Open Access Research Article
"SURROGACY IN INDIA:A DREAM FOR MOTHERHOOD OR A PAVE TO COMMERCIAL EXPLOITATION"-SHOBITHA REDDY PANYAM BY M. SAI DEEKSHITHA
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Article Details
“SURROGACY
IN INDIA: A DREAM FOR MOTHERHOOD OR A PAVE TO COMMERCIAL EXPLOITATION”
AUTHORED BY –
SHOBITHA REDDY PANYAM
& M. SAI DEEKSHITHA
ABSTRACT
In India, motherhood is valued and a
dream for many women because of the strong cultural pressure on the couple to
bear and rear children. However, due to the high incidence of infertility
cases, it is difficult to conceive. So, surrogacy is viewed as a means of completing
the family and finding happiness.
As there were no barriers for strict
laws and regulations in India in the 1990s, surrogacy was widespread there.
Because of this reason, they were constrained, deprived of essentials,
subjected to human trafficking, threatened, and many more. They focused more on
the impoverished and illiterate surrogates. There have been instances where
multiple eggs have been implanted to boost the likelihood of becoming pregnant
for saving money and time.
The Surrogacy (Regulation) Act,2021
focus to combat the unethical and legal challenges, facilitate the needy
infertile couple, protects the child born out of surrogacy, prohibits
commercial surrogacy and allows altruistic surrogacy. Although the motive
behind the present Act is to regulate surrogacy and prohibit commercial
exploitation, some provisions of the Act are in conflict with the fundamental
rights guaranteed under the Constitution of India such as right to equality ,
right to privacy and right to life etc.
This Article includes special
emphasis on the legal provisions of ‘The Surrogacy (Regulation)
Act, 2021’, status of Commercial surrogacy, lacunas and constitutionality
of the Act.
INTRODUCTION
The term "surrogate"
derives from the Latin word “Subrogare” ( to substitute) which means
"appointed to act in the place of ”[1].
In the present context a woman is referred to as a "surrogate
mother", if she becomes pregnant and gives birth to a child with the
purpose of giving the child to another individual or couple, often known as the
"intended" or "commissioning" parents. It refers to a
replacement, particularly a person substituting in for another in a particular
position.
When pregnancy is physically
impossible, when the risks to the intended mother make it unsafe, or when a
single guy or a male couple wants to have a family, people may look into
surrogacy arrangements. One of the various assisted reproductive technologies
is believed to be surrogacy.
Commercial Surrogacy became lawful in
2002 when the Indian Council of Medical Research (ICMR) published guidelines
for the procedure[2], but no
laws were passed to support it. Due to non-stringent regulations and no
effective enforcement, the surrogacy industry flourished as a result. India has
always been a popular destination for people seeking surrogacy children. Due to
the low services’ cost and easy accessibility, commissioning parents travelling
from many other nations are also able to utilize the procedure.
The Surrogacy Act 2021, which was
recently passed, regulates surrogacy in India. This law established stringent
eligibility and ineligibility requirements for surrogate couple and
surrogate mother, distinguished explicitly between altruistic and commercial
surrogacy, and permitted only altruistic surrogacy to married couples
exclusively on medical reasons.
HISTORICAL
INSIGHTS ABOUT SURROGACY
Surrogacy is not a new phenomenon.
For thousands of years, women have designated others to give birth on their
behalf and even when referring to the ancient scriptures it can be found that,
a woman bear a child for a couple to nurture, typically with the male partner
serving as the biological father.
It may not come as surprise that
surrogacy was practiced in antiquity. Some of the insights of mythology that
were practiced, respected and socially accepted are mentioned below:
Ø During the Biblical Times, the first
mention of surrogacy can be found in “The Book of Genesis”. The first book of
both the Hebrew and Christian Old Testaments is the Book of Genesis. This book
mentions the story of Sarah and Abraham, despite being married, they were
unable to bear children of their own. As a result, Sarah asked her servant
Hagar to give birth to Abraham's child. In this instance of traditional
surrogacy, the surrogate uses her own egg in the child she is carrying for the
intending parents. Although Sarah and Abraham were not the child's biological
parents per se, they both claimed ownership of the infant[3].
Ø Even in Hindu mythology, the
Mahabharata describes "Surrogate Fatherhood," a practice that was
formerly socially acceptable. Queen Satyavati asks her son Ved Vyasa to cohabit
with her widowed daughters-in-law Ambika and Ambalika so they can have children
in order to preserve her dynasty[4].
Ø Balarama, the eighth child of
Vasudeva and Devaki, was conceived through surrogacy by Rohini, Vasudeva's
first wife. In this instance, surrogacy was required because Devaki's brother
Kamsa had sworn to kill any child conceived in her womb[5].
DEFINITION
OF SURROGACY
Surrogacy is defined in section 2(zd)
of Surrogacy (Regulation) Act, 2021. It means a
practice whereby one woman bears and give birth to a child for an intending
couple with the intention of handling over such child to the intending couple
after the birth[6].
The two types of Surrogacies that are
mentioned under the Surrogacy (Regulation) Act, 2021 are :
1. Altruistic surrogacy –
Altruistic surrogacy is defined in
section 2(b) of the Surrogacy (Regulation) Act, 2021. This is a surrogacy in
which the surrogate mother, her dependents, or her representative receives no
fees, compensation, expenses, or other financial benefits of any kind aside
from the medical costs she incurs and the insurance coverage for the surrogate
mother.
2. Commercial surrogacy –
Commercial surrogacy is defined in
section 2 (g) of Surrogacy (Regulation) Act, 2021. It refers to the
commercialization of surrogacy services or procedures or its component services
or component procedures, such as selling
or buying human embryos or gametes or selling or buying or trading the
services of surrogate motherhood by giving payment, reward, benefit, fees,
remuneration, or financial incentive in cash or kind to the surrogate mother or
her dependents or her representative, except the medical expenses and such
other prescribed expenses incurred on the surrogate mother and the insurance
coverage for the surrogate mother[7].
Apart from the above mentioned, the
other types of surrogacies that are recognized in India are:
I.
Traditional Surrogacy:
Traditional surrogacy is also known
as straight method surrogacy because in this type of surrogacy the surrogate is
carrying her own biological child . The child is conceived with an intent to be raised by the
intending parents. Some of the methods used for this type of surrogacy are :
i.
Impregnation
by IUI ( intrauterine insemination)
ii.
Artificial
insemination
II.
Gestational Surrogacy:
This type of surrogacy is also known
as host method surrogacy wherein the surrogate will not be the biological
mother as it includes a process called ‘embryo transfer’ unlike traditional
surrogacy. Hence the actual mother is the biological mother and the object
behind this type of surrogacy is to gestate the child. On the other hand, the
surrogate mother is referred to be gestational carrier[9].
COMMERCIAL
SURROGACY IN INDIA
The Law Commission of India in its
208th report recommended for prohibiting commercial surrogacy and that there is
an urgent need to enact a law to regulate the commercial surrogacy. The main
reasons behind this recommendation were larger scale of exploitation of the
surrogate mothers who may have been coerced to become surrogate due to lack of
education and poverty ; with a motive of availability of getting cheap labor
there was prevalent use of surrogacy by foreigners and lastly there was lack of
proper & effective legal framework.
Earlier the only guide for surrogacy
was the National Guidelines for Accreditation, Supervision and Regulation of
ART clinics in India, 2005.
In Baby Manji Yamada V. Union
of India[10], a
Japanese couple, Dr. Ikufumi Yamada and his wife, decided they wanted a child
and signed a surrogacy agreement with an Indian lady in Anand, the Gujarati
city that pioneered the surrogacy industry. The father insisted on having
custody of the child despite the couple's
marital . Under Indian Law, a single father cannot adopt a girl child. So he
sent his mother instead and a petition was filed before the Supreme Court. The
Government seemed to be helpless in this matter as there were no laws governing
the effect of surrogacy. The writ petition challenged
the legality of surrogacy and criticized it as
fostering an illegal industry in India and stressed the need for enactment of a
surrogacy law.
This was the first case wherein a
decision linked to surrogacy was made by the Apex Court and it marked the
importance of developing surrogacy regulation laws in India[11].
On the basis of Apex court’s
directions, the Legislature had drafted The Artificial Reproductive Technology
(ART), Bill, 2008 . This is the first time in India towards regulating the
surrogacy industry which was subsequently amended in 2010, 2013,2014, 2016
& 2019.
One of the biggest changes in the new
law is a ban on “commercial surrogacy,” only “altruistic surrogacy” is legal.
This means a surrogate can only be paid for her medical expenses, insurance
cover for 36 months to cover post delivery complications.
Although there are two types of
surrogacies, section 3(2) of The Surrogacy (Regulation) Act, 2021 clearly
prohibits and mentions that no surrogacy clinics, pediatrician, gynecologist,
registered medical practioner or any person shall conduct, offer, undertake or
avail commercial surrogacy in any form.
Any intending couple or intending
woman who seeks to aid surrogacy clinic or laboratory etc. for not following
altruistic surrogacy and or conducting surrogacy for commercial purposes shall
be punishable for a term extend to five years and a fine upto five lakh rupees and for the
subsequent offence punishable upto ten years and fine upto ten lakh rupees[12].
NECESSITY OF SURROGACY:
Due to the surge in infertility, many
women were unable to conceive for a variety of reasons, making surrogacy
essential. In Suchita Srivastava v. Chandigarh Administration[13],
the Supreme Court held that the right to choose one's reproductive options
falls under the protection of personal liberty provided under Article 21. The right of women to privacy, dignity, and physical integrity includes the right to carry a
pregnancy to full term, whether or not to give birth.
REGULATION OF SURROGACY CLINICS:
Section 3 of the Surrogacy
(Regulation) Act, 2021 clearly prohibits that no surrogacy clinic,
pediatrician, gynecologist , embryologist, registered medical practitioner or any person shall act in any form as
mentioned below:
I.
Should
not conduct or associate with or help in any in any manner, for conducting
surrogacy and procedures unless registered.
II.
Shall
not conduct, offer, undertake, promote or associate with or avail commercial
surrogacy in any form.
III.
Shall
not take services of any person, whether honorary basis or on payment who does
not possess such qualification.
IV.
Shall
not aid in conducting himself or through any other person surrogacy or
surrogacy procedures at a place other than registered place.
V.
Should
not promote, publish or advertise or cause to be promoted or advertised which
aims to induce a woman to act as surrogate mother, aim at promoting surrogacy,
aim at seeking to act as surrogate mother, advertises commercial surrogacy in
print or electronic media.
VI.
No
person including the intending parents shall conduct or cause abortion without
written consent of surrogate mother and after the compliance of appropriate
authority as per Medical Termination of Pregnancy Act, 1971.
VII.
No
person shall store human embryo or gamete for the purpose of surrogacy. Unless
the storage is for medical purposes such as sperm bank, IVF and medical
research.
VIII.
No
person shall in any form conduct or cause to be conducted sex selection for
surrogacy[14].
CIRCUMSTANCES UNDER WHICH SURROGACY
PROCEDURE CAN BE PERFORMED:
Surrogacy is not permitted under any
other situations than those listed under Sec 4(ii) of the Act -
a. When an intending couple has a
medical indication necessitating gestational surrogacy. The couple of Indian
origin and intending woman shall obtain certificate of recommendation from the
board. In the gestational surrogacy there will be implantation of embryo inside the womb of surrogate mother of the
intending couple and the child is no way related to surrogate mother.
b. When it is only for the altruistic
surrogacy.
c. When it is not for commercial
surrogacy.
d. When it is not for sale of children ,
prostitution and exploitation .
e. Any other disease that is specified
by the board[15].
THE DIRECTOR OR IN-CHARGE AND PERSON
QUALIFIED CAN CONDUCT SURROGACY WHEN THE BELOW ARE SATISFIED:
1) a certificate of a medical indication in favor
of either or both members of the intending couple or intending woman
necessitating gestational surrogacy from a District Medical Board.
2) An order passed by the first class
Magistrate on an application by the intending couple or the intending woman and
surrogate mother concerning the parentage and custody of the child.
3) Additionally, an insurance coverage
of the amount as prescribed by the surrogate mother for period of 36 months
covering postpartum delivery complications[16].
ELIGIBILITY FOR SURROGATE MOTHERS:
i.
A
Woman who is not married and does not have a child of her own and is between
the age of 25 to 35 years on the day of implantation can be a surrogate mother
or help in donating her oocyte.
ii.
No
woman shall provide her own gametes.
iii.
A
woman can be a surrogate mother only once in her lifetime.
iv.
The
woman should have a certificate of medical and psychological fitness for
surrogacy.
When all the above conditions are
satisfied then the woman is eligible to get the certificate to be the surrogate
mother[17].
Additionally, the intending woman or intending parents shall approach the
appropriate authority with the willing woman who agrees to be a surrogate
mother.
No organization, clinic or person
etc. shall force the surrogate mother to abort except to the conditions
prescribed by the board[18].
INTENDING PARENTS:
The below conditions must be
satisfied for the eligibility of the intending couples by the appropriate
authority:
i.
The
intending female must be between age of 26 to 55 years and intending parents
must be between the age of 23 to 50 years.
ii.
The
intending couple can opt for surrogacy when they don’t have child neither
biologically nor through adoption. Provided if the appropriate authority
approves with medical certificate from district medical board that the child of
the intending couple suffer with physical or mental illness , which cannot be permanently cured then they are
legally allowed to opt for surrogacy.
iii.
And
any other conditions as specified by regulations[19].
PROCEDURAL REQUIREMENTS:
Section 6 of the Surrogacy
(Regulation) Act, 2021 clearly mentions that the below should be followed for
seeking or conducting surrogacy:
i.
The
surrogate mother shall be explained about the known side effects and the
procedures.
ii.
The
surrogate mother should give written informed consent as prescribed from the
language which she understands.
iii.
The
surrogate mother shall an option to withdraw her consent begore the
implantation of human embryo in her womb.
RIGHTS OF THE SURROGATE CHILD:
I.
A
child born out of the procedure of surrogacy shall be deemed to be the
biological child.
II.
Child
born out of the procedure of surrogacy shall be entitled to all rights and
privilege’s available to natural child.
III.
The
child should not be abandoned whether within or outside India for whatsoever
reasons such as defects developing subsequently, sex of child, or more than one
child born etc.[20].
REGULATORY AUTHORITY FOR SURROGACY IN
INDIA:
A Registry is established called as
National Assisted Reproductive Technology[21]
and Surrogacy Registry for the purpose of registering the surrogacy clinics,
enforce standards, investigate complaints, recommend about the modifications,
grant or reject application etc.
CONSTITUTIONAL
VALIDITY OF THE ACT
Right to make reproductive choices
falls under the personal liberty guaranteed under Article 21 and this right
includes women’s entitlement to carry a pregnancy to its full term, whether to
give birth or not, these rights form part of women’s right to privacy, dignity
and bodily integrity[22].
The Surrogacy (Regulation) Act, 2021
further excludes other people based on their nationality, sexual orientation,
marital status, and age, and limits and conditions surrogacy to married Indian
couples alone. This criteria does not pass the test of the reasonable
classification under Art 14 of the Constitution.
In Devika Biswas v. Union of
India[23], the
Apex Court ruled that the "Right to Life" guaranteed by Article 21 of
the Indian Constitution included the "Right to Reproduction" as a
fundamental aspect. The right to reproduce involves the right to conceive,
carry, give birth, and raise children. Therefore, restricting surrogacy to
exclusively heterosexual couples in a certain age range results in a partial
imbalance. Communities that are fully denied the
freedom to have reproductive options include single persons, elderly couples,
and couples that identify as LGBTQ+. This is potentially a breach of both
Article 14 and Article 21 of the Indian Constitution
In the case of KS Puttaswamy
& Anr v. Union of India[24],
the SC held that obtaining a certificate of infertility from the district
medical board is in violation to “right to privacy” and has been recognized as
a fundamental right to be protected under Art 21 of the constitution.
The surrogacy (Regulation) Act,2021
clearly defines who can be the intending couple and the intending women as:
1) Intending couple: Section 2(r) of the
Act defines intending couple as a couple who have a medical indication
necessitating gestational surrogacy and who intend to become parents through
surrogacy and the married couple should be between the age of 23 to 50 for
females and 26 to 55 for males. This section is violating the fundamental
rights as guaranteed under the constitution as mentioned below:
a) Live in Relationship
The legal status of live-in
relationships in India has been evolved and determined by the Supreme Court in
various judgments. In the case of S.P.S. Balasubramanian v. Suruthaya [25]
the court held that if a man and woman cohabitating under the same room for a
number of years, there will be a presumption of marriage under section 114 of
Indian Evidence Act and the children born under this relationship will be
treated legitimate. Even after the change in time and acceptance among the
society with the evolution of law still the couple in live-in relationships are
not included under the definition of section 2(r) of the Act. As per Sec 2(r)
of the Act, the intending couple who is intending to become parents by
surrogacy is restricted to only the married couple and this restrictive
meaning for the term ‘intending couple’ is violating the rights of couple in
live-in relationship.
Article 14 of the Constitution of
India guarantees fundamental right to equality.
As the definition provided under Sec 2(r) of the Act is limited to the married couple per se, it
does not stand the test of reasonable classification provided under the Art 14.
Hence the Fundamental right of
equality provided under Art 14 is being violated to the couple in Live-in
relationship.
Article 21 of the Indian Constitution
guarantees right to life and personal liberty, this right includes the right to
reproductive autonomy either naturally or through surrogacy.
When the Supreme court held that
live-in relationships are not illegal in the eyes of law and the children out
of such relationship are treated as legitimate then why are they not allowed to
opt for surrogacy?
b) LGBTQ
Even after repeated judgements from
the Naz foundation v. Government of NCT Delhi[26]
to Puttaswamy case that the right to equality, right to life, right to privacy are the fundamental
rights guaranteed to every individual under Art 14, 21 of the constitution of
India. Even till date the LQBTQ committee is being subjected to discrimination
as homosexuals, a separate class. In the case of Nalsa v. Union of India[27],
Supreme court clearly held that the rights provided under Article 14 are the
rights that are to be enjoyed by any person, as per Article 15 and 16, there
shouldn’t be any gender-based discrimination, as per article 21, Privacy,
gender identity and integrity are protected where the right to life includes
right to live with dignity which is inclusive of right to choose gender
identity. But still LGBTQ are not yet included in the ambit of section 2(r) of
the act and this is in clear violation to Article 14, 15, 16 and 21 of the
constitution. Hence, the question arises as to why aren’t LGBTQ allowed to opt
for surrogacy?
2) Intending woman: an intending woman
is defined in section 2(s) of the Act as a widow or divorcee who is between 35
to 45 years of age and intends to avail surrogacy. This section is violating
the fundamental rights guaranteed under the Constitution of India as mentioned
below:
a) Unmarried Individuals
As per the eligibility criteria of
the prospective adoptive parents by the central Adoption resource authority
(CARA), regulated by the Ministry of Child and Resource Development, a single
female can adopt a child of any gender and a single male is eligible to adopt a
male child. Then why are they excluded from the ‘intended persons’ to opt for
surrogacy? This fails the test of
reasonable classification and is violative of Article 14, 15 and 21 of the
constitution.
b) Divorced Husband
According to the section 2(s) of the
Surrogacy (Regulation) Act, 2021, intending woman is defined as a widow or
divorcee who is between 35 to 45 years of age. But this act completely excludes
the divorced husband. When a divorcee and a widow woman can avail surrogacy
then why should a divorced man be excluded?
This is in clear violation to Article 14, 15 and 21 of the constitution.
c) Widower
A widow between the age of 35 to 45
years can opt for surrogacy as per section 2(s) of the Surrogacy (Regulation)
Act,2021 but there was no mention of widower, why is a widower excluded from
the purview of surrogacy in totality? This fails the test of reasonable
classification and is violative of Article 14, 15 and 21 of the constitution.
RECOMMENDATIONS:
i.
The
Surrogacy statute restricts surrogacy to married couples and to that extent,
excludes the members of the LGBTQ community, live-in couples, and single,
divorced, or widowed parents. Since the right to reproductive autonomy and
parenting are guaranteed by the right to life as stated in article 21 of the
Constitution, everyone has this right and thus should be permitted to choose
surrogacy. Accordingly, an amendment with respect to definition of intending
parents/intending persons is much required.
ii.
The
Surrogacy statute also limits the autonomy of married couples and potential
surrogates to a huge extent, by means of stringent conditions and requirements
of eligibility certificates. The heavy onus laying prerequisites such as
childlessness, five years of infertility for intending parents, the surrogate
being a close relative, amongst others, are prone to criticisms. Although the
stringent provisions play a crucial role in effective implementation of the Act
it should not be in such manner that the objectives for which the Act was
enacted goes in vain.
CONCLUSION
Having child is everyone's dream,
regardless of any gender. In India, a women's life is subjected to be
incomplete when she is not able to have child. Surrogacy is a therapeutic
option available to single women with medical issues who want to become
pregnant, to couples with specific medical challenges so they can help them
have their own genetic children, and to homosexual men who want to become
parents. Furthermore, by making surrogacy the only source of income for some
people, surrogacy opens the door for economic exploitation, which causes
excruciating physical, emotional, and psychological suffering.
Therefore, it is necessary to arrive
at a mid-way that facilitates commercial surrogacy but in a better and
sufficient regulatory manner. Accordingly, the Surrogacy Regulation Act, 2021
was enacted by the legislature to address the issue and preserve the harmony
between outlawing commercial exploitation and allowing surrogacy when it was
necessary. However, those in need including persons belonging to LGBTQ
community , single persons, unmarried couples, widowers, etc. are not included
in the Act. The lacunas in the Act conflicts with the fundamental rights thus
are in violation of Article 14, 15(1) and 21 of the constitution. Thus, the
legislature should make necessary amendments to the Act which is in compliance
with fundamental rights of citizens and reflect the changing social mores, to
fulfill the objectives of the Act.
[1] Collins,
http://www.collinsdictionary.com
[3] David J Zucker, in/Voluntary
Surrogacy in Genesis, 76/1 : 9-24, The
Asbury Journal, 01,2021
[4] NCBI,
http://www.ncbi.nlm.nih.gov.com
[9]Libertatem Magazine, http://
www.libertatem.in
[10] AIR 2009 SC 84
[11] Legal Services India,
http://www.legalservicesindia.com
[12] The Surrogacy (Regulation) Act,
2021, Sec 40, No. 47, Acts of
Parliament, 1949 (India).
[13] (2009) 9 SCC 1
[15] The Surrogacy (Regulation) Act,
2021, No. 47, Acts of Parliament, 1949
(India)
[19] The Surrogacy (Regulation) Act,
2021, Section 4(iii)( c), No. 47, Acts
of Parliament, 1949 (India)
[21]
The Surrogacy (Regulation) Act, 2021, Section 15 & 17, No. 47, Acts
of Parliament, 1949 (India)
[22] Suchita Srivastava v. Chandigarh
Administration, (2009) 9 SCC 1
[23] (2016) 10 SCC 726
[26] 160 Delhi Law Times 277
Article Information
"SURROGACY IN INDIA:A DREAM FOR MOTHERHOOD OR A PAVE TO COMMERCIAL EXPLOITATION"-SHOBITHA REDDY PANYAM BY M. SAI DEEKSHITHA
Authors: SHOBITHA REDDY PANYAM, M. SAI DEEKSHITHA
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/10/22
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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