ABSTRACT:
This research paper aims to examine the Legal and Ethical Aspects of Surrogacy in India, tracking its development and role in a nation like India where it was once a common practice and means of livelihood for some individuals, but is now commercially prohibited. The author provides a concise overview of surrogacy and its medical definition. The paper delves into the historical progression of surrogacy in India. It further explores the various forms of surrogacy and the ethical and legal dilemmas associated with the practice in India. Additionally, the author discusses the different laws and regulations implemented to govern surrogacy, citing significant cases and judgments that strive to safeguard the well-being of surrogate children and integrate surrogacy into Indian society. The existing legislation has been thoroughly examined, incorporating the author’s definitive recommendations, and culminating in the conclusion of the research paper.
KEYWORDS:
Surrogacy, Surrogate mother; Surrogate child, Commercial surrogacy, Altruist, Surrogacy regulation bill.
INTRODUCTION:
There are about 2 billion mothers worldwide whose grand total stands at 4.3 every second. Not every woman has a luxury of giving birth but joy of motherhood is above all the pleasures of the world. It is the expensive type of happiness that any woman would embrace, after waiting for nine long months, in pain. As essential as motherhood is, it is also not readily available; there are approximately 80 million couples affected with infertility, and certain women are naturally unable to conceive due to reproductive issues.
Adoption use to be the option for couples experiencing infertility. These days, infertile couples and single parents, as well as LGBTQ individuals who wish to have children, have more opportunities than ever before. 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
However, if we mostly think about the availability of surrogacy, it is a path that provides a way to transform the life to infertile couples by involving a woman to carry a child in her womb, with the help of transferring an embryo or gametes from the intending parents. This yoga is an ancient tradition dating back to India and historically known by former name is Niyoya Dharma.
In an attempt to protect the infant from Kansa, Vasudev’s first wife and Rohini’s womb partition Devki and Vasudev’s seventh child Balram was planted as an embryo.
The Mahabharata says that Gandhari took for two years, and then released a lump of 101 living cells. A hundred brave sons, and one single daughter named Dushala, were born from the womb, but these cells had been breathing outside the womb.
We understand that surrogacy has been practiced since the ancient epoch, and suggest that the assisted reproduction per se does not conflict with the socio-religious norms.
On July 25, 1978, Louise Brown was the first baby to be born using in vitro fertilization, a method of assisted reproductive technology commonly known as test-tube baby. In 1986, the first noteworthy surrogacy case involved Mary Ellen Whitehead, a traditional surrogate mother in New Jersey, who ultimately refused an agreeable surrogacy arrangement to give the child to the intended parents. After a court ruled on land for the biological father, the surrogate child was given to him customarily, overriding the surrogate thai 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:
According to the definition provided by Black’s Law Dictionary, surrogacy is defined as the process in which a woman carries and delivers a child on behalf of another individual. The term “surrogate” is synonymous with “substitute,” indicating that surrogacy involves a woman acting as a substitute for the biological mother. This practice is a manifestation of human ingenuity and advancements in technology, enabling infertile couples to experience the joys of parenthood. Through surrogacy, a desired couple collaborates with a surrogate mother who volunteers to undergo pregnancy for nine months and give birth to the couple’s child using assisted reproductive techniques.
Surrogacy arrangements can occur within families, communities, across states, countries, and increasingly, internationally. There are various classifications of surrogacy, each serving different purposes and involving distinct legal and ethical considerations:
- Based on the type of surrogacy contract:
- Altruistic Surrogacy: The surrogate mother does not receive any compensation besides medical expenses for carrying and delivering the child to the intended parents. This situation commonly happens when the surrogate mother is a relative of the prospective parent.
- Commercial surrogacy: It involves the majority of surrogacies conducted, falls into this classification. It involves covering the costs of a surrogate mother throughout the nine months of carrying and delivering a child. These are accessible to affluent couples without children. The pairs pay for all medical expenses and other costs related to the surrogacy. Surrogate mothers are compensated for the services they offer. Intending couples sign contracts that involve financial payments for expenses in anticipation of having a child. This commonly occurs when the surrogate mother is unrelated to the intended parents.
- Based on the type of fertilization:
- Conventional Surrogacy: The surrogate mother carries the baby during pregnancy and gives birth through artificial insemination for the couple. The surrogate is biologically the mother of the child. As a result, the baby being carried by the surrogate mother shares a portion of her genetic material.
- Gestational Surrogacy: It involves fertilizing the mother’s eggs with the father’s or donor’s sperm and placing the resulting embryo in the surrogate’s uterus. In this scenario, the surrogate mother will function as the biological mother of the child, using the eggs from the original mother.
Ethical Issues Related to Surrogacy in India:
Because of the condition of women, India has become a commercial center. Many tourists from all over the world come to India to fulfill their lifelong dreams and their expenses are also under their control. Finding pregnant women in India is easy and cheap. It may be one of the factors influencing foreigners to choose India for surrogacy. In 2002, commercial law was legalized in India. This attracts many unpromising couples from outside the area who are looking for a woman to be a surrogate mother for their child. It has a huge impact on women’s health through commercial practices. This directly affects the reproductive health of women and ultimately leads to their exploitation.
Listed below are some ethical issues associated with surrogacy:
- Physical Harm?
Most Indian women who become surrogate mothers do so out of financial necessity. In the absence of medical negligence on the part of doctors and other medical professionals, it is difficult to address the risk and thus recover the loss of the surrogate mother. Physical harm is always possible.
- Are women’s bodies for sale?
A controversial view of surrogacy argues that it involves “selling a woman’s body.” Literature is the same as prostitution and prostitution because women sell their wombs and lose control over their own bodies. In addition, undocumented western women use poor women in the third world as tools to fulfil their reproductive needs.
- Will women have reproductive boxes?
Surrogacy compensation is called turning a woman’s body into a commercial commodity and reproductive tool. Acting as a “breeding box” is not acceptable, just as sex for money is not acceptable.
- Does surrogacy weaken a couple’s marriage?
Even more disastrous consequences of surrogate mother can be discussed. The marriage bond between non-pregnant couples can suffer as a result of surrogacy involvement. For example, a surrogate mother can feel a warm feeling for a sperm donor. In addition, a man can see the surrogate mother’s infertility as a miracle and value her more than his own wife. In this case, it is argued that the couple’s marital relationship is in jeopardy. Is the couple’s marriage really going to get worse?
- What if the surrogate refuses to give the baby back because she says it’s her own?
In some cases, the surrogate mother may be emotional during pregnancy and even with the baby and may refuse to carry the baby. What steps should be taken if the bride decides not to deliver the baby to a willing partner? Inevitably, the parties will be involved in a custody battle.
Commercial Surrogacy and Legal Issues in India
Commercial surrogacy can be argued to violate several constitutional rights:
- Equality: the most basic right to equality is violated by commercial law because the surrogate mother is not given the same opportunity to raise her surrogate child. Freedom of expression is a human right.
- Exploitation: In many cases surrogate mothers are abused through various methods such as sexual abuse, egg trafficking, sex trafficking, non-compensation and others. Poor people and uneducated women from the lower social strata are often tempted to enter into deals such as with their partners, brokers or other potential partners for painless income.
- Nationality: It is clear that medical tourism is the basis for commercialization. Many foreigners go to India to give birth; The question that arises in such cases is whether a child handed over by an Indian to foreign parents is entitled to Indian citizenship or not.
Laws Related to Surrogacy in India
The Law Commission of India Report 228 recommends the implementation of appropriate laws to ban commercial artificial insemination and allow altruistic surrogacy, only the Indian Council of Medical Research (ICMR) guidelines of 2005 and the Assisted Reproductive Technologies (ART) Act of 2008:
The law requires foreign couples and non-resident Indian individuals or couples who wish to use an Indian surrogate to appoint a primary custodian who will supervise the child until birth and after pregnancy. The custodial parent or guardian is required to accept custody of the child regardless of the child’s anomaly, and it is against the law to fail to do so. The surrogate mother must be deprived of the mother’s victory over the sprat. The name of the child’s parents and/or biological parents must appear on the child’s birth certificate.
All contracts are entered into with the free consent of the party entitled to the contract, for legal purposes, for legal purposes and in accordance with Section 10 of the Indian Contract Act which has not been declared void. This can then be the subject of a civil lawsuit in the civil court under Section 9 of the Code of Civil Procedure to resolve all disputes related to the surrogacy agreement and make a declaration or decree regarding the relief sought.
Assisted Reproductive Technology Bill, 2013
The Assisted Reproductive Technology Bill from 2013, currently under discussion in Parliament, has not been approved yet. The sole authorized transaction allowed by this legislation is for covering the medical expenses of both the mother and the child. No additional compensation is allowed. This indicates that only selfless surrogacy will be allowed, while profit-based surrogacy, which involves the trading of human gametes and embryos, will be banned. To regulate surrogacy in India and establish guidelines for it, there is also a suggestion to form a National Surrogacy Board at different administrative levels.
Surrogacy Regulation Bill (2016) & (2019)
This bill aims to regulate national surrogacy services, ban trade in human and embryo matches, limit the commercialization of surrogacy, prevent the potential use of surrogate mothers, and protect the rights of children born through surrogacy. Below are the main parts of the bill:
- Only unmarried couples between the ages of 26 and 55 and women aged between 23 and 50 are allowed to use the questionnaire under this law.
- Prospective partners must have been married at least five times and must be Indian citizens.
- Intended parents should not abandon children born through artificial procedures.
- Prospective surrogate mothers must be close relatives between the ages of 25 and 35. She has even acted as a surrogate mother in the past.
Under the proposed legislation, the following actions are prohibited:
- engage in or promote commercial solicitation;
- use of surrogacy;
- abandoning, exploiting, or abandoning foster children; and
- import or trade in dead embryos or gametes for surrogacy.
A similar offense carries a maximum prison sentence of 10 years and a fine of up to 10 million rupees. The bill outlines various fines and penalties for violating the new regulations.
Surrogacy (Regulation) Act 2021
In December 2021, the Indian Parliament passed two laws that would later become significant, namely the Surrogacy (Regulation) Act and the Assisted Reproductive Technology (Regulation) Act. The Lok Sabha approved the Surrogacy (Regulation) Bill at first, but it wasn’t suitable for the Rajya Sabha, leading to its referral to an Administrative Standing Committee for discussion. On December 25, 2021, the president approved the Surrogacy (Regulation) Act, 2021.
The Surrogacy (Regulation) Act Of 2021’S Primary Components are as Follows:
- Commercial surrogacy is completely banned, while altruistic surrogacy is allowed. The desired pair should be a married Indian man and woman, aged between 25 and 50, who have not had a biological, related, or surrogate child.
- The surrogate must have complete knowledge of the possible side effects and consequences after the procedure. The surrogate mother also needs to give written consent in a language she understands.
- To be a surrogate mother, a woman must do so earlier in her pregnancy.
Indian Judicial Perspective on Surrogacy
- Anak Manjhi Yamada v Union of India
Then, in this case, the Japanese couple travelled to India to use artificial insemination. A child was born through surrogacy and given to a Japanese couple, but he could not leave India because he had no relationship with his country. They got a girl from Gujrat, where surrogacy is common. The Japanese government granted him a temporary visa based on his charitable efforts, and the Supreme Court of India allowed him to do business in the country.
- Balan Balaz and Anand Municipality
A German couple named Mr. and Balaz travelled to India to conceive through surrogacy. They entered into artificial contracts with Gujarati women. Mrs. Balaz’s body can’t even produce eggs. Therefore, Mr. Balaz’s sperm and egg donation from an unknown woman was used for insemination. When a surrogate gives birth, there is concern about the citizenship of the twins. In this case, the court determined that the woman was not a biological mother because she did not ovulate or transfer the embryo into her body.
SUGGESTION
India requires an improved legal system for surrogacy laws and agreements that clearly define the mother’s rights and requirements. A plan is necessary to provide legal aid to all involved parties, including legal and psychological support. In order to avoid legal problems and maintain clear communication, it is important to establish-parental-rights.
Yet, I recommend that the Surrogacy Bill of 2019 should undergo additional revisions before reaching the President for approval. The law requires that ART Clinics must be set up, but it does not specify the guidelines for maintaining sanitary conditions and ensuring safe delivery of surrogate mothers at these clinics (which need to be defined). Legalization of commercial surrogacy with some limitations is necessary to safeguard the interests of both commissioning parents and surrogate mothers.