Open Access Research Article
SURROGACY REGULATION: LEGAL AND ETHICAL ISSUES
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SURROGACY REGULATION: LEGAL AND
ETHICAL ISSUES
AUTHORE BY
- YASHRAJ MISHRA
ABSTRACT
This paper is a summarization,
comparison and critique of the legislations, policies and sanctions dealing
with regulation of surrogacy in the country, particularly Surrogacy
(Regulation) Act 2021. It aims to explore legal measures that could be proposed
to ensure fairness and equal opportunities for individuals seeking surrogacy
arrangements. By questioning the existing eligibility criteria, the paper aims
to identify legal remedies that promote equitable access to surrogacy services,
including study of commercial surrogacy, and address concerns arising from the
current restrictive framework. It critically evaluates the Act's impact on the
surrogacy landscape, the rights of intended parents and surrogate mothers, and
the overall ethical framework underpinning surrogacy arrangements. Through this
analysis, it aims to identify legal and ethical frameworks that can guide the development
of a comprehensive approach to surrogacy regulation, striking a delicate
balance between safeguarding surrogate mothers against exploitation and
ensuring fair compensation and protection for all parties involved. The methodology
undertaken for the research of this topic is analysis of the Act and its
consequences by using published articles from reputed journals from around the
world and statistical data from verified sources. Through this paper, multiple suggestions
have been made about how to evolve the traditional surrogacy regulation framework
in order to support the aggrieved by analysing various case-law, legislations,
rules, regulations, etc.
Keywords: Surrogacy;
Commercial Surrogacy; Surrogate Mothers; Intended Parents.
INTRODUCTION
With the purpose of carrying the
pregnancy to the term and giving the child to the biological parents for whom
she is serving as a surrogate, a woman accepts to carry a pregnancy that is
genetically unrelated to her or her spouse. This is basic concept of surrogacy
as a practice, which could be altruistic or commercial in nature.
Fundamentally, a surrogate mother
bears the child of another couple throughout the gestation period of the baby. Once,
the gestation period is completed and the child is delivered, the infant is
supposed to be handed over to the actual parents. This can be done as a result
of financial motives or due to selfless concerns of well-being. Because there
is a law-obligated arrangement with the woman to deliver birth to a baby
and transfer full parenting rights to the intended parents, it is also known as
a “contract pregnancy”.
Development of its legal framework
internationally. A study conducted by the PRS Legislative Research, compared
the laws and regulatory guidelines in the Indian Surrogacy Bill 2016 with
surrogacy laws in various countries such as Netherlands, UK, South Africa,
Greece, and Russia. This research provides with a fundamental idea of the
international framework of surrogacy regulations. The following are some of the
categories considered for the comparison of the countries’ frameworks[1]:
1. Type of
surrogacy allowed: The Bill prohibited commercial surrogacy and only allowed
altruistic surrogacy to take place. Commercial surrogacy is similarly
prohibited in Netherlands, UK, South Africa and Greece. However, commercial
surrogacy is allowed to take place in Russia.
2. Payment to
the surrogate: As per the 2016 Bill, medical expenses and insurance are covered
for the surrogate. In Netherlands, reasonable expenses related to IVF, the
pregnancy, delivery, those expenses not covered by insurance, adoption,
insurance and legal charges. In the UK, reasonable expenses excluding payment
for the benefit of the surrogate mother. South Africa provides medical expenses
and insurance coverage and compensates for any loss of earnings due to
surrogate pregnancy. Greece provides expenses related to the pregnancy, the
gestation, delivery and the post-partum period and provides compensation for
any loss due to pregnancy to the surrogate mother. However, in Russia, there is
no limit on the payment provided to the surrogate.
3. Eligibility
criteria for commissioning parent: Out of all the countries in the study, only
the Indian Bill had the mandate of being married. Other criteria considered
under this category were – citizenship or residency and existence of medical
reason.
4. Eligibility
criteria for surrogate mother: There was a restriction in the Indian Bill that
the number of times a female can be a surrogate is only once, which is not the
case for the other countries. The other conditions in the Bill stated that the
surrogate mother can only be a close relative; there was a requirement to be
married; there should be at least one child of her own; etc. However, there was
no provision for the consent required of the surrogate mother’s partner.
Whereas, in Netherlands and the UK, the consent was not required; and in South
Africa, Greece and Russia the consent was required.
HISTORY OF SURROGACY REGULATIONS IN
INDIA
Surrogacy capital. India is
considered as the “Surrogacy capital” of the world and were a leader in the
surrogacy market due to its legal absences and cheaper donor fees. It was not
formally subject to any set of regulations. Legislators in India did not
attempt to formalise the 2002 legalisation of commercial surrogacy until 2008.
As a result, until that point, surrogacy functioned lacking a defined
legislative structure.
The surrogacy regulatory framework in
the country has developed as a result of landmark cases and evolving
legislations. These have provided foundations for the need of such framework
and for the expansion of its scope to include various facets of surrogacy as a
concept – such as commercial surrogacy; altruistic surrogacy; interests of
intended parents; interests of surrogates; etc.
In the case of Baby Manji Yamada vs
Union of India[2], the
Court decided that the Commission for Protection of Child Rights Act, 2005
served as the appropriate place to file concerns about surrogacy abuse and its
illegality in India. The Court further declared that as Baby Manji was not the
subject of any complaints, the order compelling her to appear before the Court
was unconstitutional. The Regional Passport Authority granted her request for a
passport in order to make it easier for her to leave Indian Territory. Ultimately,
the Indian Supreme Court had to step in and grant Manji's permission for
travelling abroad with the grandmother. Following this case, the
SC of India ruled in 2008 that surrogacy is legal in India. This decision
increased worldwide trust in surrogate reproduction in India.
In the case of Jan Balaz v. Anand
Municipality[3], there
was couple from Germany who got twins from a surrogate in India. The German
commissioning parents approached the Gujarat High Court to authorise their
surrogate twins with an Indian passport in order to prevent the impending legal
challenges posed by immigration laws. According to the Gujarat HC, a child born
to a surrogate mother will have the surrogate mother's identity instead of the
biological mother’s and he or she must be authorised with an Indian passport
that proves they are citizens of India. The surrogate mother was then required
to hand over the children to German couples for adoption.
These case-law provided a basis for
the Indian legislators and policymakers to formulate a structured basis for
controlling surrogacies in India. The Manji case started this movement since it
was the first ever case in which the Apex Court delivered a judgement related
to surrogacy. These judgements sparked a focused approach in
education, which led to the passing of a surrogacy laws in the
country that exclude foreign nationals attempting to
get surrogate mothers from India without following certain procedures.
Thousands of families are travelling
to India, because there is less bureaucracy and excellent medical care, to
avoid the complicated and costly surrogacy procedure in the Western countries.
In India, this procedure is simple, affordable, and effortless. India
legalised commercial surrogacy in 2002 as a component in its efforts to
encourage medical tourism, a sector in business which the Confederation of
Indian Industry estimates is worth US$2.3 Billion yearly.[4]
In 2009, the Law Commission of India
in its 228th report included a revised legislative proposal to control the
procedure of surrogacy in India. It suggested prohibiting the practise of
commercial surrogacy and adopting appropriate legislation that permits
ethically aligned altruism-based surrogacy. Additionally, it also promoted
proactive legislative action to support responsible applications of the
recently developed Assisted Reproductive Technologies (ART).[5]
This was followed by formulation of
several Bills and subsequent statutes that regulated the surrogacy procedure. According
to Surrogacy (Regulation) Bill 2019[6],
surrogacy is the practise of a woman carrying a child for another couple with plans
to give the newborn back to them when the child is born. While altruistic
surrogacy is permitted, commercial surrogacy is prohibited. Under this Bill, a
certificate of eligibility and a certificate of essentiality for factual proof
were to be granted.
According to the Surrogacy
(Regulation) Act 2021[7],
a woman who is 35 to 45 years old who has become a widower or has
ended up divorcing her spouse, or a married couple who is lawfully
married, may undergo surrogacy if she has a medical problem that justifies it.
It also prohibits the use of surrogates for profit through commercial
surrogacy, a crime that carries a maximum fine of 10 Lakh Rupees along
with a 10-year prison sentence. Altruistic surrogacy is allowed by
this legislation in situations where it involves no financial exchange and
where the intended parents have a genetic link to the surrogate mother.
ISSUES ASSOCIATED WITH THE
SURROGACY (REGULATION) ACT 2021
Since the Surrogacy (Regulation)
Act 2021 only acknowledges altruism, this implies that the surrogate
receives no compensation other than any costs that may be required or expended
as a result of healthcare or insurance protection.[8] In
order to handle nationality and citizenship concerns that frequently arise
when a surrogacy is requested by a couple from abroad, surrogacy is now
exclusively available to Indian citizens. Even though this is the single
positive change, the Act is characterised by restricting, inflexible, and vague
requirements.
The Act solely acknowledges
altruistic surrogacy and prohibits commercial surrogacy. Altruistic surrogacy
refers to surrogates receiving no compensation other than any costs that may be
mandated or expended as a result of their insurance or healthcare requirements.
Additionally, commercial surrogacy is now illegal according to the Act.
Concerning the potential for a surrogate's exploitation, regulations around the
surrogacy procedure are crucial. However, regulations and controlling
legislations are not the same as outright prohibiting commercial
surrogacy.[9]
Since same-sex marriages are
still illegal in India, fewer same-sex couples can meet the requirements
outlined in Section 2(h) of the Act. The clause additionally emphasises that a
relationship must consist of a male and a female, restricting the capacity
to use surrogacy procedures to married heterosexual couples only.[10] In
addition to restricting beneficiaries according to the Act to heterosexual
married couples, it unfairly distinguishes its stance towards a
number of individuals, including unmarried women who are not included in the
term of “intending woman”, which only includes widows and divorcees, non-binary
and same-sex couples, and unmarried and single men.
The financial compensation given to
the surrogate mother is one way that commercial surrogacy varies from
altruistic surrogacy. The surrogate mother receives remuneration in addition to
her medical costs, unlike in altruistic surrogacy when the surrogate mother's
only compensation is her healthcare expenses. The very sum of something more
than the healthcare bills is what entices women to serve as surrogate
mothers for prospective commissioning couples. A strong educational programme
may be suggested as a useful way to increase awareness of the surrogates and
the commissioning parents and making them realise the changes that are brought
about from undertaking surrogacy.[11]
The goal of commercial surrogacy is
to provide financial security to one family and biological children to the
other. However, it ultimately puts in risk the status of the two primary
participants in the procedure, that is, the surrogate and the kid who was
conceived and delivered through the surrogate mother. Since those whose
interests most need to be protected are also the least able to participate in
the process, the courts and the legislature bear a higher responsibility in
this regard.
Commercial surrogacy produces
benefits for the intended parents. It happens as a result of them receiving the
best surrogate selection. It is reasonable because when
they consider that a surrogate has less incentive to include you in
the pregnancy if you do not compensate her for her labour or efforts. For
intended parents, the biggest advantage of commercial surrogacy is that a
consultant organization will assist them through every step from
beginning to end.
The surrogates gain from commercial
surrogacy as well. Surrogacy may be quite expensive. The surrogate is
going to have greater access to services and monetary assistance if the
pregnancy is the result of a commercial surrogacy. She may not receive an
increased compensation as a result of this. Rather, this entails
additional assistance for any unforeseen circumstances that may occur, such
time off from work and a variety of other costs. Furthermore, not all commercial surrogates
are only motivated by financial gain. By assisting someone else in becoming a
parent for the first time, many surrogates experience a profound sense of
fulfilment.
On the other hand, following the
birth, interaction with the child or the intended parents is usually
prohibited in commercial surrogacy. Since they are carrying the intended
parents' child, surrogate mothers are typically well-cared for throughout
pregnancy. But once the baby is born, the surrogate mother loses her
eligibility to interact because her competencies are no more needed. The
surrogate gives up her rights to the infant she carried after receiving
compensation. However, cutting off communication could be harmful to the child
as well as the surrogate mother. Since, she is the child's biological
mother, the surrogate mother is significant. Another major concern is that
children should have the opportunity to be aware of who their surrogate
moms are.
Altruistic surrogacy by
same-sex couples is prohibited by the 2021 Act. It perpetuates a
preconceived notion of families by assuming that women lack independence and
perpetuating a domestic structure which promotes heterosexuality. For a child
to mature fully, both parents must be of different sexes, according to Indian
law, society norms, and the teachings of religion. Against this perspective,
the concept's deception stems from the reality that it allows widowed and
divorced women to use ART services. This is unjust since it keeps the LGBTQIA+
population outside of the surrogacy industry.[12]
This is another blatant issue with
the Act, that is, its lack of inclusivity – whether be it imposing restrictions
on who can avail surrogacy or be it exclusion of same-sex and homosexual
couples. For instance, it forbids an unmarried single woman from
contracting a surrogate. A single woman should not be prevented from being a
mother for whatever reason. Such a discrepancy makes little sense in respect to
the goal that the Bill seeks to accomplish. The paradox in this situation is
that, in spite of the law's apparent embrace of modernity, it actually serves
to uphold the traditional stigma of accepting motherhood without marriage.
COURSE OF ACTION
Developing an international policy
framework for surrogacy is incredibly challenging. It is so clear that an
international agreement on surrogacy may not be achievable, and unfortunately
most of the policies pertaining to surrogacy must be regional or, at the very
least, nation specific. One major challenge is that we are unable to predict
whose ethical standards will be prioritised in any future international policy.
It may be argued that any policy action at all is ethnically focused.
Furthermore, as surrogacy is deeply rooted in local economies and histories,
changes must be made to the way business is handled in general, not just in
relation to the surrogacy sector.[13]
Protecting the interests of
surrogate mothers and other women considering surrogacy requires a robust
structure of law and is absolutely necessary. When it comes to the problem of
women being exploited, words like "commercial" and
"ethical" have no real meaning because they lack precise definitions.
It is critical to realise that surrogacy charges are paid for services rendered
instead of paying them for the profit of the surrogate mother. If the
surrogate views the pay as profit, then is a very different story. This is
an issue of comprehension, and raising women's status through education
and awareness may be one of the solutions.[14]
The following are the suggestions
that may help in removing the identified lacunae in the Surrogacy (Regulation)
Act 2021:
1. Rather than
prohibiting commercial surrogacy, the appropriate bodies should set pricing for
the services provided by surrogate mothers and prevent any form of negotiation.
If there is a fixed price in place, it may significantly reduce the problem of
compensation to the surrogate mother and her efforts as a bearer of the
intended parents’ child will not be underappreciated. This may also lead to
increase in involvement of the intended parents in the procedure who may look
after the surrogate and provide her direct support.
2. There
should be formulation of new clauses and policies that include all those people
who have a genuine desire to become a parent. There should be modification of
clauses to include same-sex couples and unmarried women. This should be done to
further the main goal of the Act itself, which is, an effort to balance the
divergent interests that comprise the surrogacy procedure. The Act may not be
aligning with the constitutional principles of equality and liberty at its
current form.
3. Setting a
minimum age for prospective parents is unreasonable given the purpose of the
Act. For individuals who are prepared to take on parenthood but are older
than the specified age, this is unfair. As a result, this clause must be
modified in order to prevent discrimination in terms of age, which may prevent
a parenthood to an individual or a couple.
4. Epstein
suggests a “maternalistic” strategy for surrogacy in its place. This strategy
relies on the notion that the government has a responsibility to safeguard the
best interests of children and that surrogacy agreements ought to be
scrutinized for the possible impacts on the welfare of the baby.[15]
5. Psychologists
should be consulted by surrogate mothers to provide guidance along their
journey. They need to educate her about surrogacy, address any concerns she may
have, and support her in maintaining her mental health. At the same time, she
needs to supported financially throughout the pregnancy outside of the already
agreed upon compensation fee based on contract.
CONCLUSION
The way the Indian surrogacy sector
affects the socioeconomic circumstances of the women involved. A large number
of surrogate mothers come from remote regions of extreme poverty and want to
improve the economic status of their family. However, it can
be argued that the surrogacy industry often perpetuates
discrimination and maintains gender stereotypes. For example, women who serve
as surrogates are often condemned and ostracised by the general public due to
their inclination to marry and have children of their very own.[16]
The Act requires revision since
it appears to be significantly out of step with the progressive stances of
higher constitutional courts, that have consistently placed the utmost
importance on women's reproductive independence and every citizen's freedom to
procreate. For the legislation to operate smoothly, effectively, and
without difficulty, it must be made more inclusive of the various segments of
the population that were unfairly left out. It also has to be clear who has the
right to make decisions on jurisdiction. Furthermore, prohibiting commercial
surrogacy completely is neither an alternative nor a goal that will be achieved.
To become an even broader instrument
of law that promotes a welcoming and equitable society, the Act must be
amended. This can be accomplished by admitting the flaws, dealing with the
issues, and finally resolving the legal issues through arbitration in order to
safeguard the needs of all parties involved. To be relevant and successful in
resolving the issues concerning surrogacy and ensuring protection of the
fundamental rights of the people, the updated regulations and rules must
additionally take into consideration shifting sociological trends.
[1] International comparison of
surrogacy laws, PRS Legislative Research, https://prsindia.org/billtrack/prs-products/international-comparison-of-surrogacy-laws-2713
[2] Baby Manji Yamada vs Union of
India & Anr (2008) 13 SCC 518
[4] Priya Shetty, World Report “India’s unregulated surrogacy industry”, 380, The
Lancet, 1633–1634 (2012)
[5] 228th Law Commission of
India Report, 2009
[6] Surrogacy (Regulation) Bill
2019
[8] Surrogacy (Regulation) Act
2021, Acts of Parliament, 2021 (India)
[9] Diksha Tekriwal, “Lacunae in
the Surrogacy (Regulation) Act, 2021”, The Leaflet (November 2, 2023, 11:30
PM), https://theleaflet.in/lacunae-in-the-surrogacy-regulation-act-2021/
[11] Diksha Munjal-Shankar, “COMMERCIAL
SURROGACY IN INDIA: VULNERABILITY CONTEXTUALISED”, 58, Journal of the
Indian Law Institute, 350-366 (2016)
[12] Narayan G, Mishra H, Suvvari T, et
al. “The Surrogacy Regulation Act of 2021: A Right Step Towards an
Egalitarian and Inclusive Society?”. Cureus 15(4): e37864.
doi:10.7759/cureus.37864 (2023)
[13] Marcin Smietana, Sharmila Rudrappa
and Christina Weis, “Moral frameworks of
commercial surrogacy within the US, India and Russia”, Vol. 29, Sexual and
Reproductive Health Matter,377-393 (2021)
[14] Mrinal Barua, “Surrogacy Debate”, Vol. 51, Economic and Political Weekly, 4-5
(2016)
[15] Richard A Epstein, “Surrogacy:
The Case for Full Contractual Enforcement”, 81, Virginia Law Review 2305
(1995)
[16] Amrita Pande, “Commercial Surrogacy in India: Manufacturing a Perfect Mother?Worker”,
Vol. 35, Signs, 969-992 (2010)
Article Information
SURROGACY REGULATION: LEGAL AND ETHICAL ISSUES
Authors: YASHRAJ MISHRA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/17
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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