used. Here, egg donation is not mandatory since the egg of the surrogate mother is used.

The intrauterine insemination procedure is used in traditional surrogacy. It is an easy method where the surrogate need not under go many fertility treatments. The intended mother not required to take any treatment or undergo the egg retrieval procedure since her eggs are never used.

In the gestational method, an egg donor is needed to create the embryo that the surrogate mother would carry. Here, the In Vitro Fertilisation method is used. The embryo is produced using the eggs of the intending mother and the sperm of the father, which then the surrogate carries.

Surrogates generally prefer this type of surrogacy since there is no emotional connection, i.e., she is not the biological mother of the child.

This type of surrogacy is highly priced since both the women need to go through different fertility treatments furthermore egg retrievals.

WHY WAS COMMERCIAL SURROGACY BANNED

Commercial surrogacy was banned to ensure the welfare of surrogate mothers and children involved in the process. It aims to prevent exploitation, protect the rights of all parties, and promote ethical practices in surrogacy arrangements. The ban also addresses concerns related to the commodification of human life and the potential for exploitation of vulnerable individuals. While surrogacy is a blessing for parents who are not able to conceive a child or a single parent who wants to begin a family with a baby, it can also accelerate to the exploitation of the child as well as the woman conceiving the child. Here are a couple of reasons why commercial surrogacy is banned in India-

The woman who has had the child or the one who is the surrogate is ill-treated. This means that they have extremely miserable living conditions and are often not paid even after the intended parents get the baby. The woman then has to take legal alternative and other methods that are both time-consuming as well as costly. Her body is just habituated to having the baby and then she is left without being compensated which cause mental, physical, and financial hardships.

In addition, the commercialization of surrogacy has led to a rise in child trafficking. Child traffickers could simply get a baby by often paying a modest amount or not paying at all.

There have also been instances where the child’s health is extremely bad, such as low weight is harmful to the child in the short as well as the long period of time.

Surrogacy has accelerated to the commodification of children, raising ethical difficulties. It is well-known for destroying the bond between children and their mothers, as well as interfering with natural processes.

In addition to legal difficulties, surrogacy has psychological consequences. Surrogacy-related legal and psychological issues have come up in India on various occasions. Women have been mentally harassed or intimidated in some case of surrogacy exploitation. They get compel into the decision or their decision to become a surrogate is not respected.

LGBTQIA+ COMMUNITY EXCLUSION

The exclusion of the LGBTQ+ community from surrogacy is a complex issue with various reasons. Some countries have restrictions based on cultural, religious, or social beliefs. However, it’s important to note that laws and attitudes towards LGBTQ+ rights and surrogacy differ across countries. This Act only permit a legally married man and woman in India to get a baby through this technique, and thus the non-binary and the same-sex couple are not able to enjoy the parenthood even if they desire to. However, in the case of Navtej Singh v. Union of India, 2018, the Supreme court decriminalized homosexuality, same-sex marriage is still not legal in India hence homosexual couples do not come under the apprehension of this Act. The Sections also focus only on a man and a woman which only implies that only heterosexual couples can benefit this facility.

They need to recognize the LGBTQ community is censorious in promoting equality in society, which every citizen of India is permit to under the Indian Constitution’s fundamental rights. The Supreme Court had to deal with the matter of surrogacy for the first time in the case of Baby Manji Yamada v. Union of India (2008). Surrogacy was recognised as a means of accepting parenting by the court, and the parent might be a single parent or a homosexual couple. The Act’s implementation has entirely invalidated the latter. As a result, it is necessary to grant the status and advantage of bearing children not just to heterosexual couples, but also to gay couples and non-binary individuals.

THE SURROGACY (REGULATION) ACT, 2021

This Bill was approved in early December of 2021. Some of the essential features of the Act include the following-

All the clinics administering the surrogacy treatment and facilities demanded to be registered under this Act and people work in those clinics need to be qualify as per the criteria given in this bill.

Every facility that accomplishes surrogacy treatments must apply for registration within sixty days after the competent authority’s appointment. Every three years, registration required to  be renewed.

Commercial surrogacy is illegal in any form by any surrogacy clinic, gynaecologist, embryologist, or other medical practitioner. Only altruistic surrogacy is allowable under the 2021 Act.

The intending couple means the couple wanting to have the baby must be legally married with the laws of India. The age of the female needs to be between 25-50 years and that of the male need to be 26-55 years. Also, another major condition is that they shouldn’t be having any other adopted or conceived child through surrogacy or naturally.

The mother taking the initiative that is the surrogate mother needs to be between the age of 35-45 years. A woman can only be a surrogate mother once in her entire lifetime.

The National/State Assisted Reproductive Technology and Surrogacy Board must give a ‘Certificate of Essentiality/Infertility’ to an intended couple who has a medical need for surrogacy.

The surrogate mother must be enlightened of all known negative effects and after-effects of the operation. In addition, the surrogate mother must provide written informed permission in the language she be aware of.

According to this Bill, there would be a Registry being inducting called the National Assisted Reproductive Technology that would handle the registration of the clinic providing the surrogacy treatment.

On the authority to this Act, any couple who take hold of a baby through commercial surrogacy shall be held liable to pay a fine of up to 50,000 rupees as well as imprisonment of 5 years. furthermore, in case the same offense is committed multiple times, the fine shall go up to 1 lakh and the prison time to 10 years. Any individual, organization, or clinic considered to be involved in the exploitation of surrogate mothers or children born via surrogacy faces a maximum penalty of ten years in jail and a fine of Rs ten lakhs.

JUDICIAL PERSPECTIVE AROUND SURROGACY IN INDIA

  1. Baby Manjhi Yamada v. Union of India (2008)

Here, in the matter of a Japanese couple came to India to have a baby through surrogacy. Now, they recruit a woman from Gujrat where this practice of surrogate mother was well known and thus the woman was the surrogate mother. Some marital problems emerge between the couples and they got divorced. Now, the father of the child hope for custody of the child who was a girl. In India, a single father not able adopt a girl child. In this case, the Supreme Court provide the rights to the grandmother of the child. The Supreme Court realized the need for regulated law for surrogacy.

In this matter, a German couple, the intended parents appointed a surrogate mother who gave birth to twins. This German couple worked in the United Kingdom, and their twins now need an Indian passport to travel. The passport officials denied to issue passports to the twins since they did not have citizenship because the process was being litigated in the court. There were no specific laws governing surrogacy in Germany. The children were granted departure permission for instance permission for them to leave the country, by the Supreme Court, and German authorities allowed them to adopt the children and fight for their rights.

CONCLUSION

At last, I want to conclude that, The surrogacy rates in India are indeed higher, and it is disheartening that numerous orphaned children are being deprived of a loving family and a nurturing environment due to the strong desire for a biological child. Moreover, the adoption process, particularly for non-Hindu individuals, is fraught with challenges due to the stringent terms and conditions stipulated by the Hindu Adoption and Maintenance Act of 1956. The recent amendment Bill of 2019, which exclusively supports altruistic surrogacy, unfortunately, contains certain loopholes that may adversely affect the financial prospects of economically disadvantaged women. Additionally, the rights of surrogate women and children require stronger protection, and it is imperative that the law be more inclusive, addressing the concerns of LGBTQIA+ individuals. In summary, there is a pressing need to amend the legislation to establish a more comprehensive and equitable system that upholds the rights of all parties involved.

REFERENCE

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