“Rights And Laws for Surrogate Mother-in India” By – Sayalee Kulkarni
“Rights And Laws for Surrogate
Mother-in India”
Authored By – Sayalee Kulkarni
LLM 2nd Year
Of Modern Law College, Pune
"There is nothing more beautiful than someone who goes out of their way to make life beautiful for others."
Abstract:
Surrogacy is an important process for the couples, who are not able to
have the vouchsafed wonderful capacity
of being parents, but due to increasing number of the surrogacy cases in the
country leads to development of the commercialization of surrogacy which
primarily affects the surrogate mother
as it leads to the
exploitation of the surrogate mother.
The positive aspect of the surrogacy process brings happiness to the couples who are infertile but contrary to this the negative aspects is the cause of many legal, social ethical and moral issues in society of the country like India. Further the article describes more about the development in the field of the surrogacy process and how the governments totally ban the commercialization of the surrogacy and tries a lot to perform only altruistic form of surrogacy.
Table of Contents:
·
Introduction
·
Concept of Surrogacy
·
Definition of Surrogacy
·
History of surrogacy
·
Conclusion
·
Introduction:
Nature has bestowed the beautiful capacity to procreate a life within
woman and every woman cherishes the
experience of motherhood. But, unfortunately some women due to certain physiological conditions could not give
birth to their own off-spring. The urge of motherhood leads them to seek alternative solutions like Artificial
Reproductive Technology (ART), In-Vitro Fertilization
(IVF), Intra-Uterine Injections (IUI), etc. infusing hope into many infertile
couples, who long to have a child
of their own. With advances in medical sciences and technology, particularly in assisted reproductive
techniques which have come in with techniques like donor insemination, embryo transfer methods, etc. revolutionizing the
reproductive environment such methods
such as „surrogacy? are also gaining popularity for varied reasons. As commonly understood, a surrogate mother is one who
is hired to bear a child that she turns over at birth to her employer.
Right to reproduce their young one is untaught right of an every individual. Parenthood
is a life altering and
most permanently rewarding experience.
Concept of Surrogacy:
The word “surrogate” has been derived from
the Latin word “surrogatus” which
means “appointed to act in the place
of”. The method of Surrogacy requires a woman who consents to carry the baby and go through gestation
for it. After the child is born, it is then handed over to the couple who sought it. The role of the
woman carrying it is merely that of a gestational carrier. “Surrogacy is a well-known method of
reproduction whereby a woman agrees to become
pregnant for the purpose of gestating and giving birth to a child.
However, she will not raise the child but hand it over to the contracted
party.
Surrogacy in a country like India has strengthen a new level of advancement in the field of scientific development in which a mother of another womb help another mother to help her in being a mother who by any reason not able to have child.
Definition of Surrogacy:
According to Black’s Law Dictionary, Surrogacy
is an agreement where a woman
agrees to be artificially inseminated to carry with the semen of
another woman?s husband.
According to The new Encyclopaedia Britannica surrogacy define as – Surrogate motherhood as the
practise in which a woman bears a child for the other couple to produce
children in the usual way.
In Medical parlance –
the term surrogacy means using of a substitute in a place of the natural
mother.
According to Assisted Reproductive Technology Bill surrogacy is defined
as an agreement in which a woman
agrees to a pregnancy, achieved through assisted reproductive technology, in which neither
of the gametes belong to her
or to her husband, with the intention to carry it to the term
and hand over the child
to the person or persons for whom she is
acting as a surrogate.
History of Surrogacy in India:
According to the Hindu mythology it also offers
instances of surrogacy shows the secrecy due
to which practise of surrogacy still surround us. In Bhagavata Purana, Vishnu
ji heard Vasude?s prayers
begging Kansa not to kill all sons being born. Vishnu heard these prayers
and had an embryo from
Devika?s womb transferred to the womb of Rohini, the other wife of the vasudev. Rohini the give birth to the baby
Balaram, brother of Krishna and secretly raised the child while Vasudev and Devki
told Kansa that the child was born dead.
The History of surrogacy also belonged to the
Mahabharata, as in Mahabharata Gandhari delivered
a semi solid material on the place of delivering a child, Mahairishi Vyas
further divided that semi solid
material into 100 pieces and planted them in different pans. Thus the 100 Kauravas
were born.
India?s First IVF baby and world second baby Kanupriya
was born 67 days later on 3rd of October 1978.The
baby Kanupriya is the result
of the efforts made by Dr. Subhas Mukherjee and hid
two mates in Kolkata. The Birth of this first IVF Indian baby was a part of
tremendous controversy.
Commercialisation of surrogacy arrangement in India:
The
commerce of a child is a thing that can be hard to imagine as the child is
symbol of the love not of the money
and having a child is a perception away from the concept of marketing
activities. But surrogacy has become
a part of the commercial business in a country like India. This commercialisation of surrogacy has now become
a political debate
for the Indian
society. The market
of surrogacy is now becoming very large and growing very rapidly. There
are “N” numbers potential parents in a country like India
desire to hire other women to bear their child.
The concept of surrogacy has revolved
around an ordinary biotic function of the body of a woman into a commercial contract and hence
the surrogate services
are now even publicized.
Surrogates
are being enlisted and the operating agencies make huge profits from them. The commercialization of surrogacy is nothing but the
giving rise to the new problem
of selling child and setting
up breeding farms which may turn women into baby producers.
After a critical observation in India the data given
by the National ART (artificial reproductive
technique) Registry of India, there is jump of 300 percent cases in the year
2005 with reference to the cases
from the year 2004 i.e. 50 cases in 2004 to nearly 160 cases in year 2005.
According to the Human Organs Act
1994, it bans the trade
of the human organ as a part of commercial business.
Indian law
associated with surrogacy
In
the year 2002 commercial surrogacy was legalised by the India seeing this
immense growth of surrogacy in India
leads to the growth of the many commercial surrogacy firm who claims to have the forte in the surrogacy law and
assisting the foreigners who came India in search of mother womb as a
rent. The 228th report of the Law Commission
of India has recommended to prohibit
the process of commercial surrogacy and enacted the
suitable legislation which allows performing altruistic surgery which is
ethical.
Since there was a
lack of appropriate regulatory measures,
the surrogacy business, or the baby-making business- as it is commonly
referred to, was thriving in India prior to the introduction of the Act.
Hospitals had made it into
a booming business, worth
$2.3Billion/annum.
In the world of the diverse jurisdiction the legal approach to the
process of surrogacy differs from one
jurisdiction to another jurisdiction. The international motion to the surrogacy
has been differentiated in three
major approaches they are:
1. Free Market
2. Regulated
3. Prohibited (forbid)
Many jurisdiction of the world completely interdict the process of
surrogacy as they proclaim commercial
surrogacy to be a criminal offence in their respective jurisdiction on the contrary some jurisdiction permits process of
surrogacy but only to the some extent or we can say that only on the grounds of altruism (selflessness). In the world
only country India neither completely interdicts
the surrogacy nor synchronizes the process of surrogacy, the reason behind this
is that In India the surrogacy is not
directly proclaimed unenforceable by the law so it is considered to be valid
and enforceable.
The assisted reproductive technology bill 2008 was drafted by the Indian
council of medical research to
sanction and regularize different form of reproductive technologies including
the process of commercial surrogacy. The law commission of India in its 228th report rationalize that
why there is a need of the surrogacy in India.
According to the provision ART (Assisted Reproductive Technology) bill
2013 no women of the age less than
21 years and more than 35 years can act as the surrogate mother. This bill
leads to put condition on the foreign
couples who are taking womb at rent which was first time by this ART bill 2013. The compensation for the
surrogacy as per the guidelines by the ART bill 2013 draft will be the private negotiation between the surrogate
mother and the commissioning couples.
The ART bill 2013 leads to disqualify homosexual couples, foreign single
individuals and the couple in live in relationship from having the child through
the surrogate mother in India.
Case laws related to surrogacy in India
1. In Baby Manji Yamada’s case, in this
particular case the Japanese couple entered into a contract with an Indian woman to be the surrogate mother for
their child. After this Baby Manji Yamada?s
was born to the Indian
surrogate mother. Further
the commissioning father
Mr.Yamada tries to take his child to Japan for which he applies for visa to
Japan to which the embassy of Japan
in India denied as the Japan civil code did not grant the surrogate child. After which Mr. Yamada
tried to file for Indian visa which requires a
birth certificate an on birth certificate there is need of the name of
the Father and Mother of the child,
but in this case Mr. Yamada was the genetic father of the baby Manji but ambiguity arises in the case of the mother
name as there are three mothers for that child- The commissioning mother,the egg donor and the surrogate mother
; seeing this authorities refuses to
give visa to child Manji as the legal mother was not certain. In the end the Apex court of India had to be
interceding and the child Manji was allowed to
leave the country
with her grandmother.
2. After the
case of Manji the Supreme Court of India in 2008 held that surrogacy is permissible in India due to which
it subsequently increase
the international confidence in going in for
the surrogacy in India.
•
The German
Couple Case in this case a childless German couple has twins through the surrogate mother with the help
of Anand Infertility Clinic Gujarat. Since the German
laws did not recognise the surrogacy
as a means of parenthood, due to this twins are not treated to be the German citizen so
the citizen so the German
commissioning parents to avoid the foreseeable hurdle of the Immigration laws they approach to the High
court of the Gujarat for authorizing their
surrogate twin with the Indian Passport, on which Gujarat High Court held that the child who born through the
surrogate mother will carry the name of the surrogate
mother but not of the Biological mother and the child should be authorize with the Indian Passport and
certifies him as the Indian citizen and the surrogate mother
in turn had to give the child to the German couples
in adoption.
•
In a another
case the Israel
gay couple Yonatan and Omer Gher became
parents in India in year 2008 through help of a
surrogate mother who belonged from Mumbai
in a infertility clinic of the Bandra. After which both the gay couples have vouchsafed with a baby as the Israel
laws does not allows the same sex marriage
and the surrogate child so they came India for their child. After the child was born the gay couple left
to the Israel in the year 2008.
The Important provisions of the Surrogacy Bill
On the other hand, The surrogacy bill will only permit
"ethical" and "altruistic" surrogacy which will be free of any monetary transaction
or payment to surrogates. In altruistic surrogacy, other than medical bills and insurance during the pregnancy, the
surrogate mother receives no monetary compensation.
Women's rights campaigners claim that this clause will deprive poor women of a way to
monetize their services as surrogates if they are unable to find
other work.
The Surrogacy (Regulation) Act was enacted on 25 December 2021 after it
got the assent of President Shri
Ramnath Kovind. In the Act, commercial surrogacy is termed as the buying and selling of human embryos i.e., commercial
surrogacy is banned in the whole country. The Act created new
regulations for surrogacy
and a single man/woman can't opt for surrogacy. The Act mandates everyone to not print or air
advertisements of commercial surrogacy.
The Act allows Altruistic surrogacy as an act of generosity between close
relatives with a contract between
them for the same. The intended couple must be 25 to 35 years old. The act made mandatory for the eligibility certificate and the proof
on infertility of either of
the husband or the wife. The
couple must get the order regarding the parentage from the Magistrate of first- class or
above.
A married woman having a child of her own can act as the intending woman.
The Act provided that the surrogate mother can withdraw her consent anytime
before the embryo is implanted. And she should
be informed about the risks and consequences wholly before
she chooses to accept.
The Act also mandates the couple to provide insurance for the mother and
child. It also mentioned that the couple
should not abandon the baby born out
of the surrogacy procedure. If anyone
including the intended couple forces the woman to terminate, she can report to
the appropriate authority.
Chapter 4 of the Act provides for the Registration of Surrogacy Clinics.
The clinic must have the Certificate of
Registration to function. For the purpose of registration of surrogacy clinics,
a registry was established called the
National Assisted Reproductive Technology and Surrogacy Registry.
A board called National Assisted Reproductive Technology and Surrogacy
Board was constituted and the board
consists of 23 members who are experts. Every decision and order of the Board must be signed and authenticated by the Chairperson. Every offence committed shall be cognizable, non-bailable, and
non-compoundable.
Under section 46 of the Act, the clinic should
maintain all the records,
forms, consent reports, letters,
and all other documents regarding surrogacy for a period of twenty-five years.
If any clinic has pending criminal
proceedings against it, it shall maintain the same till the final proceeding.
The Eligibility Criteria:
National Surrogacy
Board
-
Offences:
Punishments
Under the Act, any person who:
1.
Abandons a child born out of surrogacy,
2.
Conducts sex selection,
3. Undertake or run an unauthorized racket or group to perform
activities related to surrogacy
4.
Exploits surrogate mother or the child
5.
Imports
or helps to import human embryos
6.
Publish, distribute or advertise any information about
commercial surrogacy,
Shall
be punishable with:
1.
Imprisonment of a term which may extend to 10 years
and
2.
A fine which may extend to ten lakh
rupees.
§
Impact of the Bill on Surrogacy
Contracts
-
Since the Bill has introduced stringent
regulatory mechanisms, it is pertinent to analyse the issue of validity of surrogacy contracts. Surrogacy
contracts play a vital role in the process of surrogacy.
-
In the absence of a surrogacy contract,
it becomes very difficult to regulate the process since it could lead to a lot of legal hassles. The major purpose
of surrogacy contracts is to protect the surrogate
mothers, the intending parent(s) and the child equally.
The most conflicting issue raised on
surrogacy contracts is that whether such contracts amount to baby selling. The 2020 Bill has put an end to all such
speculations by seeking to put a
blanket ban on commercial surrogacy.
Another question which arises is whether
surrogacy contracts are forbidden by any law or opposed to public policy. In certain situations, courts can refuse to enforce a contract
on considerations of public
policy.
Further, it cannot be claimed that the object
of surrogacy contracts is unlawful in lieu of
section 24 of Indian Contracts Act[12] since
section 35 of the 2020 Bill strictly prohibits
commercial surrogacy, exploitation of surrogate mothers
and children born through surrogacy. It also penalises the
same. Therefore, the 2020 Bill has ensured that the validity of surrogacy contracts remains intact. Moreover,
regulatory bodies have been assigned to implement the safeguards.
Conclusion:
Surrogacy in the world is not a new concept of having a
child but the process of the surrogacy
had been practised from ancient times.
The method of the surrogacy is not only limited
to the couples who are infertile or not able to have a child without any
medical deformity but the surrogacy
is also practised by anyone who wishes to have a child. Due to the rising
number of surrogacy process it influences
the country or the world in raising the debates on the legal, ethical, religious and the moral issues
all over the world. The increment in the process of commercial surrogacy leads to the violation of the human rights
but commercial surrogacy safeguards the reproductive
prerogative of the infertile women.
As India is becoming a booming industry for the process
of the surrogacy due to which it brought certain
complexities and many social, ethical, and legal issues related to surrogacy due to which
the requirement for a particular legislation being needed.
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