Abstract:
Commercial surrogacy has become a complex and disputed subject in India, with numerous ethical and legal concerns associated with it. While on one hand it is a boon for people who wish to have children but are unable to do so, in many countries particularly in developing nations surrogacy has become a nightmare for women belonging to economically and socially weaker sections. The rise of ‘surrogacy tourism’ in India saw affluent couples from western countries with stricter laws on surrogacy coming to India to take advantage of its then lenient surrogacy regulations. Women from typically poorer sections were surrogates for these families and were paid peanuts for carrying the babies to term. The aim of this study is to explore the moral and legal consequences of commercial surrogacy in India, and the evolution of existing laws and regulatory procedures on this subject. This paper evaluates the issues like consent, payment, and the risk of exploitation, shedding light on deficiencies and uncertainties in the legal system in India and the effectiveness and adequacy of these regulations in safeguarding the rights and welfare of all individuals concerned, such as surrogate mothers, prospective parents, surrogacy organizations, and most importantly the babies born out of surrogacy.
Keywords : surrogacy, surrogacy tourism, gestational surrogacy, altruistic surrogacy, surrogate mother, global surrogacy
- Introduction:
Historically, India has become an epicenter for commercial surrogacy because to its relatively low-cost medical services, experienced healthcare staff, and openness to accept reproductive technology. Commercial surrogacy, a practice where a woman is compensated for carrying and delivering a child for another individual or couple, has become a significant yet contentious issue in India. Once dubbed the “surrogacy capital of the world,” India saw a surge in surrogacy arrangements due to its relatively affordable medical services, skilled healthcare providers, and favorable legal environment. This phenomenon attracted many international couples seeking surrogacy services, transforming the country into a global hub for reproductive tourism.
However, the rapid growth of the surrogacy industry in India also unveiled numerous ethical, legal, and socio-economic challenges. Concerns about the exploitation of economically disadvantaged women, lack of regulatory oversight, and potential health risks for surrogate mothers have sparked intense debates. These issues led to calls for more stringent regulations to ensure ethical practices and protect the rights of all parties involved.
In response, the Indian government enacted significant legislative changes, including the Surrogacy (Regulation) Act 2021 and the Assisted Reproductive Technology (ART) Act. These laws aimed to curb commercial surrogacy, promoting altruistic surrogacy instead, where financial transactions are limited to medical expenses and insurance coverage. The new legal framework seeks to balance the aspirations of intended parents with the need to safeguard the dignity and well-being of surrogate mothers.
Method of research :
This research on commercial surrogacy in India uses a descriptive approach with secondary data collected from various sources like academic journals, blogs, reports and government proceedings. The data was thoroughly analyzed and processed to answer the research questions and objectives of the study. This method gives a comprehensive view of the topic by incorporating multiple perspectives and authentic information. Some legal terms and definitions were quoted directly to avoid any confusion or distortion, to maintain the precision and clarity of the legal context. This approach provides a solid foundation to explore the ethical and legal aspects of commercial surrogacy, to assess the existing regulations and to identify areas that need further legal and policy interventions.
Literature Review
- Wombs in Labor: Transnational Commercial Surrogacy in India – Amrita Pande
Wombs in Labor: Transnational Commercial Surrogacy in India by Amrita Pande looks at commercial surrogacy in India through a transnational lens. The book is an ethnographic account of the experiences of surrogate mothers and the socio-economic and ethical issues surrounding this practice. It looks at the economic incentives for Indian women to become surrogates (often poverty and lack of opportunities) and whether these financial motivations lead to exploitation and coercion. Pande also talks about the legal frameworks governing surrogacy in India and the gaps and challenges in regulation.
The book focuses on important issues like treating women’s bodies as products and the rights of women who carry babies for others. Surrogacy often involves people from different countries, which can lead to cultural misunderstandings and disagreements. The book looks at how people from different cultures, like those wanting a baby from another country and the Indian women carrying the babies, work out their differences. The book shares the real-life stories of these surrogate mothers, showing what their lives are like, how they make choices, and the negative views some people have about them. The author lets these women speak for themselves, showing how surrogacy affects them. The book also talks about “reproductive tourism,” where couples from other countries come to India to have a baby through surrogacy. It discusses how this business grows because of people connecting across the world and what it means for the communities in India and the bigger picture of how people have babies around the world.
- Discounted Life: The Price of Global Surrogacy in India- Sharmila Rudrappa
This book by Sharmila Rudrappa offers a detailed look at the surrogacy business in India, particularly focusing on the social and economic situations of the women who act as surrogate mothers. The book examines how international markets for reproduction have changed the lives of lower-income women in Bangalore, many of whom previously worked in garment factories and were then recruited for surrogacy. Rudrappa’s study, based on observing and participating in the lives of these women, shows surrogacy as both a job and a very personal journey. She describes the surrogate mothers not just as exploited, but as people dealing with complicated social and economic challenges, experiencing both empowerment and loss of power through their roles. The book also discusses the larger effects of surrogacy across countries, including the commercialization of women’s bodies and the ethical questions raised by this practice.
- Ethical Concerns:
Surrogacy raises ethical and psychological concerns, including the commodification of children and women, the breakup of mother-child bonds, interference with nature, and the exploitation of poor women in underdeveloped countries who sell their bodies for money. The financial incentives connected with commercial surrogacy, which frequently involves economically poor women as surrogate mothers, may raise concerns about their voluntary participation. The commercialization of reproductive services, which treats the formation of life as a business transaction, has spurred disputes over how children are viewed as commodities rather than persons with inherent rights and dignity. Unequal power dynamics in commercial surrogacy partnerships might jeopardize surrogate mothers’ autonomy and informed consent, since they may struggle to exercise their rights in the face of complicated contractual connections. Furthermore, the emphasis on financial gain may overwhelm concerns about surrogate mothers’ health and well-being, generating ethical concerns regarding their use as a means to an end. Critics claim that the influence on the child born from commercial surrogacy, which is frequently viewed as the result of contractual negotiations, may overlook the kid’s rights and well-being. Regulatory loopholes and the absence of established standards raise issues, allowing for uneven practices and potential abuses.
In 2002, commercial surrogacy, often known as ‘Rent a Womb’, was legalised in India. It was done to encourage medical tourism in India, and as a result of this move, India became “the hub of surrogacy”. The major reason is the inexpensive cost in India, as well as the lack of tight laws. According to the CII study for 2012, India’s surrogacy sector was worth $2 billion per year. It was believed that around 3,000 unregulated fertility clinics were involved in this across the country.
A 2013 survey done by the non-profit Centre for Social Research discovered that 88% of surrogate mothers questioned in Delhi and 76% in Mumbai were unaware of the conditions of their contract. In fact, 92% of people in Delhi did not have a copy of it. Surrogacy contracts today are primarily between the clinic and the commissioning parents, and do not include the surrogate. Surrogacy reduces pregnancies to services and babies to products. The surrogate must deal with the tremendous unpredictability and the expense of recurrent failures that need a painful surgery. The contractual party is not responsible for pregnancy loss, maternal death, other health concerns, post-natal care, or the surrogate mother’s recovery. She must accept invasive clinical treatments such as the transfer of a large number of in vitro embryos or fetal reduction if the sex is undesirable or the pregnancy is numerous. Because of the frequency of implants, the chance of miscarriage is two to three times higher than in normal pregnancies. Heavy medicine, repeated embryo transfers, several gestations, and fetal reduction can have dangerous implications. Surrogates are also susceptible to sexually transmitted illnesses. Pre-pregnancy operations do not count towards the nine-month ’employment period.
- The surrogacy regulation act 2016 :
The Surrogacy Regulation Act, 2016, implemented in India, was designed to manage surrogacy processes and cope with moral, legal, and social problems. This legislation outlaws commercial surrogacy in preference to altruistic surrogacy, where the surrogate mother does not get any financial reward except for medical expenses and insurance. The intended parents need to be Indian citizens and they need to be married for at least five years and meet specific age criteria that include the woman being between 23 and 50 years old and the man being between 26 and 55. Furthermore, they should be declared as infertile by a medical authority and they should not have surviving biological, adopted, or surrogate children, except in certain exceptional situations.
A woman of sample family should also be married, have at least one of her children from her own body and be about 25-35 years old. She can be a surrogate once and she has to be physically and mentally healthy enough to act as a surrogate. If a baby is born by surrogacy, it is considered by law that the couple that ordered it are the real parents with the rights and responsibilities they have. The Act of law provides for harsh treatment of anyone that solicits, offers in commercial surrogate services, violates surrogate mother’s prohibitory obligations, and the sale or importation of gametes or embryos, in case of their international transportation, imprisonment for at least ten years and monetary charges.
Its opponents have labeled the Act a Bushy-bearded man with its demerits which includes the inadequate representation of infertility and the impracticable requirement of the relative to be a part of the procedure. They say that the altruistic model does not give enough money to the surrogate mothers for their time, effort, and probable loss of income, and they propose reforms that would, in turn, create a more balanced and effective surrogacy framework in India like by allowing non-relatives as surrogates, broadening the definition of infertility, and providing for the deserved compensation for surrogate mothers.
On February 26, 2020, the Union Cabinet passed the new Surrogacy Regulation Act, 2020, which allows any woman to become a surrogate mother. The Bill had been placed on hold owing to the COVID-19 epidemic, but it was scheduled to be tabled as Bill 2021 in the Indian Parliament’s lower house during the next session. The Bill was a considerable advance in addressing the shortcomings of the Surrogacy Regulation Act of 2019, but it continues to take a needs-based approach rather than a rights-based one, and it must be passed into law before receiving presidential assent and accomplishing its purpose.
- The Surrogacy (Regulation) Act 2019 did not define infertility, but it did require at least one member of an intended pair to have “proven infertility” in order to be eligible for the surrogacy procedure. However, the 2020 Bill changed the possibility of surrogacy for couples who had a medical necessity for gestational surrogacy.
- An Indian lady who is widowed or divorced between the ages of 35 and 45 and want to use surrogacy chooses surrogacy.
The Surrogacy (Regulation) Act 2021 allows a widowed or divorced woman between the ages of 35 and 45, or a lawfully married couple, to employ surrogacy if she has a medical condition that necessitates this choice. It also prohibits commercial surrogacy, which is punishable by a 10-year jail sentence and a fine of up to Rs 10 lakh. The law only permits altruistic surrogacy where there is no monetary transaction and the surrogate mother is genetically related to the intended kid.
The Assisted Reproductive Technology (ART) Regulation Bill, first proposed in 2010 and later revised, aimed to provide norms for the surrogacy business. The bill attempted to safeguard surrogate mothers’ rights, regulate the obligations of intended parents, and address concerns about the privatization of reproductive health services. However, the measure was subjected to extensive study and amendment, and its ultimate adoption was delayed for a considerable period of time. As the industry grew, ethical issues became more important. The potential exploitation of surrogate mothers, the monetization of human reproduction, and concerns about the autonomy and informed permission of all individuals involved arose as critical ethical issues. The legal considerations included the sufficiency of the current system, remuneration and contractual responsibilities, and surrogate mothers’ rights and well-being.
- Important cases
- Baby Manji Yamada vs Union of India & Anr (2008)
Baby Manji Yamada, India’s first commercial surrogacy case, highlights both the moral and legal challenges associated with this growing industry. In order to have a baby, a Japanese couple, Dr. Yamada and his wife, who were both not married, turned to a commercial surrogacy service in 2007. After they were unable to conceive, they intentionally sought a surrogacy in India due to the cost-effectiveness and availability of surrogacy services. The Yamadas entered into an agreement with an Indian surrogate mother, and Baby Manji was delivered in July 2008. Before the Yamadas could travel to India to claim their baby, Dr. Yamada and his wife were divorced, and she had no desire to keep custody of the child. Despite the divorce, Dr. Yamada wished to assume guardianship of Baby Manji. Waiting in the wings, however, was Lukose Vasaksha, the surrogate’s mother, who laid claim to custody on a vague grounds that Baby Manji’s mother had died. The situation was further complicated by the fact that until they left with the baby for Japan, according to then relevant Indian law, baby Manji could not be adopted by Dr. Yamada. A birth certificate was also not issued, as the authorities could not comprehend a single father being listed; and if they went ahead, they were unsure whether to record the name of the previous child or not. After being declined the right to parental custody, Dr. Yamada filed a plea at the Supreme Court of India to rectify the situation and win his daughter back. The Supreme Court got involved and cited a case that fell under the best interest of the child doctrine and the decision that—as Dr. Yamada showed a direct interest in the child Baby Manji’s rights and needs ought to take precedence over the legal technicalities. In the end, the justices of the Superior Court agreed with Dr. Yamada, who was then allowed to exit the country with his child. The Baby Manji case spotlighted areas where law is still not sure in the realm of surrogacy, indicating that the law ought to get past its patchwork stage to set forth clear rules regarding everyone’s interests including those of the surrogate mother, the intended parents and the child. This particular case was the starting point for important dialogue to promote more realistic laws on surrogacy in India, aimed at avoiding tales of surrenders and institutional ambiguity.
- Jan balaz v. anand municipality
The Jan Balaz case is another important one in the context of commercial surrogacy in India. It highlights the intersection of surrogacy laws, citizenship and the rights of children born through such arrangements. Jan Balaz, a German national and his wife hired an Indian surrogate mother and she gave birth to twin boys in 2008. But the German government refused to give citizenship to the twins saying surrogacy is not recognized under German law. So the twins were stateless as they couldn’t get Indian citizenship either as India’s citizenship laws at that time didn’t allow it. Jan Balaz approached the Indian courts to get citizenship for his children. Gujarat High Court ruled in favour of giving Indian citizenship to the twins saying the welfare of the children is paramount and they have a right to citizenship. The court issued birth certificates with Jan Balaz and his wife as the parents and thus the twins got Indian passports.
This case highlighted the need for international and national surrogacy laws to address such cross border issues. It showed that children born through surrogacy should not be left in legal limbo, stateless and without citizenship. Jan Balaz case contributed to the surrogacy debate in India and influenced the legislative changes to better protect the rights of children and to have clear guidelines for surrogacy arrangements involving foreign nationals.
Suggestions
An examination of landmark case laws reveals that these legal decisions play a critical role in shaping the trajectory of surrogacy regulations, establishing precedents, and clarifying the complex rights and responsibilities of surrogate mothers, intended parents, and surrogacy agencies. The developing nature of surrogacy necessitates a nuanced and comprehensive legal approach, one that not only acknowledges the complex ethical considerations but also protects the rights and dignity of all those involved with the surrogacy procedure. The interplay of case laws, ethical considerations, and changing societal perceptions highlights the necessity for a dynamic and balanced approach to commercial surrogacy regulation, eventually developing a framework that respects the autonomy and well-being of all stakeholders.
We need to create a detailed law to protect everyone involved, making sure surrogate mothers can get legal help and support. We should set up rules to stop any unfair treatment, and have separate groups check that these rules are followed. Surrogate mothers should be paid fairly for all their costs, and they should also get financial advice. It’s important to give them good medical care and mental health support, including help after the baby is born. Public education can help people understand this better and make good choices, and working with other countries can help us follow the best practices from around the world.
Conclusion
The question of commercial surrogacy in India is a combination of two seemingly opposing concepts—autonomy and exploitation, which form a tangled web of issues ranging from the ethical, legal to socio-economic factors. On one hand, it gives infertile couples the privileges of parenthood; on the other hand, it presents a lot of reservations about the rights and well-being of the eggs donors. The women who usually hail from poorer neighborhoods face the worst of those challenges. It is the norm that the legal structure not only shifts to handle the new concerns but to the extent of ensuring that surrogate mothers are viewed not just as the tools of procreation but rather as humans with their rights and needs that require to be respected and safeguarded. In conclusion, the journey towards a balanced and ethical surrogacy practice in India is ongoing. It requires sustained efforts from lawmakers, healthcare providers, and society at large to create a system where the dreams of parenthood do not come at the cost of exploitation and where every individual involved is treated with fairness and humanity.
Done by Surabhi Suresh,
Ramaiah College of Law, Bangalore