SURROGACY BY – VAISHNAVI
SURROGACY
AUTHORED BY – VAISHNAVI
INTRODUCTION
Infertility has emerged as a mounting
healthcare concern impacting both genders, and its etiology encompasses various
factors, including age, genetics, lifestyle, and environmental determinants.
Given the escalating prevalence of infertility, the demand for alternative
reproductive methods to facilitate parenthood has become imperative. Notably,
surrogacy has gained prominence as a viable option due to advancements in
assisted reproductive techniques. Furthermore, shifts in societal norms have
contributed to the wider acceptance of surrogacy. In today's progressive
society, infertility is recognized as a healthcare issue by both men and women,
and parenthood is no longer confined to heterosexual couples. The advancements
in assisted reproductive technologies have enabled individuals of diverse
gender identities to embark on the journey of parenthood, with surrogacy
emerging as a viable alternative.[1]
The term "surrogacy"
denotes the practice of utilizing a woman's uterus to carry a fetus to term,
with the intention of raising the child by another party. This concept is
rooted in the Latin word "subrogate," signifying "acting as a
substitute" or "a replacement." According to American Law
Reports, surrogacy is typically defined as "...a contractual arrangement
wherein the biological or surrogate mother, in exchange for compensation,
agrees to conceive a child through artificial insemination using the biological
father's sperm, carry and deliver the child for the biological father, and relinquish
all parental rights following the child's birth".
Surrogacy can be categorized into
altruistic and commercial variants. Altruistic surrogacy, in alignment with its
nomenclature, involves no financial remuneration for the surrogate. In
contrast, commercial surrogacy entails compensation to the surrogate for her
gestational services, implying a profit motive, while compensated surrogacy
covers the surrogate's associated expenses and income loss.[2]
India saw a boom in commercial
surrogacy from 2002 to 2015, largely benefiting underprivileged women but also
leading to exploitation. Global regulations on surrogacy vary widely, leading
to legal clashes and concerns about cross-border travel.
Due to the vulnerability of surrogate
mothers and children, there was a need for comprehensive regulation. The Indian
government responded by proposing the Surrogacy Regulation Bill in 2015, which
eventually became law in December 2021. This law permits altruistic surrogacy
and prohibits commercial surrogacy, ensuring that surrogacy is not driven by
profit and protecting the rights of commissioning parents.[3]The
issue was brought before the Lok Sabha of the Indian Parliament when the
government decided to prohibit commercial surrogacy in its response to question
100 on December 4, 2015. This initiative culminated in the creation of the
Surrogacy (Regulation) Bill in 2016, which, following multiple amendments, was
approved by the Lok Sabha in 2018. The Rajya Sabha established a committee to
engage stakeholders in discussions on the Surrogacy (Regulation) Bill 2019,
resulting in further amendments and its eventual enactment into law on December
25, 2021. It was released alongside the Assisted Reproductive Technology
(Regulation) Act, 2021, just a week before. On January 25, 2022, the new
Surrogacy (Regulation) Act, 2021, came into effect. This amended legislation
exclusively permits altruistic surrogacy, preventing individuals with financial
means from exploiting the surrogacy option for profit. It also prohibits
commercial surrogacy and the trade of human gametes and embryos.
Background/Gene
Surrogacy, comes from its origin
from Latin term ‘Subrogare;that acts as in place of substitution or
replacement . It stands for an agreement where women chooses to carry
someone’s else child in return of payment with handing over its original
parent Hence, surrogacy helps people to became parents in their own genetical
way. Further surrogacy is divided into two parts that is commercial and
non-commercial. Commercial surrogacy is that surrogacy where there is an
arrangement of surrogate mother is compensated for services beyond
reimbursement of medical expenses. And, on other hand non commercial surrogacy
also refers as Altruistic surrogacy are those where the surrogates does not
receive monetary compensation. In most of this surrogacy, the surrogates is a
close relation to the when intended parents (family member/close friend). In
India, surrogacy is an accepted practice in society and it’s mention is also
found in mythological text such as Mahabharata. Surrogacy has a complex
history dating back centuries. The first recorded surrogacy-like arrangement
traces back to biblical times with the history of Sarah and Abraham in the
book of Genesis. However, modern surrogacy as we know it emerged in the 1970s
when the concept gained attention through legal and medical developments. The
famous ‘’Baby M’ case in the 1980s brought surrogacy into the public eye. This
case involved a traditional surrogacy arrangement where the surrogate used her
own egg to conceive the chid she carried for the intended parents. Legal
battles and ethical debates arose, leading to changes in legislation and the
differentiation between traditional and gestational surrogacy. Gestational
surrogacy, where the surrogate carries a child conceived using the intended
parents ‘or donors’ genetic material, gained more acceptance due to
advancements in s reproductive technology and legal frameworks. today, surrogacy
remains a complex, regulated practice globally, influenced by cultural, ethical,
and legal considerations.
1.
Law related to surrogacy in
India
In a significant move, the Surrogacy
Regulation Act, 2021 has reshaped the landscape of gestational altruistic
surrogacy in India. Let's delve into the key provisions and critical reflections
on this legislative milestone.
·
Defining the Participants: Who Qualifies?
Chapter 1 of the Act id
entifies the main players – the
"intending couple," an infertile married Indian duo, and the
"intending woman," a widow or divorcee aged 35 to 45. The criteria
are stringent, allowing surrogacy only if the couple has no living children or
if existing children face disability or serious health risks. The definition
of a "surrogate mother" has also evolved, outlining eligibility,
restrictions, and a lifeline for her participation.
·
Prerequisites for Surrogacy:
A Medical Indication Mandate, The Act
mandates a medical indication certified by the District Medical Board for
surrogacy cases involving Indian origin, divorced or widowed intending
mothers, charitable purposes, and a prohibition on financial gains.
·
Ethical, Social, and Legal Concerns:
A Critical Analysis
Restrictions Galore
The Act prohibits certain groups
from utilizing surrogacy services, including couples with one child, foreign
nationals, those in live-in relationships, single individuals, and the
LGBTQIA+ community. While the aim is to prevent exploitation, it raises
ethical questions about reproductive autonomy.
·
Deprivation of Reproductive Autonomy
The Act, in its bid to safeguard
against exploitation, shifts from a right-based to a need-based approach. This
sparks concerns about individuals' freedom to decide on having children,
limiting choices based on governmental decisions rather than personal rights.
·
Women's Rights
A paradox emerges as unmarried
women, although legally permitted to undergo abortions, are barred from
availing surrogacy services. This raises questions about reproductive
autonomy, especially when considering instances where surrogacy has provided
women with financial independence and a dignified life.
·
LGBTQIA+ Community Exclusion
Homosexual couples find themselves
excluded from altruistic surrogacy, despite legal strides recognizing LGBTQIA+
rights. The Act's stance, rooted in societal norms and legal gaps, raises
concerns about discrimination and the denial of fundamental rights to this
community.
·
Live-in Relationships - Live-in partners, recognized and
protected by Indian courts, surprisingly fall outside the Act's regulatory
scope. This exclusion appears incongruent with legal precedents supporting the
legitimacy of such relationships.
·
The
Surrogacy Regulation Act, 2021, while aiming to protect against exploitation
and ensure ethical practices, faces criticism for its restrictive nature.
Critics argue that it limits individual autonomy, excludes certain
demographics, and perpetuates societal norms that may not align with evolving
legal perspectives.
As India continues to grapple with
these complex issues, the need for a nuanced, inclusive, and rights-based
approach becomes increasingly apparent. Striking a balance between protecting
all parties involved and promoting inclusivity should be at the forefront of
any surrogacy legislation, paving the way for a more ethically sound and
socially just future.
2.
Controversy related to
surrogacy law in India
The debate over surrogacy
legislation is intensifying in the House, with concerns rising over the
potential surge in illicit surrogacy practices as commercial surrogacy faces
prohibition. This article explores the multifaceted challenges and ethical
considerations surrounding surrogacy, advocating for a balanced approach that
safeguards human rights while addressing the complexities of the industry.[4]
1. The Dilemma of Forced Labour:
With the outlawing of commercial
surrogacy, there is a fear that exploitative practices may rise, exemplified
by cases of minors allegedly forced into selling their eggs. Article 19(1) is
invoked, arguing that prohibiting commercial surrogacy infringes on the right
to earn a livelihood, exacerbating poverty. The article proposes a compromise
through "compensatory surrogacy" under stringent legislation to
protect human rights and deter exploitation.
2. Health Implications for Surrogate Mothers and Fetuses:
The article sheds light on the
lacunae in the current Act regarding health implications for surrogate mothers
and fetuses. Concerns include teratogen and maternal drug abuse, the risk of
venereal diseases, and the increased incidence of postpartum complications.
The need for comprehensive screening of intending parents and addressing
long-term health risks is emphasized.
3. Unseen Mental Health Implications:
While the Act assesses the
psychological eligibility of surrogate mothers, it fails to address potential
post-implantation psychiatric disorders. The article advocates for a formal
psychiatric assessment to ensure holistic healthcare. Studies highlighting
mental health issues post-surrogacy, such as postpartum depression, underscore
the importance of addressing emotional dimensions for the well-being of both
surrogate mothers and children.
4. Discrimination on the Basis of "Ableism":
The Act allows surrogacy for couples
with a child diagnosed with an incurable illness, yet lacks clear guidelines
on defining disability limits. The article argues that this ambiguity promotes
discrimination based on ableism. The potential neglect of a disabled child
when a healthy sibling arrives further complicates the ethical landscape.
5. Downfall of Procreative Medical Tourism:
Banning foreigners from availing surrogacy
services in India has led to a decline in procreative medical tourism. The
article highlights the economic aspects overlooked by the current Act,
emphasizing the altruistic model's failure to provide economic advantages to
women from poor backgrounds. It suggests finding alternatives that balance
economic considerations while preventing exploitation.[5]
6. Short-term Disability Insurance Coverage:
Introducing short-term disability
insurance coverage is proposed as a viable solution to compensate surrogates
for lost wages. The article discusses the benefits of this program and
suggests additional financial funding and legal representation for surrogates
to address ethical concerns.
As the House grapples with surrogacy
legislation, this article calls for a nuanced approach that acknowledges the
complex interplay of human rights, economic considerations, and health
implications. Striking a balance between altruism and rights is essential to
create a comprehensive legal framework for surrogacy that protects all
stakeholders involved.
Ø Landmark cases related to
Surrogacy in India
Jan Balaz v. Anand Municipality[6]is
a pivotal case in Indian surrogacy law. The petitioner, a German national,
entered into a surrogacy agreement with an Indian woman in 2008, resulting in
the birth of a child in Gujarat, India. Despite obtaining a birth certificate,
authorities prevented the petitioner from leaving India with the child.
Initially, the Gujarat High Court denied the petitioner's request, expressing
concerns about the child's welfare and the legality of commercial surrogacy in
India. However, after deliberation, the court granted permission for the
petitioner to leave with the child, subject to specific conditions. This case
drew attention to the complexities of commercial surrogacy in India and
underscored the necessity for more comprehensive laws and regulations
governing surrogacy agreements, emphasizing the importance of safeguarding the
well-being of children born through surrogacy.
In the case of Baby Manji Yamada v.
Union of India[7]a
surrogate baby born to a Japanese couple through an Indian surrogate mother
became the focal point. Subsequent to the couple's divorce, the mother
declined custody, and the father faced challenges obtaining a visa to enter
India and retrieve the child. This legal scenario prompted inquiries into the
legal status and rights of surrogate children, as well as the responsibilities
of surrogacy clinics and intended parents. Ultimately, the Supreme Court
directed the Japanese consulate in India to issue travel documents for the
child, facilitating her journey to Japan. Additionally, the court recommended
that the Indian government establish regulations to govern surrogacy within
the country. This case underscored the need for a legal framework addressing
the intricacies of surrogacy arrangements and outlining the responsibilities
of all parties involved.
Ø Controversy related to surrogacy law in India
The debate over surrogacy
legislation is intensifying in the House, with concerns rising over the
potential surge in illicit surrogacy practices as commercial surrogacy faces
prohibition. This article explores the multifaceted challenges and ethical
considerations surrounding surrogacy, advocating for a balanced approach that
safeguards human rights while addressing the complexities of the industry.[8]
1. The Dilemma of Forced Labour:
With the outlawing of commercial
surrogacy, there is a fear that exploitative practices may rise, exemplified
by cases of minors allegedly forced into selling their eggs. Article 19(1) is
invoked, arguing that prohibiting commercial surrogacy infringes on the right
to earn a livelihood, exacerbating poverty. The article proposes a compromise
through "compensatory surrogacy" under stringent legislation to protect
human rights and deter exploitation.
2. Health Implications for Surrogate Mothers and Fetuses:
The article sheds light on the
lacunae in the current Act regarding health implications for surrogate mothers
and fetuses. Concerns include teratogen and maternal drug abuse, the risk of
venereal diseases, and the increased incidence of postpartum complications.
The need for comprehensive screening of intending parents and addressing
long-term health risks is emphasized.
3. Unseen Mental Health Implications:
While the Act assesses the
psychological eligibility of surrogate mothers, it fails to address potential
post-implantation psychiatric disorders. The article advocates for a formal
psychiatric assessment to ensure holistic healthcare. Studies highlighting
mental health issues post-surrogacy, such as postpartum depression, underscore
the importance of addressing emotional dimensions for the well-being of both
surrogate mothers and children.
4. Discrimination on the Basis of "Ableism":
The Act allows surrogacy for couples
with a child diagnosed with an incurable illness, yet lacks clear guidelines
on defining disability limits. The article argues that this ambiguity promotes
discrimination based on ableism. The potential neglect of a disabled child
when a healthy sibling arrives further complicates the ethical landscape.
5. Downfall of Procreative Medical Tourism:
Banning foreigners from availing
surrogacy services in India has led to a decline in procreative medical
tourism. The article highlights the economic aspects overlooked by the current
Act, emphasizing the altruistic model's failure to provide economic advantages
to women from poor backgrounds. It suggests finding alternatives that balance
economic considerations while preventing exploitation.[9]
6. Short-term Disability Insurance Coverage:
Introducing short-term disability
insurance coverage is proposed as a viable solution to compensate surrogates
for lost wages. The article discusses the benefits of this program and
suggests additional financial funding and legal representation for surrogates
to address ethical concerns.
As the House grapples with surrogacy
legislation, this article calls for a nuanced approach that acknowledges the
complex interplay of human rights, economic considerations, and health implications.
Striking a balance between altruism and rights is essential to create a
comprehensive legal framework for surrogacy that protects all stakeholders
involved.
Ø Landmark
cases related to Surrogacy in India
Jan Balaz v. Anand Municipality[10]is
a pivotal case in Indian surrogacy law. The petitioner, a German national,
entered into a surrogacy agreement with an Indian woman in 2008, resulting in
the birth of a child in Gujarat, India. Despite obtaining a birth certificate,
authorities prevented the petitioner from leaving India with the child.
Initially, the Gujarat High Court denied the petitioner's request, expressing
concerns about the child's welfare and the legality of commercial surrogacy in
India. However, after deliberation, the court granted permission for the
petitioner to leave with the child, subject to specific conditions. This case
drew attention to the complexities of commercial surrogacy in India and
underscored the necessity for more comprehensive laws and regulations
governing surrogacy agreements, emphasizing the importance of safeguarding the
well-being of children born through surrogacy.
In the case of Baby Manji Yamada v.
Union of India[11]a
surrogate baby born to a Japanese couple through an Indian surrogate mother
became the focal point. Subsequent to the couple's divorce, the mother
declined custody, and the father faced challenges obtaining a visa to enter
India and retrieve the child. This legal scenario prompted inquiries into the
legal status and rights of surrogate children, as well as the responsibilities
of surrogacy clinics and intended parents. Ultimately, the Supreme Court
directed the Japanese consulate in India to issue travel documents for the
child, facilitating her journey to Japan. Additionally, the court recommended
that the Indian government establish regulations to govern surrogacy within
the country. This case underscored the need for a legal framework addressing
the intricacies of surrogacy arrangements and outlining the responsibilities
of all parties involved.
Conclusion
The surrogacy laws in India have
undergone changes over time. As of my last update, commercial surrogacy was
banned in India, allowing only altruistic surrogacy for Indian citizens. The
law prohibited foreigners, unmarried couples, single individuals, and same-sex
couples from seeking surrogacy services in india.However, laws can change, and
its essential to check the latest regulations and guidelines from official
government sources or legal experts to understand the current statues of surrogacy
laws in India.
Bibliography
Pahuja, R. (15 Feb 2021). Surrogacy Law, Practice and
Policy in India. (1st, Ed.) mumbai: Bloomsbury Publishing.
DasGupta,
Sayantani; Dasgupta, Shamita Das (eds.) (2014), Globalization and
Transnational Surrogacy in India: Outsourcing Life, Lanham: Lexington
Books, 258 pages.
[1] Mother or nothing: the agony of
infertility. Cui W. Bull World Health Organ. 2010;88:881–882. [PMC free
article] [PubMed]
[2] Surrogate parenting: analysis and
recommendations for public policy. Hartshorn MA. JAMA. 1989; 261:1811.
[3] Ministry of Law and Justice,
Government of India. The Surrogacy (Regulation) Act. [ Apr; 2023 ]. 2021.
https://dhr.gov.in/document/acts-circulars/surrogacy-regulation-act-2021
[4] Chhagani N. International
surrogacy countries for parents. [Jul; 2022]. 2019 https://www.ivfconceptions.com/international-surrogacy-countries/
[5] Daniyal S. As clamour to ban
conversion grows, a reminder: five Indian states have already done so. [Jul;
2022]. 2014.
https://vedkabhed.com/index.php/2014/10/09/as-clamour-to-ban-conversion-grows-a-reminder-five-indian-states-have-already-done-so/
[8] Chhagani N. International
surrogacy countries for parents. [ Jul; 2022 ]. 2019
https://www.ivfconceptions.com/international-surrogacy-countries/
[9] Daniyal S. As clamour to ban
conversion grows, a reminder: five Indian states have already done so. [ Jul;
2022 ]. 2014.
https://vedkabhed.com/index.php/2014/10/09/as-clamour-to-ban-conversion-grows-a-reminder-five-indian-states-have-already-done-so/