Surrogacy Laws in India: A step towards equality and inclusive society

ABSTRACT –

In a Country like India, mainly in earlier times word “SURROGACY” is not that familiar to everyone. Still, nowadays the term Surrogacy is used commonly which means the couple who cannot become parents rely on another woman to carry their babies.  It was first introduced in India in the year 1980 and legalized in 2002. In India Surrogacy is allowed for a married couple who have Indian citizenship, a loving partner, a single woman, and also foreigners. The Surrogacy (Regulation) Act 2021 methodize surrogacy in India and hinder commercial surrogacy. This Act is used to protect the rights of the surrogate mother and the children born through surrogacy it also promotes ethical and altruistic surrogacy practice.

Keywords –

Legalized, commercial surrogacy, The Surrogacy (Regulation) Act 2021, Surrogacy

INTRODUCTION-

Surrogacy is a rising healthcare issue that affects both men and women, and it can have an impact on a number of factors including age, genetics, lifestyle, and environmental factors.

the concept of surrogacy as both men and women equally facing the healthcare problem of infertility and parenthood is no longer restricted to the heterosexual community. The development of an artificial reproductive procedure strengthens people of all gender to become parents with surrogacy. Surrogacy means the practice of using the womb of another woman to carry their fetus to grow by another woman. The word surrogacy comes from the Latin word which means a substitute, Americans introduces a law report which defines surrogacy as a contract wherein the biological mother or the surrogate mother, in exchange for payment, agrees to conceive the natural father’s sperm and give it to the natural father, terminating her parental rights after the kid is born. It can be divided into two categories: charitable and commercial, in which altruistic means surrogacy induces no financial compensation for the surrogate, and commercial simply means involving payment to the surrogate for the surrogacy, Commercial surrogacy was legalized in India between 2002 to 2015

In a time of legalization, the business of commercial surrogacy grew the vast number of unprivileged women impatient to make a fair by giving or renting their wombs. In 2012 the annual movement of this surrogacy market was under 2.5 billion USD, till now there is no clear data has been given, and the verified surrogate mother at the time of legalization. The estimated data has been released which is equal to 25,000 according to this around 25,000 surrogate children are born in India every year a minimum of 50% for couples from the Western world. As surrogacy became more and more prevalent around the world, various legal frameworks were developed in various nations. Complex legal issues arose as each nation’s legal framework tried to achieve a different result. Regardless of whether they intended to promote, regulate, or outright prohibit surrogacy, the regulations were so numerous and varied. While surrogacy is legal in the USA, Georgia, Ukraine, and Colombia, other nations—including Iceland, Germany, Sweden, and Austria—have enacted restricted legislation. As a result, nationals from nations that had outlawed surrogacy began commissioning it elsewhere, which led to legal issues when competing laws were applied internationally. This legal dispute also sparked questions regarding evasive travel. Due to the rise in demand and the absence of international coordination and regulation, the influx of cases into India cleared the path for unethical behavior and exploitation. Due to the huge financial gap and the difference between individuals committed to the practice of commercial surrogacy both the surrogate and the child are susceptible to exploitation. They received numerous reports of surrogate mother harassment in the years 2018 and 2019. In 2019, human rights exploitation rings using surrogacy as a cover were discovered, and arrests were made.  They demonstrated the urgent necessity for surrogacy legislation to be implemented. The Indian government was compelled to take action and introduce the Surrogacy Regulation Bill of 2015 as a result of the uprising of the demand and the immoral practices that led to the mistreatment of vulnerable populations. At the same time, a need for regulations necessary to protect the rights of commissioning parents was brought up. The subject was brought up in the Lok Sabha of the Indian Parliament on December 4, 2015, when the government decided to forbid commercial surrogacy in its response to Question 100. Due to this, the Surrogacy (Regulation) Bill was created in 2016 and, after experiencing countless revisions, was approved by the Lok Sabha in 2018. The Surrogacy (Regulation) Bill 2019 was the subject of a committee established by the Rajya Sabha, whose work resulted in additional revisions, which led to the bill’s passing into law on December 25, 2021. Just one week before, it and the Assisted Reproductive Technology(Regulation) Act, of 2021, were both published. The revised Surrogacy (Regulation) Act, 2021 entered into force on January 25, 2022. To prevent individuals with financial capabilities from misusing and taking the privilege of the surrogacy option, the amended act only enables altruistic surrogacy. Along with commercial surrogacy, the trade in human gametes and embryos is prohibited.

Research Methodology

In order to conduct a thorough examination of the surrogacy legislation in India for this paper’s descriptive purpose, secondary sources like newspapers, journals, and websites were consulted.

Review of literature

The Surrogacy Regulation Act 2021

The ‘intending couple’ is the couple who are an infertile married couple as per the act the women are aged 23 to 50 age and the man who is at the age of 25 to 55 years. The couple should not have their living children to get the certificate for eligibility to do surrogacy. The only chance in which this clause can apply is when the living child has disabilities either mentally or physically, this Act also allows Indian widows, divorcees, and married couples who belong to Indian origin staying in abroad to become parents through altruistic surrogacy. The Indian widow or divorcee woman aged between 33 to 45 can become a surrogate mother and is referred to intending woman. 

The new law defines ‘surrogate mothers in many ways and it has been upgraded in the following ways :

• Any married woman between the ages of 25 and 35 who is expecting a child is also eligible to become a surrogate (b). However, if the embryo transfer fails, she may make up to three attempts. (c) The medical professional must certify that the patient is both physically and mentally fit for the surgery. By virtue of the legislation, (d) they are unable to provide their gametes for surrogacy, and (e) they are not entitled to any compensation for carrying the child beyond the costs of insurance and medical treatment. (f) For 36 months, insurance must pay for all problems related to childbirth, such as postpartum or even death.^[1]

Additionally, the Medical Termination of Pregnancy Act of 2019 gives the surrogate mother the option to cancel her participation even before the embryo is implanted in her womb and, if necessary, even to end the pregnancy.

Requirements for Surrogacy as per act

The act which is passed says only those cases who can satisfy the following situations would be qualified for the surrogacy procedure where there are medical suggestions This indication certificate must be issued by the District Medical Board in the commissioning party’s favor when  (a) Parents should belong to Indian origin ( b) The intended mother is a divorced or widow ( c) The surrogacy is for the charitable purpose (d) Financial profits or any money relations should not be involved.

Threats to ethical, social, and legal structures posed by the Surrogacy Regulation Act of 2021 – Critical thoughts on Indian society’s ethos, including implications of coercion and perspectives on death:

To prevent the exploitation of women, the current Act maintains a strong check and balance . They make an effort to cut out the rapacious middleman, Both the value of motherhood and any potential parental rights to the child are protected and upheld by it. But now that commercial surrogacy is illegal, the emphasis is on needs rather than rights. It should be up to each individual, not the government, to decide whether or not they are allowed to have children and how many they desire. To base the tenets of this Act’s provisions on pay is disrespectful and merely conveys conservative viewpoints.

The recent act bans the following groups from utilizing surrogacy services –

Couples having one child, foreign nationals, in-residence partners, or people who stay in living relations, single men, women, gays, lesbians, or widowers

The Act does not specifically include gender bias when alluding to the child to bear, it does not address the smooth complexities of an already complex percentage

 This simply makes surrogacy illegal in socially unprivileged areas, laying the groundwork for a patriarchal and hetronomative society

Women’s rights

The unmarried women are legally permitted to do abortion, they can do under the 2021 amendment of Medical Termination of Pregnancy act 1971, while this act sees the rights of the women on her own body, the surrogacy act avert unmarried women from availing of the service of surrogacy.We have seen some illustrations of human rights abuse in women in the setting of commercial surrogacy Additionally, there have been examples of where it gave them a respectable life, financial independence, and even the chance to educate their kids to ensure their future. Moreover, there is a fundamental right for women for their reproduction and it is the permanent segment of her freedom and liberty as per Article 21 of the Indian constitution Reproductive autonomy is controlled and the favorable provisions are restricted to a segment of society when surrogacy eligibility and surrogate recruitment are determined by the social construct of marriage.

Surrogacy and the LGBTQIA+ Community

The 2021 act bans homosexual couples from using altruistic surrogacy. It plays a cliche type view of a family not only in the dynamics of unfreedom in their household but also by assuming that women lack autonomy. According to Indian law, societal norms, and religious teaching, a child’s holistic development requires that both parents come from opposite sexes. Contrary to this way of thinking, this theory is based on hypocrisy because it allows widowed and divorced women to use ART treatments. This is discriminatory and disallows surrogacy for members of the LGBTQIA+ community. It’s interesting to note that one can still assert that the Act upholds the 1948 Universal Declaration of Human Rights, which India accepted. Men and women of full age “have the right to marry and have families without any discrimination based on race, ethnicity or religion,” according to Article 16  of the Declaration.  The Indian judicial system recognizes this and views the right to procreation as fundamental. For instance, in B. K. Parthasarathy v. Government of Andhra Pradesh, the Andhra Pradesh High Court declared that “the right to reproductive autonomy” is comprehensive within the “right to privacy” and acknowledged that the freedom to reproduce is a legitimate civil right.

Section 377 was collectively ruled to be unlawful by the Supreme Court of India in the case of Navtej Singh Johar v. The Union of India.  The learned judges judging this case declared that it is against the fundamental rights to equality, freedom of speech, the right to make one’s own decisions, and the right to dignity to “attack” the LGBTQIA+ group because of their sexual orientation. Additionally, it was guaranteed that members of the LGBTQIA+ community would get equal treatment under the law and in society without encountering any stigma.

The SURROGACY (REGULATION) ACT, 2021’s effects on India’s estate planning

This law significantly affects India’s surrogacy industries. –

Commercial surrogacy is forbidden Commercial surrogacy is outlawed in India by the Surrogacy (Regulation) Act, 2021. According to the law, a commercial surrogacy is one in which the surrogate mother receives compensation in addition to her medical costs and insurance coverage. solely altruistic surrogacy is permitted by the law, which is a surrogacy arrangement in which the surrogate mother solely receives reimbursement for her insurance and medical costs.

A big step towards controlling the surrogacy market in India has been the outlawing of commercial surrogacy. In India, commercial surrogacy was unregulated, and clinics there provided surrogacy services to clients from all over the world. Several instances of surrogate mother exploitation resulted from a lack of regulation, and The business was charged with running a human trafficking ring. Numerous surrogacy facilities in India will close as a result of the ban on commercial surrogacy. The Indian surrogacy market will need to adjust to the new laws, and parties will need to make sure they abide by them. Since altruistic surrogacy is probably less common than commercial surrogacy, the outlawing of commercial surrogacy will also result in fewer surrogacy partnerships in India.^[2]

Prohibition on Commercial Surrogacy

Wombs are given on rent for surrogate mothers in India and they typically receive payments of 3 to 4 lakh rupees. Premila Vaghela of Ahmadabad, Gujarat, a surrogate mother, passed away from complications in 2012 after giving birth to a premature baby in the eighth month of her pregnancy as a result of a sudden seizure episode. The baby was taken to a neonatal intensive care unit. The surrogate mother passed away from a heart attack at the hospital. The commissioning parents were not the subject of a police report. The amount decided upon by both the American couple was provided to Premila’s family. According to the Surrogacy (Regulation) Bill 2019, commercial surrogacy would no longer be permitted and performed in India. The justifications for the prohibition of commercial surrogacy are:

1- In the name of commercial surrogacy, surrogate moms were exploited.

2 -Commercial surrogacy involves monetary and non-monetary payments to surrogate mothers

   which drew the attention of poor and uneducated women and in the belief of earning money they were willing

3- went through the process and deteriorated their health.

4- India became a baby-making factory due to never-ending demand from international intending couples.

5- Many intending parents left or refused to take custody of the child if the child was born with any kind of illness or physical inability.

Many of times children born from the process of commercial surrogacy were either sold or

used in prostitution or other form of exploitation.^[3]

There are many issues related to surrogacy

Moral issue –

Medical practitioners had a lot of exposure to the surrogacy process with time and help and inform people and let the infertile couple, gay, single, and lesbian enjoy the feeling of becoming parents still in it is a taboo for the people in many countries, many of them still feel embarrassed about there infertility and can not open up in the society to talk about it or to do the procedure. There are many moral issues related to surrogacy in society, especially in the village area and the backward cities of the countries where people still are not able to accept this concept of surrogacy, and the women who are poor are exploited to choose the path of surrogacy and put their womb on rent

Legal Issues –

All types of surrogacy are ban in some nations, causing infertile couples to go to other nations for surrogacy and then return home after the birth of their child. In these situations, there are legal concerns about the child’s entrance and granting of citizenship.  If a nation forbids surrogacy, its government will deny citizenship to a child born through surrogacy, even if it occurs in another nation. Such a nation views the birth mother as the kid’s legal mother and thinks the child ought to be granted citizenship of the nation where the legal or birth mother resides. Many countries allow surrogacy but only altruistic surrogacy they don’t allow commercial surrogacy, these countries are having their special law regarding the same and one needs to remain under the laws of adscititious parenthood through the process of surrogacy. There are many parameters set by the government for the women who are willing to become a surrogate mothers, they need to fulfill the health measures and many other rules. The rules are not only for the surrogate mother but also for the commissioning parents and the doctor.

Making of National Surrogacy Board –

A National Board was established by the Surrogacy (Regulation) Act to oversee surrogacy contracts in India. The board is in charge of approving clinics’ requests to provide surrogacy services and making sure that surrogacy agreements are carried out in accordance with the law. A key step in regulating the surrogacy sector in India has been the creation of the National Surrogacy Board. The absence of regulation has resulted in several instances of surrogate mothers being exploited, which has damaged the reputation of the surrogacy sector in India.

Benefits of Surrogacy

Surrogacy is an outgoing the couples and the parents, who want to have a child but can not conceive due to one the natural reasons or another

1- with advancing technologies, the parents are benefited from gestational surrogacy, where the original parents have biological connections with the child

2- The child is actually free from any health risk because the law orders through screening or health checks of the surrogate mother, and it is beneficial for both mother and the child

3-Another benefit is the money factor that is associated with surrogacy, the surrogate mother is monetarily assisted in every step of the pregnancy. ^[4]

SUGGESTIONS:

1. Stop the exploitation of Surrogates and the Child: The nation requires to defend a child’s right to birth and terminate using poor and needy women as surrogates
2. Abolishment of Reinforces Patriarchal Norms: Reinforces patriarchal norms are needed to be abolished as the conventional patriarchal ethics of our community play little importance in the labor of women
3. Stop denying surrogates a valid source of income: Surrogates women are not furnished with a proper source of income
4. Encouraging third-party involvement: In present times, there is no involvement of third-party. Involvement of third-party assures that there is emotional as well as financial support

Conclusion –

By choosing surrogacy, a person brings a new child into the world. Therefore, why introduce a new one when many people are already in poverty and in need? Many parents who are unable or unwilling to conceive chose IVF or surrogacy over adoption in the name of biological heirs, despite the fact that there are millions of orphaned children in India.  Even if a childless couple wishes to adopt a child, the adoption process is such a complicated system that it puts pressure on the couple to pursue other options, such as IVF and surrogacy, in order to experience motherhood. A non-Hindu is not permitted to adopt a Hindu kid under the 1956 Hindu Adoption and Maintenance Act, and guardianship rather than adoption is permitted under the 1890 Guardian and Ward Act. A straightforward adoption process will slow the pace of surrogacy. When referring to the ban on commercial surrogacy, it has both benefits and drawbacks. The rights of the surrogate mother and the child may be preserved if commercial surrogacy is not outlawed. Women should be compensated for renting their wombs and given some thought in exchange for endangering their health. Why not legalize commercial surrogacy and safeguard the rights of the surrogate mother and child because it is still performed in many areas even after being outlawed? On the other hand, if we discuss the benefits of outlawing commercial surrogacy, we find that it is more expensive than altruistic surrogacy because it involves paying the surrogate mother financial benefits in addition to the legal and medical costs incurred by the intended parents.  Additionally, commercial surrogacy exploits poor and defenseless women who agree to become surrogate mothers and put their health in danger in the name of a better future and financial gain.

REFERENCES

1 –  The surrogacy regulation act  of 2021: Right step towards an Egalitarian and inclusive society, Tarun Kumar Suvvari

(PDF) The Surrogacy Regulation Act of 2021: A Right Step Towards  (Last Visit August 2023

2-The impact of new surrogacy ( regulation ) 2021 on surrogacy arrangements in India, Adil Abas

https://legalvidhiya.com/the-impact-of-the-new-surrogacy-regulation-act-2021-on-surrogacy-arrangements-in-india/  ( Last visit August 2023)

3  Surrogacy in India , its Legal aspect in India, Priya vinjamuri https://www.researchgate.net/publication/363249468_SURROGACY_IN_INDIA_ITS_LEGAL_ASPECT_IN_INDIA ( Last visit August 2023)

4- The impact of the  New surrogacy (Regulation ) act on surrogacy arrangement in India ,Adil Abas https://legalvidhiya.com/the-impact-of-the-new-surrogacy-regulation-act-2021-on-surrogacy-arrangements-in-india/ ( Last visit August 2023 )

5-  Benefits, Exploitations of Surrogacy And Regulation by Indian Contract Act, 1872 , Varsha

https://bnblegal.com/article/benefits-and-exploitation-of-surrogacy-surrogacy-laws-in-india/

(Last visit August 2023)

Aditi Singh

CMR UNIVERSITY SCHOOL OF LEGAL STUDIES,BENGALURU

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^[1] The surrogacy regulation act  of 2021: Right step towards an Eglitarian and inclusive society , Tarun kumar suvvari 

^[2] The impact of new surrogacy ( regulation ) 2021 on surrogacy arrangements in India, Adil Abas

^[3] Surrogacy in india , its Legal aspect in india , Priya vinjamuri

^[4] Benefits , Exploitations of Surrogacy And Regulation by Indian Contract Act , 1872 , varsha