ABSTRACT:

The purpose of this research paper is to analyze the Legal and Ethical Dimensions of Surrogacy in India its progress and position in a country like India where it used to be a norm and a source of livelihood for some but is now banned commercially. The author has given a brief introduction about what surrogacy is along with its medical definition. The historical evolution of the surrogacy in India has also been discussed. The author has then gone on to talk to types of surrogacies and ethical and legal issues of surrogacy in India. The author then moved on to the various legislations and guidelines which have been passed in an attempt to regulate surrogacy, along with some landmark cases and judgments which were an attempt to bring about the welfare of the surrogate children and make surrogacy a part and parcel of Indian society. The current legislation has been analyzed in detail, in the suggestions the author’s final opinions have been given and the research paper has ended with conclusion.

KEYWORDS:

Surrogacy, Surrogate mother; Surrogate child, Commercial surrogacy, Altruist, Surrogacy regulation bill.

INTRODUCTION:

There are around 2 billion mothers in the world. Every second, 4.3 infants are born.[1]However, not every woman is blessed with the opportunity to become a mother. The thrill of becoming a mother figure outweighs all other worldly pleasures. It is the most expensive bliss that a woman may feel after 9 months of waiting and suffering from labor pain. However, becoming a mother is not for everyone. Nature forbids certain women from becoming pregnant (due to an issue with their reproductive system). Infertility affects about 80 million couples.

In the past, couples who were unable to conceive were expected to turn to adoption to fulfil their parental aspirations. Infertile couples, single parents, and homosexuals who desire to have children nowadays have a variety of possibilities. They turn to alternative treatments including artificial reproduction technology (ART), in-vitro fertilization (IVF), and intrauterine injections (IUI) out of a desire to have children. Anew process was also introduced for fulfilling such parental aspiration called surrogacy.

HISTORY OF SURROGACY IN INDIA

For couples who are infertile, surrogacy is a blessing for them. Surrogacy is the practise of a woman carrying a child in her womb for another person through the transfer of an embryo or gametes made with the help of the intended parents. It has been practised in India since ancient times and was known as Niyoya Dharma.
The seventh child of Devki and Vasudev. Balram was implanted as an embryo in the womb of Rohini, Vasudev’s first wife. It was done to help the infant who was being slaughtered by Kansa;.
In the Mahabharata, Gandhari gave birth to a mass after two lengthy pregnancies. Rishi Agyasa had made the assumption that there were 101 cells in the mass. These cells were cultivated outside of the womb in a nutrient medium, from which 100 manly offspring known as Kaurans and a female body known as Dushala emerged.
Kartikey, who is frequently referred to as the fertility God, was also conceived through surrogacy by Shiva and Ganga (the surrogate mother).[2]

It is clear that surrogacy existed in ancient times also and so there is no conflict between assisted reproduction and socio religious mores.

Louise Brown, the world’s first kid, was born on July 25, 1978, using the in vitro fertilization procedure. The first case involving surrogacy occurred in New Jersey in 1986, when the surrogate mother (Mary B. Whitehead) refused to give her baby to the couples and violated their agreement. As a result of the New Jersey court’s ruling in favour of the biological father, he was given custody of the surrogate kid rather than the surrogate mother.

In October 1978, Dr. Subhash Mukherjee of Kolkata (India) announced the birth of the country’s first test tube baby. According to reports, the first child born through gestational surrogacy was born in Chennai. In 2002, India became the first country to formally recognize surrogacy.

RESEARCH METHODOLOGY:

For the purpose of doing the research, the researcher used secondary sources and a doctrinal approach. Secondary sources used in the research included online resources, research papers, textbooks, case laws, articles, etc.

REVIEW OF LITERATURE:

As per the Black’s Law Dictionary, “surrogacy means the process of carrying and delivering a child for another person.”

Surrogacy is a method of reproduction in which a woman agrees to become pregnant and birtha child for a third party. The word “surrogate” is a synonym for “substitute.” In other words, surrogacy is a result of human innovative mind and modern technology that allows infertile married couples to enjoy the joys of parenthood. A wanted couple coordinates with a surrogate mother who is willing to bear the pregnancy for nine months and give birth to the couples’ child through the assisted reproduction technique known as surrogacy.

Surrogacy arrangements take place not only within the family, but also throughout the neighborhood, state, country, and, increasingly, the world.

When it comes to surrogacy, surrogacy has been classified into various kinds:

On the basis of Nature of Surrogacy Agreement

Altruistic Surrogacy– Except for the necessary medical costs, the surrogate mother does not receive any payment for carrying the child or for giving the child to the intended parents. This typically occurs when the intending parents’ relatives are the surrogate mother.[3]
Commercial surrogacy– This category includes the majority of surrogacies performed. It entails paying a surrogate mother’s expenses for carrying a kid for nine months before giving birth. These are available to high-income childless couples. The couples cover all medical and other costs associated with the surrogacy. Surrogate moms receive payment for the services they provide. In the hopes of having a child, intended couples sign contracts that include payments for expenditures as well. This usually happens when the surrogate mother is not related to the intended parents.

On the basis of Nature of Fertilization

Traditional Surrogacy: The surrogate mother bears the child to term and delivers it for the couple via artificial insemination. The child’s mother biologically is the surrogate. Because of this, the child the surrogate mother is carrying has some of her genetic makeup.
Gestational Surrogacy: The mother’s eggs are fertilised by the father’s or donor’s sperm in a process known as gestational surrogacy, and the resulting embryo is then put in the surrogate’s uterus. In this case, the surrogate mother will act as the child’s biological mother and the eggs from the original mother will be used.

Ethical Issues of Commercial Surrogacy in India

Because of the plight of women, India has become a center for commercial surrogacy. Many tourists from over the world come to India to fulfil a dream they’ve had their entire lives, and the costs are also within their means. In India, it is simple and inexpensive to find women who are prepared to carry a child through surrogacy. This might be one of the factors influencing why foreigners select India for surrogacy. In 2002, commercial surrogacy in India was made legal. This draws a large number of infertile couples from outside the region who are looking for a lady to be a surrogate mother for their child. Women’s health had been severely impacted by the practice of commercial surrogacy.[4] It directly impacted the reproductive health of the women and ultimately resulted in their exploitation.

The following list includes some ethical concerns with surrogacy:

Physical Harm: Most Indian women who become surrogate mothers do it out of need for money. If there is no medical negligence on the part of the doctors and other medical professionals, it is difficult to settle the risk and thus refund the surrogate mother’s loss. Physical damage is always a possibility.
Do women’s bodies get sold? Contrarian opinions on surrogate maternity claim that it entails “selling the female body.” The literature compares surrogacy to prostitution because it is implied that the women sell their uteruses and relinquish control over their own bodies. Additionally, Western women who are infertile use the poor women of the third world as a tool to fulfil their reproductive requirements.
Are the women going to be the breeding boxes? It is alleged that compensated surrogacy reduces the female body to a commercial commodity and reproductive tool. In the same way that having sex for money is an unacceptable behaviour, acting as a “breeding box” is also unacceptable.
Does the surrogate pregnancy cause the couple marriages to become weaker? One may even discuss some more unfavorable outcomes of surrogate motherhood. The matrimonial bond between the infertile pair could suffer as a result of the surrogate mother’s engagement. As an instance, a surrogate mother might feel warm feelings for the sperm donor Additionally, the man can view the surrogate mother’s fertility as a miracle and value her higher than his own wife. In this condition, it is argued that the marriage relationships of the couples may be in jeopardy. Would the couple marriages actually deteriorate?
What should be done if the surrogate mother refuses to give the child back because she claims that it is her own child? In some situations, the surrogate mother may become emotionally attached to the child throughout and even after the pregnancy and refuse to take the child away. What steps should be taken if the surrogate mother decides not to deliver the baby to the willing couple? Undoubtedly, the parties would engage in a guardianship dispute.[5]

Many more inquiries about surrogacy arise, such as Who is the newborn’s true (biological)mother?

Would the surrogate mother be allowed to have an abortion (for any reason other than a medical necessity) if she did not want to give birth to the child?

Commercial Surrogacy and Legal Issues in India

It could be argued that commercial surrogacy violates a number of constitutional rights, including:

Equality: Because the surrogate mother is not provided an equal opportunity to raise the surrogate kid, the most fundamental right to equality is breached by commercial surrogacy. Reproductive freedom is a fundamental human right.
Exploitation: In most situations, the surrogate mother is abused through a variety of techniques, including sexual abuse, unlawful ovum sale, sex trade, nonpayment of compensation, and many more. Poor people and uneducated women in lower social classes are frequently persuaded to enter into such agreements by their life partners, middlemen, or other expected couples in order to obtain painless income.
Citizenship: It is clear that medical tourism serves as the foundation for the idea of commercial surrogacy. Many foreigners travel to India to have a child through surrogacy; the question that arises in such circumstances is whether the kid delivered by an Indian to a foreign parent is eligible for Indian citizenship.

Laws Related to Surrogacy in India

The 228th report of the Law Commission of India has advised that appropriate legislation be implemented to forbid commercial surrogacy and permit altruistic surrogacy only based on which the Indian Council of Medical Research (ICMR) created its guidelines in 2005 and the Assisted Reproductive Technologies (ART) Bill in 2008:

The law required both foreign couples wishing to use an Indian surrogate and non-resident Indian individuals or couples to name a primary guardian who would be responsible for keeping an eye on the surrogate throughout and after her pregnancy until the baby was delivered. The commissioning parents or parent were fairly required to accept guardianship of the child, regardless of any anomalies the child may have, and failing to do so was against the law. The surrogate mother was having to forfeit any maternal victories over the sprat. The names of the infant’s parents and/or natural parent(s) must be listed on the birth certificate of a surrogate baby.[6]

All agreements shall be made according to the Section 10 of the Indian Contract Act[7], with the free consent of parties who are legally able to enter into contracts, for a legal consideration, with a legal purpose, and are not specifically declared void. Then, in accordance with Section 9 of the Code of Civil Procedure, it could become the subject of a civil lawsuit in a civil court for the resolution of all disagreements relating to the surrogacy agreement and for a declaration or injunction about the relief sought for.

Assisted Reproductive Technology Bill, 2013

The 2013 Assisted Reproductive Technology Bill, which has not yet been passed by Parliament, is still being debated there. The only exchange of money permitted under this Bill is for the mother’s and child’s medical costs. No other remuneration is permitted. This means that only altruistic surrogacy will be permitted, and commercial surrogacy, including the sale and purchase of human gametes and embryos, will be prohibited. In order to control surrogacy in India and provide criteria for it, it also calls for the creation of a National Surrogacy Board at the centre, state, and union territory levels.

Surrogacy Regulation Bill (2016) & (2019)

The Bill aims to regulate surrogacy services across the country, outlaw the trade in human gametes and embryos, restrict the commercialization of surrogacy, prevent the potential exploitation of surrogate mothers, and protect the rights of children born through surrogacy. The following are the bill’s key components.

Only infertile couples between the ages of 26 and 55 for men and 23 to 50 for women are permitted to use surrogates under this law.
The potential partners must have been married at least five times and be Indian nationals.
The intended parents must never abandon the kid born through a surrogacy procedure.
The prospective surrogate mother must be a close relative who is between the ages of 25 and 35. She is limited to acting as a surrogate mother in the past.

The following actions are considered offences under the bill:

Under the proposed legislation, the following actions are prohibited:

engaging in or promoting commercial surrogacy;
taking advantage of the surrogate mother;
abandoning, exploiting, or disowning a surrogate child; and
importing or trading mortal embryos or gametes for surrogacy.

Similar offences carry a maximum 10-year prison sentence and a forfeiture of nearly 10 lakh rupees. For brand-new infractions of the rules set forth in the Bill, a variety of charges and sanctions are described.[8]

The Surrogacy (Regulation) Act 2021

Beforehand in December 2021, the Indian Parliament enacted two legislation that would latterly come key laws, the Surrogacy (Regulation) Act and the assisted Reproductive Technology (Regulation) Act. The Surrogacy (Regulation) Bill was initially passed by the Lok Sabha, but it was unsuited to be passed by the Rajya Sabha, transferring it to an Administrative Standing Committee for deliberation. On December 25, 2021, the Surrogacy (Regulation) Act, 2021 received the president’s assent.

The Surrogacy (Regulation) Act of 2021’s primary components are as follows.

Commercial surrogacy is categorically prohibited, and only charitable surrogacy is permitted. The intended couple must consist of an Indian male and an Indian woman who are legally married, between the ages of 25 and 50, and who have never given birth to a child naturally, consanguineously, or through surrogacy.

The surrogate mother must be fully informed of all provided side effects and any post-operation repercussions of the process. The surrogate mother must additionally provide written informed consent in a language that she can understand.

Any woman who wishes to become a surrogate mother must do it earlier in her pregnancy.[9]

Indian Judicial Perspective on Surrogacy

Baby Manjhi Yamada v. Union of India[10]

Then, in this instance, a Japanese couple travelled to India to use a surrogate to conceive a child. A baby was born through surrogacy and given to a Japanese couple, but she was unable to leave India because her country and India have not yet been linked. They recruited a woman from Gujrat, where the practise of surrogate fathering was widespread. The Japanese government granted her a temporary visa based on her charity efforts after the Supreme Court of India ruled that commercial surrogacy was allowed in that country.

Jan Balaz v Anand Municipality[11]

A German couple named Mr. and Mrs. Balaz traveled to India in order to become pregnant through surrogacy. They signed a surrogacy contract with a Gujarati woman. Mrs. Balaz’s body, however, was not in a state to even generate ova. Therefore, Mr. Balaz’s sperm and an unidentified woman’s donation of ova were used to carry out the procedure of fertilization. There was a concern about the twin boys’ nationality when the surrogate mother gave birth to them. In this case, the court determined that the wife was not the biological mother because she had neither given the eggs nor carried the fetus inside her body.

SUGGESTION

India, as we all know, need a stronger legal framework regarding surrogacy laws and contracts, wherein the rights of a mother are outlined and the requirements are specified. There must be a plan to offer legal assistance to all parties, such as legal and psychological counselling. To ensure clarity and prevent legal difficulties, parental rights should be established.

However, I suggest that before being delivered to the President for his signature, the Surrogacy Bill of 2019 needs to undergo more revisions. The statute states that ART Clinics should be established, however, it does not state what criteria should be followed to ensure surrogate mother sanitation and safe delivery at such clinics (which must be defined). In order to protect the interests of commissioning parents and surrogate mothers, commercial surrogacy should be legalized with some restrictions.

CONCLUSION:

From being described in ancient books to becoming an accepted practice and a source of wealth for a country to being regulated with tight guidelines, the practise of surrogacy has gone through various changes that reflect the situation of society at the time. This was a practise that was widely employed in the past but was misapplied, as we can see in the case of Kunti who received a boon that was way too old for her. India had developed into a centre for commercial surrogacy between the years 2002 and 2018, and this practise was unregulated because there was no law controlling surrogacy. However, commercial surrogacy has been banned in 2018 along with a number of rules.

AUTHOR

MOHAMMAD FARAZ

ALIGARH MUSLIM UNIVERSITY, CENTRE, MURSHIDABAD

[1] The World Count https://www.theworldcounts.com/stories/how-many-babies-are-borneach-day (15th Aug.)

[2] R.S. Sharma, Social ethical, medical & legal aspects of surrogacy: an Indian scenario, Indian J Med Res, S13-S16 (2014).

[3] R.S. Sharma, Social ethical, medical & legal aspects of surrogacy: an Indian scenario, Indian J Med Res, S13-S16 (2014).

[4] Pikee Saxena, Archana Mishra, Sonia Malik, Surrogacy: Ethical and Legal Issues Indian J. Community Med. 211- 213 (2012).

[5] Leelesh Sundaram B, Ansha Sundaram, Legal and Ethical Issue of Commercial Surrogacy inIndian Scenario, 120 Int J Pure Appl Math 4295, 4300-4305 (2018).

[6] Ananya Bose, Is Surrogacy Legal in India, ipleaders, (31^st Aug. 2022, 1;00 AM) https://blog.ipleaders.in/is- surrogacy-legal-in-india/#The_Indian_Council_of_Medical_Research_Guidelines_2005

[7] The Indian Contract Act ,1872.

[8] Astha Srivastava, The Surrogacy Regulation (2019) Bill of India: A Critique. Journal of International Women’s Studies, 140-151. (2021).

[9] Ananya Bose, Is Surrogacy Legal in India, ipleaders, (31^st Aug. 2022, 1;00 AM) https://blog.ipleaders.in/is- surrogacy-legal-in-india/#The_Indian_Council_of_Medical_Research_Guidelines_2005

[10] WRIT PETITION (C) NO. 369 OF 2008

[11] L.P.A NO.2151 of 2009

LEGAL AND ETHICAL DIMENSIONS OF SURROGACY IN INDIA