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A CONSTITUTION’S PERSPECTIVE OF THE SURROGACY (REGULATION) ACT 2021.
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A CONSTITUTION’S PERSPECTIVE OF THE SURROGACY
(REGULATION) ACT 2021.
AUTHORED BY - BHARGAV A R
ABSTRACT
India’s
unregulated surrogacy industry is enormous, enabling Western couples to get
their baby delivered by a surrogate
mother in India. India legalised
commercial surrogacy to promote medical
tourism generating 2-3 billion dollars annually. However, the Surrogacy
(Regulation) Act 2021 passed recently
abolishes the legality of commercial surrogacy. Owing to the ban on commercial surrogacy, the law only allows
surrogacy for cases of altruism. The recent law has brought in regulation for the huge unregulated surrogacy
industry, and steps have been taken to protect
women from surrogate mothers from being exploited; however, a few gaps have
been identified with the passing of
the recent law. With the motive of preventing exploitation, the law cut off the means of livelihood for
thousands of surrogates when their only source of income was by being a surrogate. The laws are
heteronormative and prevent same-sex couples, single men, and unmarried couples from using Assisted
Reproductive Technology (ART) services which go against international standards of reproductive rights. The
paper aims to analyse the provisions of the
Surrogacy (Regulation) Act, 2021, coherent with Article 14 of the Indian
Constitution.
KEYWORDS: SURROGACY
(REGULATION) ACT 2021, COMMERCIAL SURROGACY, ALTRUISM, HETERONORMATIVE, ASSISTED
REPRODUCTIVE TECHNOLOGY
INTRODUCTION
Surrogacy is “the process where a woman agrees to carry a pregnancy that is genetically unrelated to her and her husband, intending to carry term and
hand over the child to the genetic parents
for whom she is acting as a surrogate”.[1]
Infertile couples are tremendously benefitted by fulfilling the dream of having a child through the process of
surrogacy. Apart from adoption, surrogacy
shines a light on infertile couples to give birth to and raise children having
their DNA.
Altruistic
surrogacy and Commercial Surrogacy are the two kinds of surrogacy. These two
kinds of surrogacy have their differences in the monetary
and transactional aspects
and no indifferences concerning the medical procedures followed. Altruistic surrogacy
is when the surrogate mother is only compensated for the medical expenses incurred by her during
the pregnancy. No compensation is
paid on the lines of service or favour to the surrogate mother. On the other hand, commercial surrogacy is
where the surrogate mother is compensated for carrying the pregnancy along with the medical expenses incurred. Women
involved in being mothers are paid
huge sums of money to help them sustain their living.
SURROGACY LAWS - A WORLD VIEW
Commercial surrogacy was an enormous unregulated sector in India.
Countries like the United States,
Russia, Georgia, and Ukraine have commercialised surrogacy and are strictly
regulated, unlike India, until recently.
However, a few countries like France, Germany,
Ireland, Italy, Spain,
and Portugal have been on the backlash when it comes to commercial
surrogacy. They have constituted that
a commercial surrogacy arrangement overseas would be a criminal offence in their home country
or state. Taking into view a global perspective, Surrogacy
laws vary significantly from one country to another,
and in some cases, even from one state or province to another within the
same country.
Surrogacy in the USA varies by state, as there are no federal surrogacy
laws. States like Arizona have made
surrogacy unenforceable, while states like Indiana declare surrogacy contracts
void and unenforceable. North Dakota
voids traditional surrogacy contracts but recognises gestational surrogacy agreements. In Washington,
surrogate agreements are typically permissible, but paid agreements are not. Florida and Illinois project and allow
surrogacy but with regulations.
Surrogacy
in Russia was an unregulated activity that has continued to be commercial since
2011. During the Pandemic, a large
number of babies were left stranded with their surrogate mothers due to the closing of international
borders. In December 2022, the President gave his assent to a law banning foreign citizens and stateless
people from availing of surrogacy services.
In Brazil, surrogate parenthood is legally unconstrained, and the
surrogate mother is strongly protected under the law. Surrogacy is legal in Brazil for infertile couples,
but specific requirements must be met, including the
approval of both parties. Surrogacy is allowed only among relatives; the surrogate mother must be under 50 years old
and have at least one child. Surrogacy
in Brazil is strictly altruistic, with the surrogate mother unable to receive
any financial compensation for
carrying the baby. Donors and surrogates in Brazil must be identified, and
their names must appear on the
baby's birth certificate.
Thailand's commercial surrogacy industry flourished until being banned
due to instances such as the "Baby Gammy' case and the Mitsutoki
Shigeta controversy. Since 2014, the military administration has forcibly shut down the commercial process.
Thailand made commercial surrogacy illegal in 2015. Only married heterosexual Thai couples are able to complete surrogacy
in Thailand. Any surrogate must be a sibling of one member of the couple. She must be married, have her husband's consent
for the surrogacy process, and have her own child. Any selling of ovum, sperm, or embryos is prohibited from combating
the commercial use of assisted reproductive technology.
South Africa
requires the parties to show they are suitable persons to be considered
parents.
A
surrogate is not entitled to any compensation other than medical expenditures
or income losses as a result of the
inability to work. The law prohibits running surrogacy agencies as well as sourcing
and charging commissioning parents for
finding a surrogate.[2]
Some
countries have comprehensive legal frameworks that recognise surrogacy as a
legitimate form of assisted reproduction, while others have banned
or restricted the practice. In some countries,
surrogacy is only allowed for altruistic purposes, where the surrogate mother
is not paid for her services, while
in others, commercial surrogacy is legal, where the surrogate mother receives compensation for carrying the
child. The laws surrounding surrogacy can also vary in terms of the rights and responsibilities of the surrogate
mother and the intended parents,
including issues related to parentage, custody, and citizenship. Given
the complex and often rapidly
evolving nature of international surrogacy laws, it is essential for anyone
considering surrogacy to seek legal
advice and guidance from experts in their specific location to understand their rights and obligations and to ensure
that they are operating within the legal boundaries of their jurisdiction.
SURROGACY LAWS IN INDIA
Surrogacy in India is a vast sector. Citizens from all over the world fly
to India to have their babies through
surrogacy. The cost-effectiveness of surrogacy in India is much lesser when compared to other countries. Commercial Surrogacy in India is a
big business. Surrogacy is just one of the many techniques that are available
to infertile couples to achieve their dream of
having a child. Commercial surrogacy differs from altruistic surrogacy
in terms of the amount of money paid
to the surrogate mother. While in altruistic surrogacy, the payment is
restricted only to the medical expenses
incurred by the surrogate mother,
in commercial surrogacy, the woman is paid more than mere expenses. It is
this very amount of 'something more than the medical expenses that act as bait to lure women into acting as
surrogates for potential commissioning couples.[3] To
safeguard the rights of surrogate mothers and other women considering
surrogacy, a legal framework is
required. Without clear definitions, utilizing unnecessary and emotional terms like "business" surrogacy,
"moral" surrogacy, and so on doesn't, in actuality, enhance the basic centre issue of seen double-dealing of
women. It is essential to comprehend that the money paid for surrogacy is a compensation mechanism rather than a means
of earning money.
If the surrogate views
compensation as a form of profit, the situation is entirely different. This is
an issue of understanding, and the
solution for inspiring the situation with women is by instructing them about their regenerative freedoms, consequently empowering them to
pursue informed choices. Blanket acts
only promote corrupt and unethical practices.[4]
However, in light of efforts to end the hiring of wombs in India, the Parliament has passed the
Assisted Reproductive Technology (Regulation) Act and the Surrogacy (Regulation) Act.
AN OVERVIEW
OF THE SURROGACY (REGULATION) ACT, 2021
The Surrogacy (Regulation) Act 2021 replaces the Surrogacy Regulation Act
2019 and seeks to regulate and
prohibit commercial surrogacy in India. The Act permits altruistic surrogacy,
where the surrogate mother is not
paid beyond medical expenses and insurance coverage, but only for Indian couples who are legally married and
have been proven medically unfit to carry a child. The Act also allows single
women and widows
to opt for surrogacy, subject
to certain conditions, including being a close relative of the surrogate mother. It
permits only Indian citizens to avail of surrogacy
services in the country, and foreign nationals, NRIs or PIOs (Persons of Indian
Origin) are not eligible. The Act
lays down the eligibility criteria for surrogate mothers, including that they must be a close relative of the
intending couple, between the ages of 25 and 35, and have a child of their own. The surrogate mother
cannot provide her own gametes for surrogacy, and a surrogate can only undergo surrogacy once in her lifetime. The
Act establishes the National Surrogacy
Board, State Surrogacy Boards, and the National Registry of Surrogacy, which
will oversee the regulation of
surrogacy in the country. The Board will ensure the welfare and rights of the surrogate mother and the child born
through surrogacy and monitor the implementation of the Act.
SURROGACY (REGULATION) ACT, 2021, FROM THE PERSPECTIVE OF THE CONSTITUTION OF INDIA
The Surrogacy (Regulation) Act 2021 prohibits commercial surrogacy in
India. This means that no person,
clinic, or hospital can carry out commercial surrogacy or receive payment in
exchange for arranging or
facilitating surrogacy services. The only exception to this prohibition is for altruistic surrogacy, where a close
relative of the intended parents can act as a surrogate mother without
receiving any monetary
compensation. The primary
reason for the prohibition of commercial surrogacy
is to prevent the exploitation of women, especially those from economically disadvantaged backgrounds. In
the past, there have been several instances where women were forced to become surrogate mothers against their will or were not
adequately compensated for their services.
By prohibiting commercial surrogacy, the Surrogacy (Regulation) Act of 2021, seeks to protect the rights and
dignity of women and prevent any kind of exploitation or abuse. However,
the prohibition of commercial surrogacy
has also been criticized
by some as being overly restrictive and potentially discriminatory towards
those who cannot find a
close relative willing to act as a surrogate. The Act only allows for
altruistic surrogacy, which may not
be feasible for all intended parents. Additionally, the Act does not provide any alternative options for those who require surrogacy services but do not have access to a close relative who can act as a surrogate.
Analysing
this regulative legislation in the eyes of the Constitution of India, a lot of
inferences can be drawn. Section 38
of the Surrogacy (Regulation) Act 2021 entails the prohibition of commercial surrogacy, exploitation of surrogate mothers
and children through
surrogacy.
“Section
38 of the Surrogacy (Regulation) Act 2021 lists the various activities that are
prohibited with respect
to commercial surrogacy
in India. According
to this section, no person or organization can undertake commercial surrogacy or provide
any component procedures or services related
to it. This includes running a racket or an organized group to select surrogate mothers
or using individual brokers or intermediaries to arrange for surrogate mothers and surrogacy procedures.
The Act also prohibits the issuance, publication, distribution, or communication of any advertisement in any manner regarding commercial surrogacy. Furthermore, it is illegal
to abandon, disown,
or exploit in any form the child
or children born through surrogacy or to exploit the surrogate mother or the child
born through surrogacy in any way. The sale of human embryos or gametes for the purpose of surrogacy, as well as
importing or helping to import human embryos
or gametes for surrogacy or surrogacy procedures, is also prohibited. Conducting sex selection in any form for surrogacy is also a
punishable offence. Any person or organization found to
be in contravention of the provisions listed in Section 38 of the Act shall be punishable with imprisonment for a term
that can extend up to ten years and a fine that can go up to ten lakh rupees. The Act also defines the term
"advertisement" to include any notice, circular, label, wrapper, or any other document, including
advertisements through the Internet or any
other media, in electronic or print form. It also includes any visible
representation made by means of any
hoarding, wall painting, signal light, sound, smoke or gas.”
The fundamental right to equality is guaranteed under Article 14 of the
Constitution of India. Article 14
states, “The State shall not deny to any person equality before the law or the
equal protection of the laws within
the territory of India.” The Act restricts and excludes the LGBTQ+ community from availing of surrogacy
services. Gay Couples have no provision to raise a child of their genes if not for the process of surrogacy. Only married
Indian couples are eligible for limited
and conditional surrogacy, and other individuals are further disqualified on
the basis of their nationality, sexual orientation, marital
status, and/or age. This will not stand the correspondence test or the trial of sensible grouping
under the Article leading to a
serious violation of Article 14 of
the Indian Constitution.
Showcasing
the existing gender bias which prevails in our society, the Act exclusively
allows a man and a woman alone,
who are legally married under Indian laws, to avail of surrogacy services,
thus prohibiting non-binary and same-sex couples
from experiencing the joy of parenthood. Although
in the case of Navtej Singh Johar v Union of India (2018), the criminalization of homosexuality under Section 377 of the Indian Penal Code
was struck down by the Supreme Court,
same-sex marriages have not yet been legalized in India, restricting that portion of same-sex couples from
qualifying under section 2(h) of the Act. The section further stresses that a couple must constitute a
man and a woman, limiting the right to avail surrogacy services to a heterosexual married
couple.[5] The Act therefore
puts a constraint on the reproductive rights of Live-in
couples, members of the LGBTQ community, and single, divorced, or widowed parents prohibiting
them from participating in surrogacy under the Act, which makes their exercise of reproductive autonomy unlawful.
The Surrogacy (Regulation) Act, 2021 poses a threat to the right to privacy upheld in the Puttuswamy judgment by forcing a married couple to publicly declare their
infertility raises privacy concerns,
especially given the stigma often attached to infertility. The Act raises
similar concerns for surrogates as
well, since they too would have to disclose their identity. This would put the lives of individuals in limelight
considering their need for privacy in procedures like surrogacy. This would hamper the core idea of Article 19 that
guarantees freedom of speech and expression
to an individual.
CONCLUSION
The members of the LGBTQ community, willing
single parents, and prospective childless
couples are all affected by the Act. In reality, altruistic surrogacy is
a myth because it is difficult for intended couples to locate a willing
surrogate mother who intends to give birth to a child at no cost. Under-the-table transactions will be possible as a
result of this. The Demonstration made it
unlawful for unfamiliar couples as well as planned Indian couples who, as of
now, have a youngster and limits the
opportunities for the LGBTQ people group and single guardians. The Act imposes stringent
conditions and requirements on eligibility certificates, the Act also severely
restricts the autonomy of married couples and potential surrogates. In
addition, the Act blatantly ignores
the fact that the women who choose to become surrogate mothers are from economically disadvantaged backgrounds and for
them, surrogacy is a source of livelihood. Heavy
onus laying prerequisites such as childlessness, five years of non-conception
for intending parents, and the
surrogate being a close relative are prone to criticism. They won't be able to make a living as a result of a complete
ban on commercial surrogacy; instead, they will be expected to perform reproductive labour without being
compensated.
[1] Indian Council of Medical Research, National Guidelines for Accreditation, Supervision and Regulation of ART Clinic
in India (2005).
[2] Surrogacy
in Thailand: What You Need to Know | Surrogate.com. https://surrogate.com/intended-parents/international-surrogacy/surrogacy-in-thailand/
[3] Munjal-Shankar, Diksha.
“COMMERCIAL SURROGACY IN INDIA: VULNERABILITY
CONTEXTUALISED.” Journal of the Indian
Law Institute 58,
no. 3 (2016): 350–66. http://www.jstor.org/stable/45163396.
[4] Barua, Mrinal.
“Surrogacy Debate.” Economic and Political Weekly, vol. 51, no. 37, 2016, pp. 4–5.
[5] Tekriwal,
D., Sahu, S., Leaflet, T., Bakshi, G. K., Kohli, T., Biswas, P., & Nair, R.
(2022, May 14). Lacunae in the Surrogacy (Regulation) Act, 2021 – The Leaflet. The Leaflet – an Independent Platform for Cutting-edge, Progressive, Legal, and Political Opinion.
https://theleaflet.in/lacunae-in-the-surrogacy-regulation-act-2021/
Article Information
A CONSTITUTION’S PERSPECTIVE OF THE SURROGACY (REGULATION) ACT 2021.
Authors: BHARGAV A R
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/25
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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