Open Access Research Article
A SOCIO-LEGAL PERSPECTIVE ON SURROGACY LAWS IN INDIA
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A
SOCIO-LEGAL PERSPECTIVE ON SURROGACY LAWS IN INDIA
AUTHORED BY - AKHIL SAJEEV & M.
ASHWIN
Abstract
This article talks about the Concept
of surrogacy, reproductive rights and surrogacy’s origin and development; The
impact of surrogacy laws on reproductive autonomy and the socio-legal impact of
surrogacy in India, health concerns regarding surrogacy and Commercial
surrogacy and the Surogacy motherhood their criteria & types. The
Legislative Framework of Surrogacy laws in India from 2008 bill to 2020 bill
and the 2021 The Surrogacy Regulation Act 2021.
Introduction
The concept of family plays an
important role in the formation of this society since time immemorial. The
privilege to marry and establish a family has been considered a fundamental
human right. Human rights law upholds the positive right of all peoples to
marry and form a family.[1] Every
society across the world have given prime importance to the institution of
family as the most basic and fundamental unit of social relationship. When two
individuals get together and bind themselves in a matrimonial bond, then a new
family comes into existence and such family gets complete with the birth of
children. Unfortunately, the gift of being able to bear a child is not evenly
distributed by nature. Infertility is a term that refers to the status of being
unable to have a child in medical terms. The paradox of child completing a
family; however, the reality is that it creates difficulty for existing married
couple efforts to have their own offspring.[2]
This social pressure on the couple to have a child often causing matrimonial
disputes and even in some cases those couples are treated as objects of fun in
the society. India is one among the countries where surrogacy is legally
acceptable since 2002. Even then, there is no law that can dictate on surrogacy
agreements in India and there is a need for a proper legislation Surrogacy Bill
or Assisted Reproductive Technology Bill in an attempt to legalize the
surrogacy in India.[3]
Surrogacy may be allowed only if a woman cannot conceive or trying to conceive
may be fatal or complication to the women’s or the baby’s health.to give birth.
Surrogacy is that kind of arrangement whereby a woman other than the wife of
the male partner gets pregnant and gives birth to a baby for them. Here, there
are many people do not want to have a child.
SURROGACY
Surrogacy is derived from the Latin
word “Surrogatus” which means “substitute” or someone appointed to act in the
place of another.[4]
According to Black’s Law Dictionary, is the procedure of bearing and delivering
a child for someone else.[5]
Surrogacy is a legal method of
agreement in which a woman (surrogate) agrees to carry a child for another
individual or a couple (intended parent/s). They do not have any kind of
relationship of affinity with the child at all. Surrogacy is not just a legal phenomenon,
but medical and psychological as well as financial in its aspects. Surrogacy
makes it possible for one to have a baby since there are some individuals such
as those who cannot rear, lesbians and women who cannot conceive. Surrogacy is
a practice where a woman who agrees to become a surrogate mother becomes
pregnant through IVF and gives birth to a child for another individual or
couple – the intended parents. The surrogate is commonly artificially
inseminated through In-vitro fertilization Acronym IVF.[6] In
this process, physicians put together an embryo through the fertilization of
eggs from the intended mother or a surrogate or through using an egg donor as
well as sperm from the intended father or sperm donor. The surrogate then
replaces the embryo in her womb and will give birth to the baby. Contrary to
the traditional case where the surrogate also supplies the egg, the surrogate
has no genetic link with the kid at all.
CONCEPT OF REPRODUCTIVE RIGHTS:
The idea of reproductive right is
looked at international level. CEDAW (Convention on Elimination of all form of
discrimination against Women) Articles 16 and 10 states that women should have
equal rights to; Number, timing, and spacing of their children and to gain
information or advice about family planning.[7] Article
25 of UDHR (Universal Declaration of Human Rights says that everyone has the
right to an adequate standard of living including necessary care and
assistance, further it lays emphasis that motherhood and childhood should be
protected and they should be provided special care.[8] In
the further General Comment 22 a right to sexual and reproductive health is
discussed. This is how the recognition is given to the concept of reproductive
rights at global level. In general terms the reproductive rights mean the right
to have choice to give birth. This right is considered as one of the
fundamental rights. But when it is the matter of implementation part whether
the choice of reproductive right is available for both is the question. But a
stage of life when one has independent parentage of a child is one of the most
important but if that is being restrained because of some reason, then it is
infringement of right. On this side the laws are concerning the fundamental
rights, and on the other side if the laws are preventing individual from
exercising his own fundamental right, then it looks paradoxical.
ORIGIN
& DEVELOPMENT OF SURROGACY
In Black Law’s Dictionary, the use of
the word ‘surrogate’ has its root in Latin word ‘Surrogatus’ which is a
‘substitute’ or ‘representative’, that is a person delegated to act for
another. Surrogacy is one of the oldest practices and is familiar to almost all
the countries and societies of the world. There are different forms of
surrogacies which include Traditional Surrogacy, Gestational Surrogacy,
Commercial Surrogacy and Altruistic Surrogacy.[9]
Surrogacy can be traced back as far as the early civilizations such as
Mesopotamia, the Greeks and Romans. Laws of these societies allowed childless
couples particularly infertile couples to have children and an heir through
surrogacy. For instance, in ancient Babylon child bearing surrogate was common
where women barren could hire women to bear children on their behave but for
their bosses. Besides, the Babylonians had permitted the practice of surrogacy
in order to avoid the protracted and cumbersome process of divorce. Surrogacy
in its technicality can be traced back to biblical stage in the traditional
surrogacy agreement between Abraham, Sarah and her Egyptian maid/surrogate;
Hagars as provided by the book of Genesis. Stories down the ages are many where
women gave birth to king’s and rulers’ children when the queens could not
conceive. At present, the laws on surrogacy have been changing in some of the
states in the U. S. to allow ethical means to the involved stakeholders.
Surrogacy was first used in the biblical story of Sarah and Abraham as written
in ‘The Book of Genesis’. Abraham was married to Sarah but the couple did not
have any child, therefore, Sarah gave her servant Hagar to him as a wife. This
is an example of the traditional method of surrogate since the surrogate
transfers to the intended parents’ baby from her own egg. As much as Sarah
could not be considered biological mother to the child, both she and Abraham
took up the responsibility of raising the child as their own.[10]
The earlier forms of commercial surrogacy were legalised in India during the
Year 2000. This concept was also known as ‘Rent a WOMB’. The only reason behind
the legalisation of commercial surrogacy was medical tourism. It was utilised
for commercial gain rather than to promote medical tourism. Surrogacy became
popular in India. Through Indian clinics, a large number of foreign intended
parents began contacting surrogate mothers. The intended couple was able to
receive a surrogate kid, and the surrogate mother's financial needs were met.
Subsequently, India outlawed commercial surrogacy altogether.[11]
"Surrogacy" refers to the process by which a single woman conceives
and gives birth to a child on behalf of another couple, with the goal of giving
the child back to the intended couple after the birth.
IMPACT OF
SURROGACY LAWS ON REPRODUCTIVE AUTONOMY
The reproductive autonomy is subject
to the considerable influence of surrogacy laws because they can also enhance
or limit the extent to which individuals control their birth decisions. Their
Positive effects can be in Control over fertility can be given to those who are
childless or for the women who are in same sex relationships there can be
surrogacy laws framing alternatives. Laws can protect the interests of the
surrogates, including ensuring that they are fully informed, fairly
compensated, and protected from abuse. Laws can provide a framework for best
practices with the surrogacy service providers.
The Negative aspects may include the
Laws that should be used to encourage or protect reproduction control access to
surrogacy, by making stringent eligibility requirements, or outright
prohibiting commercial surrogacy. Choose a surrogate mother may put the surrogate
women at risk, because the law does not introduce mechanisms protecting their
rights. Laws allow the continuation of prejudice against surrogacy which
hinders people from seeking this option of childbearing.
SOCIO-LEGAL
IMPACT OF SURROGACY IN INDIA
Surrogacy can be linked to the
various rights of an individual. On one hand we speak of equality on the basis
of it being a fundamental right and on the other hand this right is being
violated by certain other laws. Such laws are themselves in violation, in this
case, on the violation of individual rights law. In surrogacy basically two
parties are required i.e. surrogate mother and intended parents. Other than the
intended couple and the surrogate mothers, however, such opportunities are
restricted. It is a reproductive autonomy or the right to become a mother,
which is a human right on the international arena, which is also embedded in
some of the international law principles. However, surrogacy in the present
Indian legal context appears to have certain conditions to be fulfilled in
order to qualify as the intended parents or a surrogate mother. Unfortunately,
one is not allowed to take a decision to skip motherhood by way of surrogacy
not on his or her free will. The following are some of the rights which talks
about the impact of surrogacy in India and all or atleast some of such rights,
are also recognised at international level and by other Indian laws.
(i)
RIGHT TO COMPENSATION AND HEALTH
According to a recently passed Act,
surrogacy and surrogacy operations cannot be conducted, undertaken, performed,
or used for any other reason than selfless surrogacy and when they are not used
for profit or to commercialise surrogacy or surrogacy procedures.[12]
The surrogate mother receives no financial remuneration for agreeing to be a
surrogate in an altruistic surrogacy. The current legislation states that a
surrogate mother is only compensated for her medical costs and insurance during
and after the pregnancy. Altruistic surrogacy does not pay the surrogate mother
anything, and only a small percentage of women who are close relatives of the
intended parents will be willing to serve as surrogate mothers. The
aforementioned circumstance has an impact on the parent's ability to get
pregnancy. Another problem with this is that the law does not consider a
situation whereby the surrogate mother is an employee and has working hours
doing which how she is paid for this time devoted to surrogacy. At the same
time, there are health problems which arise or develop before, during or after
the pregnancy which could affect the health of the surrogate mothers adversely
for a long tag. Compensation has not been addressed in the regulation in
connection with this problem in the law.
(ii)
REPRODUCTIVE RIGHTS & MOTHERHOOD RIGHTS
Current law stipulates that: Provided
that an Indian couple or an intending woman who wishes to use surrogacy obtain
a certificate of recommendation from the Board on an application made by the
said persons in such a form and manner as may be prescribed.[13] and
that in the event that an intending couple has a medical indication that
requires gestational surrogacy.
India's surrogacy laws refer to
"Certificate of Eligibility" provided by relevant body upon meeting
specific requirements, such as intended parents being a married pair or
intending lady (i.e., widow or divorcee) within a particular age range. It
makes it very clear that using a surrogate to become a parent is not permitted
for single people, LGBTQ people, couples, etc. It has an impact on the reproductive
rights of mothers in some way.
(iii) ABSENCE OF PROVISIONS FOR ENFORCING
INSPECTIONS
Apparently, there is no such
provision which describes the application of these laws. The most important
issue of this discussion is the one which deals with the question of whether
the surrogacy process is done properly or not. In addition to that, certain
punishments are also provided, however, they do not explain what the pragmatic
consequences of the post-surrogacy effect will be. Another aspect on the same
related issues is a child's protection and welfare in the course of and post
their upbringing. Children who are supposed to grow up with an intended couple
cannot be properly ordered since there is no legal body that specifically deals
with such cases. The child may not be raised as expected by the prospective
parents.
(iv) SURROGACY PROTOCOL AND MORAL DILEMMAS
The topic of surrogacy agreements is
covered in the Indian Law Commission Report. All agreements are considered
contracts under Section 10 of the Contract Act if they are made with the free
consent of parties who are legally able to enter into contracts, for a lawful
consideration and with a lawful intent, and if they are not expressly declared
void. Consequently, any surrogacy agreement that meets these requirements is
legally binding. After that, it may be the focus of a civil lawsuit under
section 9 of the CPC before a civil court in order to resolve any disagreements
regarding the surrogacy agreement and to obtain a declaration or injunction.[14]
It has to be of some consideration which has a specific pecuniary value under
the Indian Contract Law. Next, we look at consideration and it’s considered as
being one of the most pivotal aspects of the contract. In a commercial
surrogacy transaction it is unethical to provide money for the renting out of a
womb. Because there is no regard for the surrogacy agreement idea in altruistic
surrogacy, the entire concept of the surrogacy agreement will not be
considerate. Altruistic surrogacy merits surmount the fact that the surrogate
mother is not paid for her services since she volunteers to do the surrogacy.
Therefore we can infer that an agreement cannot be applied without one of the
necessary part. Even in this case the statute creates room for exceptions to be
made. In addition to that, some perceptions consider surrogacy agreements as
ethically wrong in the first instance.
(v)
RIGHT TO PRIVACY
One of our important rights,
protected through Article 21 of the Indian Constitution, is the right to
privateness. The proper to privacy has also been acknowledged through the
Supreme Court in a number of case statutes. In the event of surrogacy, this
privateness have to be preserved. Concerning the surrogacy technique' secrecy,
there may be a opportunity of data theft. This may want to have an effect on
stakeholders' privacy. The right to records is a in addition critical aspect.
The child is entitled to information concerning his surrogacy, dad and mom, and
region of start.
(vi) EXPLOITATION OF SURROGATES AND THE
CHILD
The prohibition of business surrogacy
eliminates ladies’ liberty to choose their personal reproductive route and
parental rights by using moving the focus from rights-primarily based to
desires-primarily based methods. One ought to contend that that allows you to
guard the kid's right to delivery, the state have to cease exploiting
impoverished girls thru surrogacy. The existing Act, but, does not thoroughly
balance those pastimes.[15]
(vii) COMPENSATION AND BENEFITS
Aside from the costs for prenatal
care and an insurance cover, no payment can be made to a surrogate mother.
Payment for commercial surrogacy is not allowed unless it is in kind, cash or
any form of remuneration. Couples looking for a surrogate have to first acquire
two different documents from an authorized person: one that states the
necessity of choosing surrogacy and the other that validates their
qualifications. Essentiality certificate can only be obtained after meeting
some conditions.[16]
(viii) CONSTITUTIONAL RIGHTS AND SURROGACY
As per Article 21 of the Indian Constitution,
every human being has the right to live and enjoy personal freedom. With a
broader understanding, the courts have interpreted this individual liberty so
widely that it also includes various rights and freedoms. In the context of
surrogacy, the right to life includes the independence to make choices
concerning one’s family life and reproductive health. It means people are free
to choose whether they want to use surrogacy as a means for becoming parents or
not.[17]
Even if it is not specifically
mentioned as a fundamental right in the Indian constitution, earning a living
can be seen as an extension of right to life and personal liberty. Surrogacy
especially from a perspective of economic work can be viewed as a woman’s right
to a living wage. Being surrogate mothers provide many families with chances
and financial support.[18]
SURROGACY
(REGULATION) ACT, 2021
Provision:
A married couple with a husband and
wife as defined by law or a widow/widower who has remarried should be between
35-45 years of age before engaging in surrogacy because it is necessary for
them due to medical condition. This is an empirical provision contained in the
Surrogacy (Regulation) Act, 2021.
Furthermore, it prohibits all forms of commercial surrogacy that comes with a penalty of 10 years imprisonment and fine up to Rs. 10-lakh.
The law recognizes only altruistic
surrogacy in cases where no payment is done and where surrogate mother has
genetic connection with intended parents.[19]
Challenges:
1. Exploitation of the Surrogate Child:
Some say that the
government has to save poor ladies from being used in surrogacy and protect a
child’s right to live. Nevertheless, this section of legislation is unable to
create an equilibrium between these two motives.
2. Strengthens patriarchal norms:
The Act endures the
already existing patriarchy norms in our society that do not accord much value
to women’s labour, which have a direct bearing on women’s right to reproduction
as per article 21 of the Constitution.
3. Invalidates legitimate income source
for surrogates:
Banning commercial
surrogacy also denies surrogates their legal source of income thereby reducing
the number of women willing to act as surrogates.
In general this act deprives the involuntary childless couples from being parents.
In general this act deprives the involuntary childless couples from being parents.
4. Emotional Difficulties:
When altruistic surrogacy
involves a friend or relative, there are high chances of relationship risks
during the pregnancy and post-birth periods leading to emotional difficulties
for both the intended parents as well as the surrogate baby.
Moreover, due to lack of willingness among relatives to go through this process, altruistic surrogacy limits options available to the intended couple when choosing a surrogate mother.
Moreover, due to lack of willingness among relatives to go through this process, altruistic surrogacy limits options available to the intended couple when choosing a surrogate mother.
5. No third parties are involved in an
altruistic surrogacy:
This ensures that all
medical and other miscellaneous expenses related to surrogacy are paid up front
by the intended pair if any third party is present.
Typically, during this complex undertaking, third parties facilitate communication between prospective parents and surrogate mothers—something that may not occur in selfless surrogacy situations at all.[20]
Typically, during this complex undertaking, third parties facilitate communication between prospective parents and surrogate mothers—something that may not occur in selfless surrogacy situations at all.[20]
SOCIAL
IMPACT OF SURROGACY
The welfare state approach to
surrogacy regulations in India raises concerns about the implications for both
the surrogacy industry and the general public. In the Indian Experts in a range
of fields, including bioethics19, social work17, feminist ethnography18, and
health policy16, have begun to pay more attention to surrogacy. A kid is
intimately linked to a woman's unique identity than other forms of labour.
Pregnancy is a long-term complex process that leads the mother and foetus
emotional and physical attachments.[21]
Both the surrogacy
industry and the public at large are concerned about the implications of
surrogacy regulations based on India's approach to a welfare state. Surrogacy
in India has started to attract more attention from professionals in diverse
fields such as health policy16, social work17, feminist ethnography18 and
bioethics19. The distinctiveness of motherhood is more of a defining trait for
women than for those who engage in other forms of labor and hence pregnancy is
an attitudinal process that establishes powerful affective and sensory
connections between mothers and foetuses over time.[22]
Surrogacy commercialization is one of
the modern legal issues emerging from recent developments in assisted
reproductive technology (ART). Therefore, there is a need for appropriate laws
to address this very sensitive subject that has a lot of social, legal, ethical
and political implications. In this context, the 2015 Bill was meant to protect
the legal, social and medical rights of genetic parents as well as surrogate
mothers. The proposed bill also contains various guiding principles concerning
various guidelines which ART facilities are supposed to follow. In addition to
that, ART clinics have certain rights and obligations that they must observe
together with genetic parents, donors and surrogate mothers depending on
compliance with the stipulations in this draft legislation regarding punishment
for offences and their consequence.[23]
The ethical and legal ambiguities
connected with surrogacy, as well as the rights of mothers and children, are
largely absent from both the 2008 Reproductive Technology (Regulation) Bill and
its 2014 revision. Sometimes, it provides for provision that allows surrogate
mothers to be given payments in a legally enforceable manner. By 20-12-21,
commercial surrogacy—which has been dubbed the “surrogacy capital of the
world”—is expected to grow to be a massive US$ 2.3 billion sector in our
nation. 32.7% of our people live below the international poverty line; hence,
they live poorer than many other countries across the globe. Therefore, Indians
are easy prey to exploitation by those who are coming from other parts of this
planet rich enough to provide bastards with all kinds of luxuries at their
disposal.[24]
Hypertension, gestational diabetes
and reproductive organ injury are some of the illnesses that can develop as a
result of certain medicines. Surrogacy pregnancies are no exception to this;
premature labour or miscarriage may occur in such cases as well.[25]
LEGAL
IMPACT OF SURROGACY
The arrangement is equipped in
various ways and by different people. Different states have different roles to
play and functions to perform since some surrogacy practices are condemned as
felonies in some states, while they are allowed for philanthropic reasons in others.
Currently, India is the only country that does not prohibit or regulate
surrogacy. Within this context, there is no legal framework on surrogacy in
India. National Academy of Medical Science and ART practitioners contend that
it is neither fully legal nor actionable since it was not explicitly discussed
as such within the ambit of law. In 2005, Ministry of Health and Family Welfare
released guidelines that were not binding on ART clinics’ accreditation,
regulation or monitoring after years of debate mostly in ICMR. The aim of The
Assisted Reproductive Technology Bill 2008 was to give some forms of
reproductive technology a face-lift including commercial surrogacy under Indian
Council for Medical Research.[26]
In accordance with the surrogacy law
of 2021, India allows only altruistic surrogacy, where a surrogate mother
carries a child for somebody else without being paid except for health
insurance. Thus, this provision safeguards all individuals involved, ensuring
that surrogacy contracts in India remain ethically sound and transparent.
Moreover, there are some requirements that have to be met by couples or
individuals wishing to pursue surrogacy in India; highlighting the importance
of regulated and ethical surrogacy process in the country.[27]
The rationale behind the need for
surrogacy legislation was provided by the Indian Law Commission in its 228th
Report. The Draft Assisted Reproductive Technology Bill and Rules (2010) is the
latest draft following the amendments and additions made to the 2018 draft. Under
the Assisted Reproductive Technology Bill of 2013, a surrogate mother must be
at least 21 years old but under 35 years old. At present times, there exists no
law on surrogacy in India because it is not explicitly declared illegal. It
seems like it is fully legitimate to do so. Through the above-discussed rules
and regulations, one can understand what really is the legal position of
surrogates in India.[28]
(i)
LEGAL STATUS OF SURROGACY IN INDIA
The Commission cites
Article 16.1 of the 1948 Universal Declaration of Human Rights, which states
that "men and women of full age without any limitation due to race,
nationality, or religion has the right to surrogacy," to demonstrate that
surrogacy is lawful and protected by both international and domestic law to get
married and have a family. The Law Commission emphasizes that surrogacy
protection is a part of this right. Nevertheless, the committee believes that
in spite of this, other nations do not recognize this right is a component of
the right to reproduce. The commission urges cautious regulation of surrogacy.
Believe the time has come to take a practical approach and legalize
arrangements for altruistic surrogacy and outlaw using commercial surrogates.
(ii)
ETHICS OF SURROGACY
Surrogacy should be one
of the critical moral concerns particularly among the developing nations.
Usually, surrogacy is viewed merely as a monetary transaction between
commissioning parents and surrogate mothers; however many other factors need
consideration besides this e.g. motherhood desires and unborn child’s rights
among other things. The first evidence about this can be traced back to
Genesis. It is extremely difficult to relate women’s reproductive system
variations with different religious and cultural backgrounds. In addition, it
has been discovered that everything possible has been done by Jewish laws to
support those who face these kinds of problems provided they do not cause harm
to anyone in the process.[29] Many
individuals see surrogacy as an option for infertility “treatment” or a substitute
for adoption and thus, it should be embraced as it enables people to realize
their dream of getting children. But surrogacy brings with it numerous
complicated ethical problems related to gender, work, pay, exploitation and
disparities.[30]
All types of infertility therapies for women are supported by the Catholic Church but not assisted reproductive technology. These are some faiths that hold progressive opinions regarding the management of infertility: Baptists Methodists Lutherans Mormons Presbyterians Episcopalians United Church of Christ Christian Scientists Jehovah's Witnesses Mennonites. There is complete freedom to treat barrenness according to Islamic law. The use of artificial sperm is also included but only restricted to the husband and wife. The issue has been raised less vehemently within Hinduism than others concerning assisted reproduction technologies. Their belief was always that one’s karma starts at birth so they did not have any discussions about using ARTs among themselves. They never opposed assisted reproduction; they instead viewed it as medical help rather than violation of religious norms[31]
All types of infertility therapies for women are supported by the Catholic Church but not assisted reproductive technology. These are some faiths that hold progressive opinions regarding the management of infertility: Baptists Methodists Lutherans Mormons Presbyterians Episcopalians United Church of Christ Christian Scientists Jehovah's Witnesses Mennonites. There is complete freedom to treat barrenness according to Islamic law. The use of artificial sperm is also included but only restricted to the husband and wife. The issue has been raised less vehemently within Hinduism than others concerning assisted reproduction technologies. Their belief was always that one’s karma starts at birth so they did not have any discussions about using ARTs among themselves. They never opposed assisted reproduction; they instead viewed it as medical help rather than violation of religious norms[31]
HEALTH
CONCERNS REGARDING SURROGACY
Surrogate pregnancies are almost as
risky as regular ones during childbirth and delivery. These include weight
gain, swelling, backaches, heartburn, morning-sickness-related nausea among
other unpleasant effects. Some of the most serious negative effects include
gestational diabetes, hypertension and even damage to reproductive organs due
to pregnancy-related diseases.Like any other forms of gestation surrogacy
pregnancies have associated risks such as preterm labor or miscarriage. It is
important therefore to keep in constant touch with your doctor about prescribed
medication, adequate sleep and adherence to their directives so as to lower
these risks. On the other hand IVF treatments using gestational surrogacy has
certain minor medical concerns. This means that if you are taking fertility
drugs such as those you can inject at home yourself through a needle like
device then expect anything from mild needle bruises up to transient allergic
reactions that go away quickly.[32]
If you are on medications to control
your menstrual cycle and boost your chances of conception, there is a high
possibility that you may experience more symptoms of pre-menstrual syndrome
like headaches or mood changes. There is very little risk to transferring
embryos. After the surgery, you may experience light bleeding or cramps. As
always, it is essential to stay in touch with your doctor; sometimes an
infection may develop that can be treated by antibiotics but in rare cases
only. It is important for you to understand the risks associated with twin or
triple pregnancy because having multiple infants is common in surrogacy. This
includes risks such as premature delivery, low twin birth weight, detachment of
the placenta and caesarean section. The doctor will most likely give you
detailed advice on how to do your daily activities safely if you are expecting
more than one child.[33]
COMMERCIAL SURROGACY IN INDIA
India became a destination for
surrogacy because in 2002 it legalized commercial surrogacy. Many infertile
couples unable to conceive naturally resorted to seeking surrogate mothers who
were paid; consequently, India became internationally known as a hub for
surrogacy. However, as time went by, government of India noted some abuses and
loopholes regarding commercial surrogacy and therefore introduced by the ICMR
rules that would prevent it. According to a United Nations (UN) report in 2012,
India was named “the world capital of surrogacy”.
The practice of commercial surrogacy
was made illegal by the Indian government in 2015 and it barred the
participation of foreigners, or NRIs. In November 21, 2016, a surrogacy
regulation bill that was introduced in Lok Sabha was rejected by the standing
committee on January 12, 2017. Later on August 10, 2017 the committee submitted
its report to Lok Sabha which passed the bill on December 19, 2018. It expects
selfless surrogacy but discourages commercial ones. Moreover, the bill protects
against exploitation of children and surrogate mothers. After intense talks,
the Surrogacy Regulation Act was eventually passed on December 25, 2021.[34]
SURROGATE MOTHERHOOD:
MEANING
In surrogate motherhood practice, one
woman serves as a surrogate or replacement mother for another known as intended
mother who is unable to carry a pregnancy to term or to fertilisation. There
are various ways through which surrogate mothering can be done. The most common
method of implanting the husband’s sperm in the surrogate is through artificial
insemination. In this case, gestational mother is also biological mother of the
child born through her womb. This kind of surrogacy is known as traditional
surrogacy.[35]
According to the Black Law Dictionary, a surrogate mother may or may not be a child’s genetic mother. There are two classifications schemed like traditional surrogacy and gestational surrogacy. It can also be classified into altruistic or commercial depending on whether she receives payment during pregnancy or when giving up the child. Since these situations entail social, ethical, and legal concerns there might be plenty of disagreements.[36]
Regarding this more analytical
mindset, actually acceptably, in a way of "renting a uterus" could be
justified with something like "at least our gametes have fused together to
make this foetus, although it’s growing in a borrowed womb." A case was
similar when sisters, sisters-in-law and even mothers were doing it for their
sibling’s wife-turned-on surrogates were also allowed, since if there arise any
problems later on they can be resolved promptly and blood will always tell
after child birth.[37]
It is a procedure whereby a woman (the surrogate mother) carries a child for a couple who can’t conceive, mostly due to infertility on the part of the wife or inability to carry the pregnancy to term. The surrogate becomes pregnant through artificial insemination (usually with sperm from the husband) or by placing an embryo made through in vitro fertilization into her womb. Traditionally, surrogate mothers surrender all parental rights; although this has come under legal contestation.[38]
CRITERIA
FOR BECOMING SURROGATE MOTHER
Knowing who is eligible to serve as a
surrogate is crucial, and the following standards must be met in order to judge
a woman's suitability for the role:
Surrogates
a) must be in perfect health;
b) should have no physical complications
that are likely to cause pregnancy;
c) must not be overweight, smoke much,
get involved in alcoholism or drug abuse because such traits would make her and
the unborn baby at risk when she is acting as a surrogate mother;
d) should have had at least one previous
child preferably with one of her relatives;
e) need to do so on an independent
basis;
f) ought to be below 35 years;
g) surrogacy is both physically and
emotionally demanding hence a support system including husband, friends or
relatives must be provided.
h) All practical, emotional and legal
matters should be considered in detail. Also looked into is how it would affect
any children already present as well as the surrogate mother's partner, family
or friends.[39]
TYPES OF
SURROGACIES
Although there are various types of
surrogacies but the following types are essential for the purpose of study:
(i)
Altruistic Surrogacy
This phrase refers to the
situation where there is no formal contract or payment to the birth mother.
Most of the time, it’s an agreement made among family or close friends.
Altruistic surrogacy has three main components including surrogate mother
carrying the baby, relinquishing her parental rights after delivery of the
child and paying surrogate mother by genetic parents. The surrogate is
remunerated partly or wholly so as to compensate her suffering and thus may
include her medical bills among other expenses.[40]
(ii)
Commercial Surrogacy
On the other hand,
commercial surrogacy consists of paying a huge sum of money to the surrogate
for services rendered and any additional costs incurred during pregnancy;
therefore, it can be perceived as business. In exchange for relinquishing the
baby at birth by the birth mother a fee for incubation services is charged like
in any other business transaction. Besides, there are usually financial
agreements such as those stated above besides additional costs among which
includes wage loss etc. Often times this stipulates some actions that
biological mother will have to perform (like undergoing tests, getting an
abortion in case fetus is abnormal or refraining from drinking and smoking).
Most of the time, the intended parents who want to have their own baby and the
birth mother do not know each other. Some people argue that if only costs and
earnings are paid, then the arrangement would be non-commercial and not for
services rendered or giving up custody rights to a child.[41]
This medical procedure has been made legal in many countries, including India.
It has a vastly developed sector because of its excellent medical facilities,
great international demands as well as accessibility to inferior surrogates.
Commercial surrogacy is sometimes referred to as “wombs for rent”, “outsourced
pregnancies” or “baby farms” which have sensitive connotations that can be
quite derogatory.[42]
INDIAN LEGISLATURE
Numerous
bills on surrogacy have been presented time and again before the houses of the
parliament, these bills are discussed in detail below:
(i)
Assisted Reproductive Technology
(Regulation) Bill 2008
Views from various states indicates that national regulations were not
being uniformly implemented all over the country. Therefore, in 2008, the ART
(Regulation) Bill was drafted by ICMR. Other amendments to this law are: the
Statute on Assisted Reproductive Technology (Regulation) of 2013, 2014, 2017
and the Bill of 2020.[43]
(ii) The
Surrogacy (Regulation) Bill, 2016
J.
P. Nadda, Minister for Health and Family Welfare, introduced the Surrogacy
(Regulations)
Bill, 2016 in Lok Sabha on November 21, 2016.
Some
of the key features of the bill are:
1.
Substitution, as per the law means that
she gets pregnant with someone else's child and has it in place of that couple.
2.
The bill requires altruistic
replacements while outlawing paid replacements. There is no need for the
altruistic replacement to give the substitute mother any extra money above the
medical and insurance costs during pregnancy. In contrast to necessary medical
and insurance expenses, marketable replacement requires substitute and cash or
kind compensation methods.
3.
The intending couples must obtain an
"entitlement certificate" or a relevant authority issued
"essentiality certificate".
4.
A statement by a District Medical Board
that one or both persons in the relationship are barren.[44]
(iii) The
Surrogacy (Regulation) Bill, 2019
In the eve of urging for non-profit surrogacy in India, the Union
Cabinet brought forth before the Lok Sabha the Surrogacy (Regulation) Bill,
2019 on July 15, 2019.The reasons for surrogacy according to Section 4(ii) of
the Surrogacy Bill, 2019 are as follows:
1.
It should not be commercialized.
2.
It should only be done out of selflessness
3.
It cannot be meant to abuse, sell or traffic children in any way.
4.
They are for couples diagnosed with infertility
5.
Other eligibility criteria set forth by regulations.[45]
(iv) Assisted
Reproductive Technology (Regulation) Bill 2020
The Bill defines “assisted reproductive technology” as a means of
conception achieved through handling sperm or oocytes outside the human body
and placing gametes or embryos within a woman’s reproductive system; it was
first presented in Lok Sabha on September 14, 2020.[46]
(v) Surrogacy
(Regulation) Act, 2021, and the Assistive Reproduction
Technology
(Regulation) Act, 2021
Approved were by the Rajya Sabha The Assisted Reproduction Technology
(Regulation) Bill, 2021 and Surrogacy (Regulation) Bill, 2021. Two bills
simultaneously trying to prohibit commercial surrogacy in India while
regulating in vitro fertilization (IVF) clinics.[47]
Notably, in June 2022 were notified by the Ministry of Health and Family
Welfare the Assisted Reproductive Technology (Regulation) Rules, 2022, using
powers that have been given them under Section 42 of the Act.
Assisted
Reproductive Technology (Regulation) Act, 2021
1.
The Assisted Reproductive Technology
(Regulation) Act, 2021 was made to control and oversee assisted reproductive
technology clinics and banks as well as to protect against abuse.
2.
The Act mandates that all banks and ART
clinics be registered in the National Registry of Banks and Clinics of India.
This Bill requires the establishment of a National Registry which will provide
a national database with information about all ART clinics and banks across the
country.
3.
The Act also lays down guidelines
concerning the supply and donation of gametes.
4.
It is even clearer in this Act that the
parent of a child born through ART shall not have any parental rights over the
donor whatsoever.
Surrogacy
(Regulation) Act, 2021
1.
Commercial surrogacy is forbidden by
the Surrogacy (Regulation) Act, 2021 and only allows altruistic surrogacy.
2.
Additionally, the intended couple must
obtain an eligibility certificate and a certificate of essentiality from the
appropriate authorities.
3.
This Act restricts itself to
gestational surrogacy which breaks any biological link between the surrogate
mother and her child.
CONCLUSION
One
key component of marriage is conceiving a child. Females possess the right to
feel privileged because they are able to carry out the act of child-birth. In
our country, giving birth has been esteemed highly. Moreover, a female can only
be considered as a wife when she has her own children in this society. However,
not all women have such advantage; indeed some cannot organize any occasion due
to the lack of fertility by either spouse. For the purposes of child birth
several techniques are in existence such as IVF or even surrogacy. Surrogacy
has over time become a popular technique used by many couples who want to
complete their families. However some issues related to it are endless since
many questions remain unanswered concerning it. There is currently an Act on
Surrogacy though it suffers from 3 major gaps: First off, LGBTQ+ couples do not
benefit from surrogacy under the law resulting into the violation of their
rights under Article 14 and 21 of our constitution; Second, Section 2(s) of
Surrogacy (Regulation) Act 2021 fails to consider single women seeking
surrogacy; and finally while altruistic surrogacy is allowed, yet finding a
surrogate mother becomes itself a problem.
The
necessity of today is to defend reproductive independence. Surrogacy is one of
the methods through which people can experience fatherhood or motherhood. At
the same time, it is important to protect the rights of surrogate mothers,
surrogate children, and desired parents while safeguarding such independence.
Existing laws do not address some issues that are denying intended couples the
right to be eligible for surrogate parents. Thus, not every individual can go
for this option at all. Amendments may be necessary under legislation because
of equality rights. Moreover, referring to surrogate mothers every woman cannot
become a surrogate mother. The surrogate mother can only be a close relative of
intended parents. Here, however, surrogate mother cannot be coerced into acting
so by members of her family and it must be done voluntarily. Furthermore, if
she faces money problems, it cannot be resolved through this process and no
remuneration shall ever be paid either way. Therefore, the laws should be
reformed as per different human rights protection required by individuals.
[1] Article 16 (1) of Universal
Declaration of Human Rights, 1948.
[2] Imrana Qadeer, “Social and
Ethical Basis of Legislation on Surrogacy: Need for Debate” Available at:
http://www.issuesinmedicalethics.org/171co28
(visited on 19.09.2023).
[3] https://blog.ipleaders.in/is-surrogacy-legal-in-india/
[4] R.S. Sharma, Social, ethical,
medical & legal aspects of surrogacy: an Indian scenario, 140 IJMR 13,
(2014),
Social,
ethical, medical & legal aspects of surrogacy: an Indian scenario - PMC
(nih.gov).
[5] Surrogacy, Black’s Law
Dictionary, (9th edition,2009).
[6]
https://www.creativefamilyconnections.com/blog/history-of-surrogacy/
[7] United Nations, Sexual and
reproductive health and rights, Available at
https://www.ohchr.org/en/women/sexual-and-reproductive-health-and-rights
[8] United Nations, Universal
Declaration of Human Rights, Available at,
https://www.un.org/en/aboutus/universal-declaration-of-human-rights
[9] Surrogacy (Regulation) Bill,
2020: The Way Forward, ipleaders, available at
https://blog.ipleaders.in/surrogacy-regulation-bill-2020-way-forward/
[10] History of Surrogacy,
SURROGATE.COM, available at
https://surrogate.com/aboutsurrogacy/surrogacy-101/history-of-surrogacy/
[11] https://www.deslaw.edu.in/pdf/Socio-legal_impact_of_surrogacy_in_India.pdf
[12] S. 4(b), The Surrogacy
(Regulation) Act, 2021.
[13] S. 4(a), The Surrogacy
(Regulation) Act, 2021.
[14] 228th Law Commission of India
Report, Need For Legislation To Regulate Assisted Reproductive Technology
Clinics As Well As Rights And Obligations Of Parties To A Surrogacy, 22 (2009),
Available
athttps://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022
081094-1.pdf
,
[15] https://www.drishtiias.com/daily-updates/daily-news-analysis/surrogacy-law#:
[16]
https://www.khuranaandkhurana.com/2023/06/16/legality-of-surrogacy-in-india-everything-you-need-to-know.
[17]
https://www.defactolaw.in/post/surrogacy-in-india-law-and-issues.
[18] Ibid, 17
[19] https://www.drishtiias.com/printpdf/surrogacy-4
[20] Ibid, 19
[21] https://www.ijfmr.com/papers/2022/6/1139.pdf
[22]
https://www.pagepressjournals.org/hls/article/view/hls.2015.5465/5394 - :~:text=Surrogacy%20can%20lead%20to%20the,children's%20psychological%20adjustment%20is%20undetermined.
[23] Ibid, 21
[24] Ibid, 23
[25] surrogate.com/surrogates/pregnan
cy-and-health/emotional-and-medical-risks-of-surrogacy/#:
[26] supra, 21
[27] https://www.ivfconceptions.com/latest-surrogacy-law-in
india/#:~:text=The%20surrogacy%20law%20in%20India,medical%20expenses%20and%20insurance%20coverage.
[28]
https://www.ijfmr.com/papers/2022/6/1139.pdf
[29] Supra, 28
[30] https://www.birmingham.ac.uk/news-archive/2018/the-ethics-of-surrogacy-1#:~:text=Surrogacy%20is%20often%20thought%20to,%2C%20payment%2C%20exploitation%20and%20inequality.
[31] Supra, 28
[32]
https://surrogate.com/surrogates/pregnancy-and-health/emotional-and-medical-risks-of-surrogacy/#:
[33] Supra, 32
[34] https://www.ijfmr.com/papers/2022/6/1139.pdf
[35] http://www.legal-dictionary.thefreedictionary.com/surrogate+motherhood
[36] Black’s Law Dictionary, Eighth
Edition, 1036 (2004).
[37] Nandita Adhikari, “Surrogate
Motherhood” Law and Medicine 167 (2012).
[38] http://www.britannica.com/EBchecked/topic/575390/surrogate-motherhood
[39] Supra, 37
[40] Kush Kalra, “Surrogacy
Arrangements; Legal and Social Issues” Journal of Law Teachers India 125
(2010).
[41] Ibid, 40
[42] J.P.S. Sirohi, Criminology and
Penology 679 (2011)
[43] Surrogate Motherhood -Ethical
or Commercial, Dr. Ranjana Kumari, Director Centre for Social Research
Available
at https://wcd.nic.in/sites/default/files/final%20report.pdf. (Visited on
26.09.23).
[44] https://www.hindustantimes.com/editorials/the-new-surrogacy-bill-will-stop-exploitation-of
women-and-make-way-for-ethical-practices/story-zefLgh17lJpfjg8T8zv1QM.html
[45] Surrogacy (Regulation) Bill,
2019, Section 36
[46] Assisted Reproductive Technology
Regulation Bill proposes national registry of clinics
[47] Esha Roy, “Surrogacy regulation
Bill and ART Bill passed by Rajya Sabha”, Indian Express, 9 December,
2020
,Available at
:https://indianexpress.com/article/india/surrogacy-regulation-bill-art-bill-passed-by-rajya
sabha-7663054/
Article Information
A SOCIO-LEGAL PERSPECTIVE ON SURROGACY LAWS IN INDIA
Authors: AKHIL SAJEEV, M. ASHWIN
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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- License CC 4.0
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