ABSTRACT
Numerous people, including couples, are affected by infertility, which is mostly caused by biological problems and an increasing marriageable age. Even if scientific and technological advancements have provided answers, surrogacy is still controversial. Commercial surrogacy in particular raises moral and legal questions regarding the exploitation of mothers and children. Only altruistic surrogacy is permitted under India’s Surrogacy (Regulation) Act, 2021, which outlaws commercial surrogacy. The paper analyses the Act critically and makes the case that it violates women’s reproductive rights, creates arbitrary categories, and runs the risk of making surrogacy more illegal. The research evaluates legal provisions, case laws, and academic literature using doctrinal and analytical approaches in order to determine the impact of the Act. In addition to supporting more expansive definitions of intended parents, controlled commercial surrogacy, and respect for reproductive autonomy, the study makes recommendations for inclusive reforms. By reflecting changing society norms and constitutional principles, these amendments seek to strike a compromise between upholding the rights of surrogate mothers and achieving parental goals. An ethical and secure framework for surrogacy can be established in India with the help of well-defined legislation.
KEYWORDS
Surrogacy, Commercial surrogacy, Altruistic surrogacy, Intending couple, intending women
INTRODUCTION
In today’s world infertility is not a strange concept, a lot of people are unable to bear child due to a lot of reasons like increase in the marriageable age, various biological factors like ovulation disorder, tubal disorder etc. And also, an important factor of people’s choice to be homosexual or single. But in today’s world with growth in science and technology the desire to have their biological child can be fulfilled despite the biological problem one has.
India’s constitution is interpreted as a living document i.e. the interpretation of the constitutional provisions changes with the changing time, changing mindset of the people. In such a dynamic scenario, it is essential to adapt the laws governing society to reflect the evolving mindset. Shifts in moral perspectives and public policy necessitate exploring new avenues for interpreting laws. Without this parallel shift, laws remain static and misaligned with the changing sociological structure, leading to confusion and chaos. Therefore, it is crucial to interpret laws in a manner that best suits the current societal context.
Commercial surrogacy is a hot button issue worldwide due to issues like exploitation of women and child born out of the surrogacy process. It can be contended that the society has not yet grow enough to accept commercial surrogacy as dignified employment or service provided. Also, it has been seen worldwide that there has been wide scale exploitation in the name of commercial surrogacy due to lack of regulation. But is blanket ban on commercial surrogacy and replacing it with altruistic surrogacy is the only solution?
RESEARCH METHODOLOGY
This research paper employs a doctrinal research method It involves a comprehensive review of relevant legal provisions, case laws, and scholarly literature on the topic commercial surrogacy. Primary sources, such as legal statutes and judicial decisions, are critically analyzed to understand the legal framework and judicial interpretation surrounding surrogacy. Secondary sources, including books, journal articles, and online resources are reviewed to understand the concept of commercial surrogacy.
LITERATURE REVIEW
Commercial surrogacy in India has been a contentious issue, evolving from an unregulated industry to one facing strict oversight. The ICMR issued guidelines in 2002, followed by the Indian Law Commission’s 228th report in 2009, which recommended regulatory measures. Initially, India became a global surrogacy hub due to low costs and lax rules. However, concerns about exploitation led to stricter regulations, culminating in the Surrogacy (Regulation) Bill, 2019, which aims to prohibit commercial surrogacy while allowing altruistic surrogacy. This article highlights both advantages, such as providing parenthood opportunities, and disadvantages, including legal and ethical challenges. The ongoing debate reflects the complex balance between fulfilling parental aspirations and protecting surrogate mothers’ rights.
There has been a lot of opposition to the Surrogacy (Regulation) Act of 2021 for a number of reasons. Critics claim that it restricts women’s choices and bodily freedom, infringing on their reproductive autonomy. The Act has also come under fire for discriminatory practices because it prevents members of specific communities from using surrogacy services. Lack of clarity in the Act on a number of subjects could result in misunderstandings and problems with implementation, which is another big worry. Furthermore, the Act may unintentionally impact the way of life for women who previously depended on surrogacy as a source of income by outlawing commercial surrogacy. Most concerning of all, there are worries that the surrogacy business may become underground as a result of these stringent laws. Rather than safeguarding women and controlling the activity, the Act might push surrogacy through unofficial avenues, making it more difficult to monitor and potentially more dangerous for all involved parties
In order to control surrogacy in India, the Surrogacy (Regulation) Bill, 2019 forbids commercial surrogacy and establishes stringent requirements for intended parents and surrogates to meet. The bill, nevertheless, is criticized for perhaps infringing on the rights to privacy and reproductive autonomy guaranteed by the constitution. It forbids same-sex couples, singles, and unmarried couples from using surrogacy, potentially going against recent rulings on equality and privacy from the Supreme Court. Additionally, it seems that the measure goes against India’s responsibilities under international treaties including CEDAW, ICCPR, and UDHR. Opponents contend that the limitations imposed by the measure are illogical given its goals and might not hold up in court. Although surrogacy regulation is required, the measure as it stands is discriminatory and may not comply with the constitution.
What is surrogacy?
By definition, surrogacy is the process or arrangement in which a person or a couple agrees to have a child through the womb of other women. Such a woman undergoes pregnancy for the intended parents, who are then legal parents of the newborn child.
There are two ways to classify surrogacy: according to embryos and according to the monetary benefit. Differentiating on the basis of there are two types of surrogacies: traditional and gestational surrogacy. In traditional surrogacy, the surrogate mother’s own egg is fertilized with the sperm of either the intended father or an anonymous donor. After fertilization, it is artificially inseminated in the womb of the surrogate mother and she carries the child for the duration of pregnancy. Therefore, genetically, the child is related to the anonymous donor or the intended father as well as to the surrogate mother. In gestational surrogacy, sperm of the intended father or an anonymous donor fertilizes the egg of the intended mother which is then fertilized in the laboratory and transferred to the womb of a surrogate mother who then carries the baby. So, the child is genetically related to the woman who has donated the egg and the man whose sperm fertilised the egg. In gestational surrogacy, the child is not genetically related to the surrogate mother.
Due to the biological link that exists between the surrogate mother and the child, which makes it difficult for the surrogate mother to give up the kid, traditional surrogacy is usually avoided. For this reason, the majority of nations, including Russia and Ukraine, forbid traditional surrogacy agreements.
Based on monetary compensation, surrogacy can be divided as altruistic and commercial surrogacy. Altruistic surrogacy is the one in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother or on her dependents on her representatives. Whereas, in commercial surrogate in exchange of monetary compensation, which is over and above the medical expenses, agrees to be a surrogate mother. It is a service undertaken by the surrogate in which she helps the intended parents to get a genetically related child while she also earns for all the labour that she has undergone during pregnancy. Commercial surrogacy is more of a concept related to employment and has now become a worldwide business.
The practice of “renting a womb,” often known as commercial surrogacy, was made legal in India in 2002. India became “the hub of surrogacy” as a result of this policy, which was made to encourage medical tourism there. The primary causes are the low cost—in the United States, it costs about $100,000—and the lax laws in India. The CII research from 2012 estimated that the surrogacy market in India was worth $2 billion annually. Additionally, it was anticipated that over 3,000 fertility clinics nationwide were involved in this practice. The unregulated business of surrogacy raised concerns like unethical practices, due to it the middlemen and commercial agencies profited most, exploitation of surrogate mothers, abandonment of children born out of surrogacy, rackets like organ trade, embryo import, etc. That let to come in force of the Surrogacy (Regulation) Act, 2021 which criminalised commercial surrogacy and established various other guidelines and eligibility criteria.
CRITICALLY ANALYSING THE ACT
Despite the fact that the act has been enacted with the intention of regulating the practice of surrogacy and combating the exploitation of women and surrogate, its provisions are discriminatory against women. There are worries that the Act may lead to an increase in the use of illegal commercial surrogacy, and that women may be exploited instead of being protected. The shortcomings of the Act are emphasized in the paragraphs that follow.
WOMEN’S REPRODUCTIVE RIGHT BEING INFRINGED
Reproductive choice includes a woman’s right to self-determination about family planning and fertility. This includes the autonomy to determine whether or not to have children, to decide whether to carry on with an unplanned pregnancy or not, and to choose the family planning and contraception options that best suit her needs. In essence, it’s about a woman being in charge of her reproductive health and decisions about having children. These rights have been expanded to include access to contraception, the right to a legal and safe abortion, the right to make decisions regarding reproduction free of discrimination, coercion, and violence, the right not to be subjected to harmful practices such as coerced childbearing. Through various SC judgements right to reproductive autonomy is a part of right to life and personal liberty under Article 21 of Indian constitution.The Supreme Court ruled in Suchita Srivastava v. Chandigarh administration that a woman’s freedom to make reproductive decisions is a part of her ‘personal liberty’, as defined by Article 21. The court went on to explain that acknowledging that reproductive decisions can be utilized to both reproduce and refrain from procreation is crucial. In the landmark cases of Navtej Singh Johar v. Union of India and Joseph Shine v. Union of India, the courts established a significant constitutional precedent. They ruled that laws reflecting discriminatory stereotypes and impeding women’s sexual autonomy, including their reproductive decision-making, are unconstitutional and should be struck down. This judicial stance underscores the constitutional protection of women’s rights to sexual and reproductive autonomy, challenging legislative measures that perpetuate gender-based discrimination or restrict women’s freedom in these personal domains. These rulings reinforce the principle that laws must respect and uphold women’s agency in matters of sexuality and reproduction, free from discriminatory societal stereotypes. Despite all these landmark judgments, the act excludes certain classes of women. Only those women can fall in the definition of intending women who is either widow or divorcee and who falls within the age bracket of 35 to 45 years. According to this section only who was married can avail this method, single women has no right in it. Also, if widowed or divorced and they don’t fall under the prescribed age bracket they cannot avail this. No reasonableness can be drawn for fixing such age limits.
UNREASONABLE CLASSIFICATION
This restrictive definition of intending couple or women excludes a specific group of people such as unmarried, homosexual couple, and couples from live-in-relationship from this definition thereby excluding them from availing this method legally. These exclusion are unreasonable and may stand in violation of Article 14, as they fail to pass the reasonable classification test. In addition to it the act ignores the right of third gender which was recognized in NALSA v. UOI
INFRINGEMENT OF THE RIGHT TO LIVELIHOOD
While it’s crucial to prohibit the commercialization of human embryos and gametes, classifying traditional surrogacy as “commercial surrogacy” may infringe upon the constitutional right to practice any profession or carry on any occupation, trade, or business, as guaranteed by Article 19(1)(g) of the Indian Constitution. This ban could significantly impact surrogate mothers, potentially depriving them of a vital income source. The Constitution allows for reasonable restrictions on this right, but the limitations imposed by the Act appear to be excessive and thus may violate Article 19(1)(g). Moreover, a blanket ban on commercial surrogacy could be seen as a violation of Article 21, which guarantees the right to life. As established in Consumer Education and Research Center v. Union of India, the term ‘life’ in Article 21 encompasses the right to livelihood. This interpretation was further reinforced in Olga Tellis v. Bombay Municipal Corporation. By prohibiting commercial surrogacy, the Act may be infringing upon both the right to practice a profession and the right to livelihood, thus potentially contravening these fundamental constitutional rights.
BLANKET BAN OF COMMERCIAL SURROGACY CAN LED TO ILLEGAL MARKET
There are various speculations that blanket banning of commercial surrogacy will lead to the development of underground industry, and will survive illegally. Where there’s demand for surrogacy from prospective parents and willing surrogates, arrangements will be made, whether legal or not. A well-regulated framework is more likely to prevent the industry from going underground and reduce surrogate exploitation. However, if surrogacy is prohibited for large portions of society, people may resort to alternative, potentially risky methods to fulfil their desires for parenthood. Altruistic surrogacy, while seemingly benevolent, isn’t without its pitfalls. In India, women often lack the final say in such decisions. Family members might use subtle coercion to convince a woman to become a surrogate when they want a child through this method. Beyond mere persuasion, relatives might employ emotional manipulation, psychological pressure, or even physical threats to force a woman into surrogacy against her will. The Act’s limitation of surrogacy to married or widowed women potentially increases their vulnerability, especially for those living alone, as they might be more susceptible to such pressures and exploitation.
AMBIGUITY IN THE NEW AMENDMENT ACT
The surrogacy amendment rule, 2023 made it compulsory that couples undergoing surrogacy should have both the gametes of the intending couple and donor’s gamete is not allowed. Same is the provision with intending women she is not allowed to use donor sperm for availing surrogacy. After this notification came in force it was subject to a lot of criticism as it completely blocked the way for couples where both are suffering from infertility. One year later govt. through notification allowed to have donor gametes for surrogacy where both the partners are having medical conditions leading to infertility. But for intending women the situation remains the same intending women is still not allowed to have donors’ sperm in case she is suffering from medical conditions leading to infertility. Also, no reasonableness can be drawn from this as to why intending women are not allowed to have a donor’s egg if she is suffering from some medical condition.
SUGGESTION
There should be an inclusive definition of intending parents to include single individuals, homosexual couples and couples in live-in-relationship. Rather than a blanket ban, implementing stringent regulations for commercial surrogacy can address exploitation concerns. Establishing clear guidelines and monitoring mechanisms can protect surrogate mothers while allowing them to benefit financially. Ensure the law respects women’s reproductive autonomy by allowing all women, regardless of marital status, to opt for surrogacy if they wish. The act should remove age restrictions and provide women with the freedom to make informed decisions about their reproductive health. comprehensive guidelines should be developed to prevent coercion and exploitation in altruistic surrogacy. This includes setting up independent counselling and support systems for surrogates to ensure their consent is fully informed and voluntary. The Act should provide clear and consistent guidelines on the use of donor gametes, ensuring that couples and individuals suffering from infertility have viable options. Amendments should be made to allow donor sperm for intending women to ensure equity.
CONCLUSION
While the Surrogacy (Regulation) Act aims to prevent exploitation and ensure ethical practices, it falls short in several ways. It restricts women’s ability to exercise their right to self-determination, creates arbitrary classifications, and puts surrogacy practices at risk of going underground. The Act’s strict regulations, especially the blanket ban on commercial surrogacy, may have unintended consequences that increase exploitation and create an illegal surrogacy market. The Act needs to be significantly changed in order to be consistent with constitutional principles and changing societal norms. Important changes include expanding the definition of intended parents, regulating rather than outlawing commercial surrogacy, and guaranteeing reproductive autonomy. These changes would reflect a more progressive and inclusive approach of surrogacy, ensuring it is practised ethically and safely in India.
By-
RIYA RAKSHA
Symbiosis law school, Noida