This Article is dealing with the topic “SURROGACY” especially in India, discussing about the transparent legality of the 'SURROGATE MOTHERHOOD' and it's legal Aspects in India.
Surrogacy is a form of third-party reproduction in which a woman consents to carry a pregnancy for intended parent(s) who cannot conceive for medical reasons or those who are a gay couple.
There are two forms of surrogacy: traditional surrogacy and gestational surrogacy. Traditional surrogacy uses the surrogate mother’s egg for conception. In contrast, gestational surrogacy is performed by transferring embryos made through IVF with eggs from the intended mother or a donor.
Thus, the advent of IVF has assisted gestational surrogacy. However, pregnancy and gestation involve psychological burden and health risks for the surrogate mother. Moreover, the legal procedures for parenthood following surrogacy are complicated due to the typical legal assumption that a woman giving birth to a child is the legitimate mother of the child. Therefore, a surrogate mother is required to formally abandon parental authority, and the intended parent(s) then adopt the child born. Surrogate mother is the substitute for the genetic-biological mother.
Commercial surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents.
INTRODUCTION
surrogacy is an “arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention of carrying it to term and handing over the child to the person or persons for whom she is acting as surrogate; and a ‘surrogate mother’ is a woman who agrees to have an embryo generated from the sperm of a man who is not her husband, and the oocyte for another woman implanted in her to carry the pregnancy to full term and deliver the child to its biological parents(s)”.
- INDIAN JOURNAL OF MEDICAL SCIENCE
Surrogacy is not a new concept in Indian society. Instances can be traced to the mythological surrogate mothers such as Yashoda and Gandhari. The prehistoric urge to have a biological child of one’s own DNA with help of the advanced technology coupled with the commercial aspect provided by the Artificial Reproductive Technique (ART) clinics and allied services have resulted in the 5000-million-dollar reproductive tourism industry in India. The Black’s Law Dictionary defines surrogacy as “the process of carrying and delivering a child for another person’s” . In the simplest terms, it is an act of having a child with the aid of another individual, with the help of advanced medical facilities. (1)
Surrogacy – in which another woman carries and gives birth to a child for a couple who want to have a baby but are unable to do so – has been in the grey legal area in India. The need for the Surrogacy (Regulation) Bill, 2016, came after India emerged as a surrogacy hub for couples and the increased number of incidents reported on unethical practices. The Bill prohibits commercial surrogacy, which includes stopping foreigners from commissioning surrogacy in India, while making it illegal for single parents, gay couples and those in live-in relationships to opt for surrogacy. Though, not an extremely common practice among Indians, Bollywood celebrities such as Tusshar Kapoor, Shah Rukh and Gauri Khan, Aamir and Kiran Rao Khan, and Sohail and Seema Sachdeva Khan have all turned to surrogates to expand their families. This is probably the trend says, “what was started for convenience has become a luxury… Big celebrities who not only have one but two children, a son and a daughter, even then they went ahead with surrogacy” today. Though many may cry at the unfairness of the MEA minister’s statement, people do agree that there is a dire need to streamline and clear the ambiguity around surrogacy and IVF rules and laws. With the Bill being a positive step in that direction, it’s also important to understand – from a medical stand-point – what is surrogacy and what should one know before opting for it. (2)
Couples opt for surrogacy when traditional means of conceiving a child have failed, this also includes in-vitro fertilisation, or it is dangerous for the couple to get pregnant and give birth. The following medical conditions usually necessitate surrogacy:
Malformation of or infection in the womb
Absence or removal of womb by hysterectomy
Recurring miscarriages
Repeated failure of IVF
Other conditions that make impossibly or risky for a woman, such as severe heart disease.
It is important to make sure the surrogate mother is healthy and ideally between 21 and 40 years old.
Other than general fitness levels such as blood pressure, sugar levels, thyroid, etc., one should check for the the mental health of the surrogate.
It is also advisable that the surrogate should have already given birth to one healthy baby before.
The couples can also take help from close relatives. Many might remember the character of Phoebe in the popular US TV series F.R.I.E.N.D.S. who was the surrogate mother for her brother Frank Jr’s triplets. (3)
SURROGACY STATUS IN INDIA
The industry of Commercial surrogacy has been largely unregulated and perceived to be the root cause of all evil that plagues surrogacy in India. Therefore, the Bill of 2020 highlights that the legislation aims to curb the unethical practices of commercial surrogacy including the exploitation of surrogate mothers. In this way, the Bill of 2020 makes a departure from the Bills of 2008 and 2014 which permitted commercial surrogacy.
The roots of surrogacy can be traced long back in India. The world’s second and India’s first IVF (In Vitro Fertilization) baby Kanupriya alias Durga was born Kolkata on October 3, 1978. Since then the field of assisted reproductive technology (or ART) has shown some fastest developments.
In 1986, surrogacy encountered its first legal hurdle in the Baby M case, when upon giving birth to the child, a traditional surrogate decided that she wanted to keep the child. After two year long legal eventually resulted in the intended parents retaining custody. This landmark case raises many legal questions on the practice of surrogacy. But legally the laws related to surrogacy are in the nascent stage.
India legalized commercial surrogacy in 2002. This legislation assisted the emergence of an industry that attracted international attention to India’s reproductive market. India has proved itself to be one of the most famous surrogacy destinations preferred internationally. This paved a way for the women exploitation, abandonment of children born out of surrogacy and unethical practices.
The 228th report of Law Commission of India has recommended for prohibiting commercial surrogacy and allowing altruistic surrogacy citing concerns over the prevalent use of surrogacy by foreigners and lack of proper legal framework resulting in exploitation of the surrogate mother who may be coerced to become a surrogate due to poverty and legal education.
In 2016, Surrogacy (Regulation) Bill, 2016 proposed in the parliament. The Bill provisioned the establishment of national and state-level surrogacy boards. Surrogacy (Regulation) Bill, 2019 reintroduced and passed by the Lok Sabha which was referred to the Select Committee of Rajya Sabha. The latest Bill is incorporated with all the recommendations of the Selection Committee and the Union Cabinet has approved it as the Surrogacy (Regulation) Bill, 2020. (4)
SURROGACY AND IT'S PROVISIONS (REGULATIONS) IN INDIA
The Surrogacy (regulation) bill, 2016 was introduced in Lok Sabha on 21st November, 2016 and on 12th January, 2017 it was referred to standing committee. Thereafter, on 10th August 2017, the committee gave its report on the same to Lok Sabha and on the basis of that report Lok Sabha passed the bill on 19th December 2018. The Surrogacy bill, 2016 focuses on prevention of commercial surrogacy and promotion of altruistic surrogacy. The bill also safeguards the surrogate mother and child from exploitation. Surrogacy is a way by which an infertile married couple who are eligible in accordance with the provisions of the bill can now bear a child with help of a surrogate mother eligible as per provisions of the bill. However, the surrogate mother will not be given any monetary benefit or compensation for renting her womb to intended couple except her medical and insurance expenses during pregnancy. The proposed legislation provides for registration of surrogacy clinic and establishment of National and State surrogacy board and Appropriate Authority.(5)
(Section 2) provides the various definitions used in the Bill such as “Altruistic Surrogacy (no charge or fees or expenses)”, “commercial surrogacy (surrogacy by way of giving payment, reward, benefit, fees)”. It also defines “intending woman” as an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy.
(Section 3) deals with “Parentage and abortion of surrogate child” in which, a child born by surrogacy procedure will be deemed to be the biological child of the intending couple or intending woman. For the abortion of the surrogate child, it requires the written consent of the surrogate mother and the authorization of the appropriate authority. This authorization must be according to the Medical Termination of Pregnancy Act, 1971. Further, before the embryo is implanted in her womb, the surrogate mother will have an option to withdraw from surrogacy.
(Section 4 -10) When an intending couple or intending women of India has a medical indication for gestational surrogacy for any condition or disease specified through regulations. Eligibility criteria for intending couples which include ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority. "Rights of surrogate child” in which, the child will be entitled to all the rights and privileges available to a natural child under any law for time being in force.
(Section 11-14) deals with “Registration of surrogacy clinics” by the appropriate authority in order to undertake surrogacy or its related procedures within a period of 60 days from the date of appointment of the appropriate authority. “Registration of certificates” which are valid only for three years and will be renewed. “Cancellation or suspension of registration” by the appropriate authority if there is any infringement of the provisions of the Act.
(Section 15-32) deal with National and State Surrogacy Board which consists of various members from Parliament, State Legislative Assemblies, Executives, and ten experts’ members appointed by the Central and State Government.
(Section 33-35) deals with the Appropriate Authority which consists of Joint Secretary and Joint Director of the Health and Family Welfare Department, an eminent woman representing women’s organization, the officer of Law Department of the State or the Union territory and eminent registered medical practitioner. Within the 90 days of Bill becoming a statute, the Central and State Governments shall appoint one or more appropriate authorities.
(Section 36-43) penalizes any person up to 10 years imprisonment and fine up to10 lakh rupees for offenses such as advertising or undertaking commercial surrogacy in any manner, disowning or exploiting the surrogate child or surrogate mother, selling or importing human embryo or gametes for surrogacy purpose and conducting sex selection in any form for surrogacy.
(Section 45-52) deals with the miscellaneous provisions which include Maintenance of records, Power to search and seize records, Power to make rules and regulations by the Central Government and by the Board, protection of government or any appropriate authority from any prosecutions for the actions taken by them in good faith and power of the central government to remove the difficulties for the provisions which are inconsistent with provisions of this bill.
Surrogacy has been the vogue in the country for more than 12 years. The purpose of the bill is to affirm effective regulation of Surrogacy, prohibit commercial surrogacy, and allows ethical surrogacy. And it will also prevent the exploitation of surrogate mothers and children born through surrogacy. Although the bill was made with the intension of preventing this exploitation, but some of the clauses do not in consonance with the Constitutional Provisions. As the Bill fails to pass the “Golden Triangle” . (6)
RIGHT TO LIFE UNDER ARTICLE 21
Article 21 of the Constitution of India is a sacred and cherished right to life and personal liberty, it has an important role to play in every person’s life 23. It enshrines the principles of Right to Life, Personal Liberty, and Right to Livelihood 24.
Consumer Education and Research centre and Ors, v. Union of India(7), the Supreme Court stated that the expression ‘life’ under Article 21 of the Constitution has a much wider meaning and includes the right to livelihood. This principle was also recognized in Olga Tellis v. Bombay Municipal Corporation (8), But this “right to livelihood” is violated in the Surrogacy Bill as it imposes a complete ban on commercial surrogacy threatens an important possibility for poor women to earn desperately needed money, or to achieve some kind of financial independence or stability for themselves and their families by giving consent to be surrogates instead of monetary compensation.
In the case of Baby Manji Yamada v. Union of India (9), the court has described the various forms of surrogacy, which include traditional surrogacy, gestational surrogacy, altruistic surrogacy, and commercial surrogacy. The advancement of IVF technology and the growth of IVF clinics across India have made it a spot for reproductive tourism. India has often been termed as the “surrogacy Capital of the world” , and the surrogacy business, estimated at 400 million dollars a year, witnessed the emergence of over 3000 fertility clinics all over India. In Devika Biswas v. Union of India (10), the supreme court recognized the right to reproduction as an important component of the ‘right to life’ under Article 21. These reproductive rights of women include the right to carrying a baby to term, giving birth, and raising children. They also include rights to privacy, dignity, and integrity of the body.
The Andhra Pradesh High Court in the case of B.K. Parthasarthi v. Government of Andhra Pradesh (11), states that state’s interference on procreation amount to a direct encroachment on one’s “right to privacy” that has been recognized as a facet of right to life under Article 21. In K S Puttaswamy v Union of India (12), where bench held that privacy of any person covers personal autonomy relating to the body, mind, and to making choices. In a Suo Moto PIL filed for the deplorable condition of a female prison inmate in which high court stated that a “woman alone should have the right to control her body, fertility and motherhood choices” . As the right to decide about reproduction is essentially a very personal and private decision and it should be according to women’s choice and controlled by the women’s body but in this bill, State interfere in such decision-making process. If a woman wants to help a needy couple by providing a child of his own, then the state cannot interfere with this humanitarian act, and rather, such acts should be appreciated. Also, the government does not give proper reasoning that why unmarried and childless women would not be surrogates.
RIGHT TO EQUALITY OF CHOICE OF AN INDIVIDUAL UNDER ARTICLE 14
Article 14 guarantees “equality before law and equal protection of laws to all persons”. The fundamental principle of Article 14 forbids class legislation but permits reasonable classification. To pass test of permissible classification, the Court has laid down two tests which must be satisfied i.e. intelligible differentia and rational nexus. Section 377 of the Indian Constitution by the Supreme Court, which decriminalized consensual sexual relations between two adults of any sexuality. In National Legal Services Authority v. Union of India (13), which give them equal power as gender of male and female. But the Bill fails to provide for equality of those basic rights to every gender. The current Surrogacy Draft (Regulation) Bill, 2020 creates a specific criterion, which is very narrow for commissioning surrogacy and it would disentitle transgenders from commissioning surrogacy.
In Chintaman Rao v. State of MP (14), has correctly confined the word ‘restrictions’ of Article 19(6) and stating that the phrase ‘reasonable restriction’ imposed the limitation on a person in the enjoyment of the right which should not be arbitrary or of excessive nature beyond what is required in the interest of the public. Court also held that the law should strike the proper balance between the freedom guaranteed under Article 19(1)(g) and the social control according to Article 19(6).
In State of Maharashtra v. Indian Hotel and Restaurant Association (15), the Supreme Court had held that a total ban on bar dancing is unconstitutional as the ban stating that the “cure is worse than the disease” given that contrary to its purpose, resulting in many women being forced into prostitution and violated their right to carry on one’s profession or occupation under Article 19(1)(g) of the Constitution. 46 Similarly, putting a blanket ban on commercial surrogacy in the Bill and legalizing only altruistic surrogacy also goes against Article 19(1)(g) of the Constitution.
MORALITY AND ETHICS OF SURROGACY
"Surrogacy is introduced with the motive to provide parenthood feelings to infertile couples and for economic assistance to surrogate mother who has to fight every day for her subsistence living". But, due to lack of proper surrogacy legislation, only the middlemen are profit earners and intended couples and surrogate mothers are in a way being exploited. There are several moral and legal issues related with commercial surrogacy. As per the latest Surrogacy Bill of 2019, commercial surrogacy has been banned and altruistic surrogacy had been permitted. The main reasons to ban commercial surrogacy were to prevent the exploitation of women, selling and purchasing of babies, illegal trading of human embryos The criteria mentioned for surrogate mother that she should be a close relative of infertile couple but not accurately defined the term close relative makes it a little vague to understand the concept. Societal and family impression is the big issue as society never accepts this kind of behaviour. There is a lack of secrecy and everyone in the family and society get to know about the act and then starts blaming both the surrogate mother and intended couples (16).
SURROGATE MOTHERHOOD- LOOPHOLES AND SUGGESTIONS
Law is to act both as an ardent defender of human liberty and an instrument of a distributor of positive entitlements. Further, the law must keep pace with the emerging technologies so that their constructive benefits could be availed by those in need. However, the Bill only allows altruistic surrogacy by putting a blanket ban on commercial surrogacy. It forbids foreigners, NRIs, and PIOs from commissioning surrogacy in the country. It deprives the surrogate mother of availing the benefits of commercial surrogacy. As commercial surrogacy seems to be an attractive alternative for either of the parties involved. Firstly, the poor surrogate mother gets financial stability, and on other hand, the infertile couple gets their long-desired biologically related child. And apart from that, it includes foreign currency investment. Thus, it is necessary to find a midway that facilitates commercial surrogacy but in a regulatory manner. If we permit commercial surrogacy with high charges but in a restricted manner i.e. Any woman becomes a surrogate mother once in a lifetime if she satisfies the criteria set by the government regarding the health and other situation. Also, the amount should be fixed per surrogacy to avoid bargaining among the parties. This will help surrogate mothers by solving some of their immediate financial problems and the intending couple will get their biological child. Today surrogacy is a need of society. In some cases, surrogacy is the last hope for those infertile couples, who are unable to get their biological child. The role of a child would not undertake in a society. Childlessness affect the social and psychological aspect of a family and ultimately the society. Having a child makes a couple’s life more meaningful and complete and the object of a fundamental right is to make life more meaningful, complete, and worth living. Therefore, surrogacy should come under the purview of fundamental rights (17).
There is a requirement to add a provision in the Bill in which every Reproductive clinic must have counselling department to check that whether the surrogate mother was coming voluntary or by forcefully. This can be an effective method to check the mental condition of the surrogate mother. The counselling team should give counselling to the surrogate mother about the entire process of the Surrogacy as well as about the health issue relating to it in an unbiased way. To make sure that the Surrogate mother should know the process and risk involved before going through this.
We should also consider the possibility of any unforeseen situation or rift or divorce between the intending couple which may render a child abandoned. Clear provisions regarding roles and responsibilities of intending couples and surrogate mothers in cases of abandonment of surrogate children by intending parents, need to be provided in the Bill for the best interest of such children. If any kind of dispute arises, it should be declared immediately that the child needs care and protection (18).
GESTATIONAL BIRTH MOTHERS' JUSTICE
New reproductive technology claim to help human beings through creative interventions that reduce suffering and have the potential to transform the society. The commercialization of surrogacy however creates several social conflicts rather than resolving a few. It generates the family pressure on pure women to offer their wombs for a price. In the other part of the world like in India, the debate is focus on the ethics of surrogacy rather than on the economic advantage of any particular region. On the other hand the economic advantage is the main criteria behind going for surrogacy. Majority of the women becoming surrogates are extremely vulnerable due to poverty, lack of financial resources, low educational levels. For them the financial gain is the key factor. This makes their economic exploitation much easier for the agents for commissioning parents. The surrogates often face the dilemma that being a surrogates is socially unacceptable when the frankly accept monetary consideration. So rather than tell their neighbours that they gave away their child, they tell them that the baby died. As the surrogacy involves implantation of multiple foetuses, the unwanted foetus is aborted during the course of development. (19)
The concept of surrogacy in India is not new. Commercial surrogacy or “Womb for rent,” is a growing business in India. In India, English speaking environment and cheaper services attract the willing clients. Future projections of surrogacy practice range from opportunity to exploitation – from rural women in India uplifted out of poverty to a futuristic nightmare of developing country baby farm. In case of surrogacy in India, it is hard to tell that whether these women are exercising their own personal rights or whether they are forced to become surrogate mothers due to their mother-in-law’s or husband’s desire to fulfil material and financial needs. According to legal experts” if surrogacy becomes an avenue by which women in richer countries choose poorer women in our country to bear their babies, then it is economic exploitation, a kind of biological colonization.” The Ministry of Women and Child Development is examining the issue of surrogate motherhood in India for bringing up a comprehensive legislation. A draft legislation on surrogacy-prepared by the Indian Council of Medical Research (ICMR) has recommended strict penalties for offenders and a tight regulation on Assisted Reproductive Techniques (ART).
The Supreme Court in Murlidhar Aggarwal & Anr. v. State of U.P. (20), remarked that public policy does not remain static in any given community and change from generation to generation and even in the same generation. Public policy is useless if it were to remain in fixed moulds all the time.
PROGRESSION OF SURROGACY IN INDIA
The need of the hour is to recognize surrogacy as a ‘right’ and not a ‘need’. The moral grounds for making surrogacy a last resort are outdated. Denying women, the right to avail of surrogacy by saying the “joy of bearing one’s own child cannot be compared to having one through surrogacy” reeks of patriarchal mores. When placed in a rights-based discourse, the State becomes obligated to play a crucial role in furthering reproductive rights and freedoms so as to improve reproductive health (21). The regulation around surrogacy ignores the potential loss of earnings of the surrogate because she will effectively have to put her life on hold during the later stages of pregnancy. Instead of the Select Committee romanticising altruistic surrogacy by calling it a “social and noble act of the highest level” which “sets an example of being a model woman in the society”, a compensated surrogacy model should have been adopted, where the intending parents not only bear all medical expenses related to the pregnancy and post-partem care, but also compensate the surrogate mother for any loss of income caused by the pregnancy. She must also be compensated for any expenditure incurred in relation to the pregnancy, including maternity clothing, additional nutrient supplements to sustain the pregnancy, dietary expenditure, etc. (22).
CONCLUSION
surrogacy is recognized as a reproductive right, surrogacy regulation in India will not be able to protect the bodily autonomy of the surrogate and the right to parenthood of the intending parent(s). Although India is going through a revolutionary time whereby the citizens’ thinking process is undergoing a radical shift away from the patriarchal norms to more feministic ethos; the proposed surrogacy legislation serves as a black spot on the progressive growth of the notion of equality in India. Furthermore, the Bill is unsuccessful in maintaining a balance between regulations and rights and it is not constitutionally valid as can be seen from the interpretation of Article 14, 21 and 19(1)(g) as well as from the decision given by Hon’ble Supreme Court in the landmark judgements. But this Bill can bring a change if loopholes mentioned above are dealt with, it will result in better implementation of this bill which can go a long way in protecting the rights of surrogate mothers.
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