ABSTRACT
Surrogacy [1]as a form of reproductive practice is on a rise. It is the practice where a woman, known as the surrogate undergoes pregnancy to birth a child of another couple. Number of couples with infertility issues choose to birth their child through surrogacy and now surrogacy can be seen as a commercial legal approach. It is done in a manner or through way of surrogacy contracts which is beneficial for both the parties and protect their Rights as well as provide remedies or compensation in occurrence of any mishap.
Surrogacy can be of different types such as commercial or altruistic[2], depending on the fact whether the surrogate mother is receiving any financial reward for her pregnancy or not. In recent times, couples from abroad travel to India and are attracted by surrogacy agencies because the cost of the whole procedure is less than compared to the rest of the world.
Although, surrogacy seems like a very good option for both, the couple and the surrogate because the surrogate mother gets the hard-earned money and couple gets their desired child.
This research paper discusses the Role of surrogacy contracts; protecting the rights of all parties involved, its impact and legislation related to Surrogacy in India as well as recent developments.
KEYWORDS– Surrogacy, commercial, altruistic, surrogacy contracts.
INTRODUCTION
Surrogacy in general terms, is when a women known as the surrogate, and intended parties are willing to have a child. It is a type of pregnancy in which a woman is ready to carry and give birth for a person or party that struggle with having children regrettably due to some disorder or various complications.
There are various techniques, including intrauterine injections (IUI), in vitro fertilization (IVF), and assisted reproductive technology (ART). When an embryo made from the intended couple’s eggs is produced in a test tube and transferred to the surrogate’s womb, it is believed that the ensuing child bears no genetic resemblance to the surrogate mother. With advancements in technology and increasing demand in the field of surrogacy, there is also a need for regulation of surrogacy contracts.
In India, Gestational surrogacy[3] also known as host surrogacy is only permitted. It
Surrogacy contracts play and important role as these contracts lay down the guidelines, clearly stating each party’s role and responsibilities throughout the whole journey.
These contracts are a strong foundation for intended parties and provide them with legal protection and at the time of termination of contract, the intended parties can acquire the parental rights of the surrogate mother. The main purpose of these contracts is to protect the rights of parties involved and that correct parentage is assigned to the child at the time of birth.
Presently, there is no such codified law for regulation of surrogacy contracts in India, which makes it questionable as it can create chaos and disputes between parties when there are no proper guidelines laid down. Before diving into the specifics of surrogacy, one needs to understand the fundamentals of it. Due to the unpredictability of the laws governing surrogacy in India, there is no transparency in the entire system, and there is a potential that one could become entangled in legal issues. However, legality surrounding the concept of Surrogacy has been evolving.
RESEARCH METHADOLOGY
The Researcher has adopted a doctrinal method and secondary sources for the research that has been conducted. The Research has been conducted through secondary sources such as online websites, research papers, educational books, case laws, Articles etc.
REVIEW OF LITERATURE
In India, infertility has always been a societal taboo, however due to the enhanced technology surrounding the concept of surrogacy and infertility has made it possible to be treated, which is where surrogacy contracts come to play.
India became a hotbed for transnational surrogacy after commercial[4] surrogacy became legal there in 2002. This was largely because there are no laws governing it, fertility facilities are inexpensive, and there are plenty of underprivileged women eager to serve as surrogates.
There are four types of Surrogacies –
- Traditional Surrogacy- The biological mother of the child is also the surrogate mother in traditional surrogacy. This type of surrogacy is typically used when a mother’s inability to become pregnant is brought on by problems. Through artificial insemination or in vitro fertilization (IVF), the surrogate mother’s own egg is fertilized with either the intended father’s sperm or donor sperm. As a result, the child the surrogate mother is carrying shares genetics with her.
- Gestational surrogacy – In this pregnancy, one woman is the genetic mother and provides the egg, which becomes fertile. A different woman, the surrogate mother, then bears the fetus and gives birth to the child.
- Altruistic surrogacy- means that, aside from the surrogate mother’s medical bills, there are no fees, charges, or other forms of payment made or received during the surrogacy process.
- Commercial surrogacy- This practice involves paying a surrogate mother to carry a child in her womb, and is typically requested or undertaken by intending parents who are having trouble conceiving. Due to the potential for manipulating the relationship between the intended parties and the surrogate mother, this sort of surrogacy is typically viewed as insulting or emotionally draining.
Now, as we know There are certain guidelines that need to be mentioned in the Surrogate parenting agreement which protect the rights and roles of the parties involved.
Firstly, the name, address and age of both the surrogate mother and intended parties is to be stated. Element of consent should be stated like Section 13 and 14 of Indian Contract Act[5], Surrogate must give the consent that she is capable of conceiving children and understands the best interests of child and that she will not form any kind of relationship with the child after birth.
If the surrogate is married, Husband is to agree with the agreement made and acknowledge that his wife, will be artificially inseminated and that he will not form any parent- child relationship with the child as well. Both of their parental rights are to be terminated.
Surrogate shall comply with all the medical examinations being conducted relating to the background check of her family, medical history, blood checkups etc.
The child’s birth certificate will be as the Natural or Biological father.
All medical expenses such as hospitalization, pharmaceutical, therapy etc. are to be paid by the Natural Father and other payment-related details are to be mentioned. (Natural Father is only responsible for the expenses till the time of birth, after the delivery he shall not be responsible to pay any of the Surrogate’s expenses.)
The Surrogate is to be paid the required amount after handing over the custody of the child to Natural Father.
Surrogate and her Husband (if married) are fully aware and understand the risks, incidental pregnancy and complications that may arise during pregnancy.
Lastly, each party must read and acknowledge the written facts and the risks involved and sign the Agreement.
Now, there have been several rules and regulations and developments in relation to Surrogacy and they are as follows:
- Assisted Reproductive Technology Bill, 2013
This bill ensured that regulatory measures were taken to protect the health and the rights of surrogate women and of children born through surrogacy. By establishing a national registry to monitor their operations, requirements for gamete donation, including requirements for donors, and requirements for providing ART services, the Assisted Reproductive Technology Act controls assisted reproduction clinics and banks. Additionally, it includes services like in-vitro fertilization, gamete donation, and surrogacy under its definition of assisted reproductive technology. For heterosexual Indian couples who have been married for at least five years but are unable to conceive a child, surrogacy is permitted under the ART Regulation Bill. The bill also allows for surrogacy in cases where specific medical issues make pregnancy dangerous or impossible.
- Surrogacy Relation bill 2016 and 2019
The Surrogacy (Regulation) Bill, 2019, was introduced in the Lok Sabha on July 15, 2019, by the Ministry of Health and Family Welfare. The Act would cover the entirety of India, except for Jammu and Kashmir. To protect the surrogate mothers who are taken advantage of in the “rent a womb” industry, this law was introduced to regulate the surrogacy industry. The government recognizes commercial surrogacy as the problem, which is defined as a practice of renting the womb with the promise of financial rewards that outweigh medical costs.
- This bill also provided exclusive conditions under which surrogacy is permitted in India such as eligibility criteria for intending couple, Surrogate mother eligibility, Penalties for Offences etc. It encouraged altruistic surrogacy while also outlawing commercial surrogacy for the first time in India. Additionally, a variety of safeguards have been put in place to protect the surrogate mother and her child. The Bill only allows married straight heterosexual couples who are infertile to undertake the ART technique as the surrogacy regulation bill 2016 allows surrogacy only to the married couples, it also violates the Article 14[6] i.e., Fundamental Right to equality.
. The National and State Surrogacy Boards, the Appropriate Authorities, and the registration of Surrogacy clinics are also established.
- Surrogacy Regulation Act 2021
This bill establishes the requirement for couples to be eligible for altruistic surrogacy in the Indian subcontinent. The act allows Indian widows, divorcees, and married couple of Indian origin to become parents through surrogacy. The current Act keeps significant checks and balances in place to prevent the exploitation of women. It tries to avoid using the greedy intermediary. Both the value of motherhood and any potential parental rights to the child are protected and upheld by it. Individuals should make their own decisions about whether they are allowed to have children and how many of them they desire, not the government. To base the principles of this Act on remuneration is disrespectful and only represents conservative viewpoints.
However, the Surrogacy Regulation Act of 2021[7] aims to regulate surrogacy in India, it has a few shortcomings as well. This act excludes certain sections of society, such as LGBTQ individuals, it bars homosexual coupled from using altruistic surrogacy which is discriminatory. The Act does not mention of granting equal rights to any third gender as well. Therefore, there is a dire need to amend the Act to make it more comprehensive and include every community and give them equal surrogacy rights.
This can be done through acknowledging the shortcomings, addressing the problems and making amends to strike a balance between the interests of all the stakeholders. To remain current and effective in resolving the issues surrounding surrogacy while safeguarding the human rights of the persons, the new rules and regulations must also take into consideration shifting societal tendencies.
Legality of Surrogacy contracts
There is no specific section that mentions surrogacy in India. Before the procedure is to start, the surrogate mother is needed to sign a contract. However, these directives are not enforceable by law. There are no official government restrictions in the first place.
Although there have been various tries by our Indian government to Implement surrogacy laws and build a regulatory system however it cannot be done overnight and there was no mention of surrogacy laws until 2016, after which the surrogacy bill of 2016 was passed.
The question of legality of surrogacy revolves around the importance of Rights and Responsibilities of the state and wherein their dignity is respected and opportunity of equal rights are weighed on both sides of the parties.
On that being said, can we say that “Surrogacy contracts amounts to baby selling?” As we know that commercial Surrogacy involves give and take of monetary expenses to the surrogate mother, where the intended parties pay all the medical expenses incurred during the whole journey of a child’s birth. This is said to be exploitative and morally wrong. Such acts can be considered coercive as they require the Gestational mother to give up certain morals in relation to her pregnancy and the child.
It is sometimes argued that even when an individual’s right to procreation is at stake, surrogacy contracts violate social interests and cannot, therefore, be enforced. The argument of balancing conflicting interests between an individual’s right and society’s interest, wherein the latter is given preference, cannot hold up because both interests must be on the same plane for the argument to be valid; otherwise, even in the process of balancing, the public interest would always prevail.
The parties involved in surrogacy arrangements can be covered under the informal system in nations like India where there is no legislation regulating surrogacy contracts because they are not covered and not regulated under the formal system, which provides formality and protection of law to the edges of society.
To sum up, surrogacy contracts that involved monetary exchange need a stronger and formal legal mechanism, this also applies on all the contracts that do not involve any kind of financial aid. Altruistic surrogacy arrangements are more ethical and deductive of social norms, that can be considered as a social good. Such kind of arrangements are better than banning the concept of surrogacy altogether.
CASE LAWS –
- BABY MANJI YAMADA V UNION OF INDIA[8] – In this case a Japanese married couple, Dr Yuki Yamada and Dr Iku Fumi Yamada travelled to India in search of Surrogate mothers and met with one in a reproductive center in Gujrat. The child’s father was Iku Fumi Yamada who provided the sperm for embryo creation while the egg donor was an anonymous woman. The couple seemed to have marital disagreements and the designated mother, that is, Dr Yuki Yamada refused to raise the child, reason being that she has no legal or biological connection with the child, The child’s father demanded custody but he had to travel back to Japan as his Visa expired. Ms. Emiko Yamada, paternal grandmother of the child travelled from Japan to take care of the baby.
The reproductive municipality center provided a birth certificate stating the biological father’s name. A petition was filed questioning the Legality of surrogacy, whether surrogacy is an unlawful industry or not. As a result, the Division bench of High Court of Rajasthan granted custody to the genetical father and the paternal grandmother. This is one of the landmark cases in which Supreme court issued a Judgement in terms of Surrogacy, highlighting its importance and a need for development regarding this sector.
2. Jan Balaz v Anand Municipality [9](2009) – in this case, the question of nationality of a child was brought under question. Indian-nationality surrogate mother gave birth to the child. The child’s father, who was asking for parental rights, was a German citizen. Germany declined to grant the child nationality after it was born. Because there were no prior cases addressing the nationality of a surrogate kid, the entire issue was further twisted. As the case developed, it picked up speed exponentially. As the facts were stated, it was figured out that the two minors who were born through surrogacy were Indian at birth and could not be denied visa to travel outside the country as it was a violation of Article 21 of Indian Constitution. After the approach of court, the two children were allowed to travel to Germany.
Through this case, it can be made out that there is a lack of legal mechanism and regulations surrounding the concept of Surrogacy.
SUGGESTIONS
As we know, India needs a stronger legal mechanism involving surrogacy laws and contracts, wherein Surrogacy rights of a mother are laid down, eligibility criteria are mentioned. There needs to be a concept to provide legal support such as legal counselling, psychological counselling to all parties involved. Parental Rights should be defined to ensure clarity and avoid legal complexities from occurring.
People can be afraid of what they don’t understand, not being informed about the complex procedure may leave a person feeling nervous and confused which is why the first step toward opting of surrogacy as a reproductive method should be formation of surrogacy contracts and details about the whole procedure being laid down.
There is a lot of hearsay and unconfirmed stories about surrogacy, that is why it is also important to conduct your own extensive research before diving into it.
Laws should be formed in such a way that they are in line with the Rights of the Surrogate mother as well as for her benefit. There is also social stigma surrounding the concept of surrogacy as many people are not aware of it and see surrogacy as a commercializing project. These laws also need to inclusive of homosexual couples and single parents.
CONCLUSION
To conclude, surrogacy is a contentious subject in India. To safeguard the rights of all parties, there needs to be regulation of surrogacy contracts in India. The Surrogacy Regulation Bill, 2020 included a number of regulations intended to regulate surrogacy in India. It aims to establish eligibility standards for intended parents, safeguard surrogate mothers’ welfare, and provide legal certainty on issues like citizenship and the child’s parental rights born through surrogacy.
The creation of the National Surrogacy Board and State Surrogacy Board would aid in reviewing the surrogacy procedure and resolving any conflicts. These bodies would be crucial in ensuring that the law is followed.
I would not say that Surrogacy amounts to ‘’baby selling’’ or is a concept or ‘rent a womb’, because it gives an opportunity to couples who struggle to birth a child due to various complication. It is a way to provide these couples a beautiful chance of being a parent and starting their own families, they cannot be denied the right to have a child. Surrogacy is not a monetary business and cannot be termed so.
However, terms of Surrogacy contracts should be clearly laid down and a proper balance should be maintained between the Surrogate mother and intended parties. A surrogate mother’s right and dignity should always be protected.
In an effort to control surrogacy contracts and legislation in India, the Surrogation Regulation Bill of 2016 also has some drawbacks. Only heterosexual couples and people who choose to be single parents are allowed to take down the road of surrogacy, which is a defect in the law. India urgently requires a specific law to regulate and oversee surrogacy in order to solve issues including access to surrogacy, liability difficulties, the child’s best interests, and paternity.
BY- SALONI BHATT
UNIVERSITY OF PETROLEUM AND ENERGY STUDIES
[1] Surrogacy – https://en.m.wikipedia.org/wiki/Surrogacy
[2] (M.M Thieu) (Altruistic Surrogacy- The necessary Objectification of Surrogate Mothers )(Vol.35, 2009)
[3] Labour of love: Gestation surrogacy and the work of making babies, (Heather Jacobson),2016
[4] Commercial Surrogacy – http://www.penacclaims.com/wp-content/uploads/2020/06/Digvijay-Singh.pdf
[5] The Indian Contract Act ,1872
[6] Article 14 of Indian Constitution – https://indiankanoon.org/doc/367586/
[7] G NARAYAN, National Institution of health(gov) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10199460/
[8] Baby Manjhi Yamada v. Union of India and Anr (2008) NO. 369 of 2008
[9] Jan Balaz v. Anand Municipality (2009) L.P.A NO.2151 of 2009
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