girl, teenager, human

 SURROGACY: MOM AT MARKET

ABSTRACT

This paper chiefly categorized the arena of surrogacy, legislation, and judicial verdicts regarding surrogacy. This paper also revolves around the history of surrogacy, how it was nurtured with time, the commercialization of surrogacy, and reproductive tourism in India. A brief data regarding the SURROGACY BILL 2021 has also been explored in this paper. Also, there is a thin line comparison between ethical and commercial surrogacy. The Role of various institutions has been explored in this research paper as well. The Role of the Central and State governments, ICMR, and NCW have been evaluated in this paper in detail.

Keywords: Surrogacy, ART, Blessings, IVF, Fertility, Motherhood and Reproductive   Tourism.

INTRODUCTION

As said by Robert Browning, “Motherhood: All love begins and ends there”[1]. Women are considered divine in our society since they are bearers of new lives inside them. Almighty has given them such a wonderful gift that no other creature has got. They can feel a life growing inside them. But, unfortunately, childlessness is a big growing issue in our present society. As per the recent report of W.H.O infertility in the world including India is around 10%-15%[2]. It may be due to many reasons such as low sperm count, any health problems affecting the uterus of women, male infertility, or even many times unexplained infertility. Reproduction is an instinctive characteristic of human beings. It is a heartbreaking injunction for any parent. It is as if they are being punished since reproducing is one of the basic features of humans. When two individuals of the opposite sex come together and give birth to a new individual, they are considered complete. But one in every six couples in India has problems with reproduction[3]. Childlessness is considered a catastrophe in our society. Earlier childless couples had only one option for having a child and that was to incline towards adoption. But with the recent advancement in medical science option of giving birth to a genetic child is a feasible option. One such option is surrogacy.

RESEARCH METHODOLOGY

All academic and legal research is conducted in the area of surrogacy and its significance in modern society. We will look at its history, various laws, and legislations regarding it. A brief idea of the Surrogacy Bill 2021 will also be discussed. This research paper is mostly based on legal journals, research papers, websites, and various reputed newspapers. It is a mixture of academic and legal research knowledge that is importantly covering the areas of the Right to reproduce and the societal gray point of view toward it.

REVIEW OF LITERATURE

The word ‘Surrogacy’ is taken from the Latin term ‘Surrogates’ meaning substitute[4]. It is an exercise where a woman called a surrogate woman gives birth to the child of someone else, who is generally infertile, in her own body to give that child back to the intended parents. It is an unconventional way of giving birth to any new life.

Medically, there are two types of surrogacy present in our society. They are Traditional Surrogacy and Gestational Surrogacy. The biological mother of the child is the natural mother in traditional surrogacy.. The egg of the surrogate mother is fertilized with the sperm of someone else’s husband through assisted reproductive technique. In gestational surrogacy, the wife is fertile but not capable of nurturing a young one in her own body. So, her fertilized egg with the sperm of her husband is embedded in the body of the surrogate mother. There are two forms of the above-mentioned surrogacy. They are Commercial Surrogacy and Altruistic Surrogacy. In commercial surrogacy, surrogate women are paid not only for medical expenses but also for things more than that. It is also sometimes called selling and buying human embryos for surrogacy[5]. In an altruistic surrogacy, surrogate mothers take money only to cover their medical expenses[6]. They do not take money for giving birth to the child.

HISTORY OF SURROGACY

The history of surrogacy can be traced back to Hindu mythologies.  In Bhagavata Purana, the first incidence of surrogacy can be traced when Vasudev prayed to Lord Vishnu to save his son as Kans was killing all his heirs[7].  As a result, Lord Vishnu took an embryo from Devika and transferred it to the body of Rohini. Rohini was the wife of Vasudev.  In this way, baby Balram was born. Vasudev told Kans that the dead baby had been born[8].
The instance of surrogacy can be seen in Mahabharata as well. When Gandhari delivered a semi-solid substance in place of giving birth to the child. Maharishi Vyas divided the semi-solid substance into hundred pieces and planted it into different pans, thus giving birth to a hundred Kauravas[9].
Apart from mythological stories, the first scientific data on surrogacy can be seen in 1976. Noel Keon was the first lawyer who brokered legal surrogacy[10].  Then it became a new wonder in our society[11]. It then picked up huge impetus with the introduction of Assisted Reproductive Technology (ART).  The first IVF baby in India was Kanpuriya. He was also the second baby in the world born through ART. This baby was the result of the exceptional efforts of Dr. Subash Mukherjee in Kolkata.

REPRODUCTIVE TOURISM

The commercialization of children is hard to accept, but it is happening in our country. A child is considered a symbol of love; binding family members of two opposite sexes and is considered a gift of GOD. Yet, the commercialization of children is happening in our country. India is among the very few countries in the world which have legalized surrogacy as early as 2002. Since then there was a boom in this industry. As per the report of the National ART (Artificial Reproductive Technique) Registry of India, there was a jump of 300 percent in the cases of Surrogacy in India in 2005 compared to the data of 2004 that is if we take 50 cases in 2004, we would have 160 cases in 2005[12]. India has become a huge hub of the surrogate market where in cities like Mumbai, Delhi, and Chennai we can find surrogate mothers easily. People across the globe visit here to have a child. Even many IVF centers advertise surrogate mothers publicly. A surrogate mother is easily available in our country. India is now a major global destination for reproductive tourism. A report backed by the United States of America exhibits that this industry generates an income of around $400 million per year, with over 3000 specialist clinics across the country[13]. As per the report of the newspaper The Hindustan Times in 2011, the baby producing market bearing its own cost[14]. From surrogate charges to surrogate compensation there is a different amount to be paid to the surrogate mother. Surrogate charges may be around INR 1, 00,000 –INR 3, 00,000. Egg donation may be around INR 2, 00,000. IVF procedure may be around INR 66,000. Surrogate charges may be around INR 66,000[15]. These cheap costs as per the international market attract couples towards India. Now, many social activists and NGOs that protect the right of the child say that buying and selling children is immoral and unethical. Surrogate mothers in India usually belong to the lower strata of the society and they are often economically poor. They with or without her will are forced into this lucrative agreement usually by the third party who is generally her husband or close relatives because they are economically weak. In surrogacy, natural mothers are separated from their children. This leads to severe mental consequences on the mind of the mother and her child. It is often told mother’s love is the purest form of love. Poor Indian women become a source of exploitation by rich infertile couples. These women are generally uneducated.

LAWS ASSOCIATED WITH SURROGACY

Different countries have different views towards surrogacy and have different laws towards it. Countries like Germany don’t recognize and give citizenship to any child born through surrogacy. They say that commercial surrogacy is against the dignity of women and undermines their status. While countries like India recognize surrogacy and have given legal status to surrogacy but in a restricted manner. India has regulated surrogacy. Here, the right to reproduce is considered a fundamental right of a woman. A woman can choose when and with whom to reproduce. Also, the Right to Privacy in a broader sense says that it is her will how and with whom to reproduce.   While in some countries there is a free market for surrogacy. No restriction is applied to this medical ART process.

JUDICIARY IN THE ARENA OF SURROGACY

In many leading cases, we witness the judiciary coming in favor of surrogacy from past to present. In the landmark judgment of Baby Manji Yamada V. Union of India, in this case, a baby child was born through surrogacy. But, the intended mother refused to accept the child as she had taken divorce from her husband. The father of the child had also to return to Japan since his visa was canceled because of his divorce. Now, a question came before the Honorable Supreme Court of India to whom the custody of the child should be given? Finally, the court decided to give custody to the grandmother of the intended child. But, because of the judicial process, the child had to wait for three months nearly in India.

The Honorable Gujarat High Court in Jan Balaz V. Union of India gave a remarkable judgment answering the citizenship of a surrogate child of a German Couple[16]. Now, at that time in Germany surrogacy had no legal status, so the German government refused to give citizenship to the surrogate child. Then, the parents moved to the Indian government demanding Indian citizenship for their child. But, in India, there is no provision for dual citizenship, so the Indian government replied negatively. The two couples went to the Gujarat High Court where Court said that the couple should return to Germany assuring that, they can adopt their genetic child through German law. As per the court, the first right of the child is of the biological parents then the surrogate mother than anyone else. The newborn child is innocent so he should not be punished for the crime that she had not committed ever.

In the exceptional case of a gay couple – Yonatan and Omar, they got their child through surrogacy in India[17]. In Israel, same-sex marriage was not allowed, so they visited India for a child and they got one with the help of the fertility clinic of Bandra in Mumbai and returned to Israel[18]. All these cases forced the government to bring a surrogacy bill to India

The Supreme Court of India recognized the right to reproduction as a fundamental right under article 21 in Devika Biswas V. Union of India. The court highlighted that thereproductive right of a woman includes the right to carry a baby to the term of giving birth and raising the child.

In B.K. Parthasarathy V. The State of Andra Pradesh, the court said that the interference of the state to the reproductive function of its citizen is direct encroachment of one’s right to privacy which has been covered under Article 21[19].

The Honorable Supreme Court in Consumer Education & Research Centre V. Union of Indiathe court throw light that the term life under article 21 has a much wider meaning. Government should take into consideration this article before making any law and legislation as it may be against article 21 of the Indian Constitution[20].

The Supreme Court in Murlidhar Aggarwal V. The State of Uttar Pradesh the honorable court stated that public policy is not static. There is a need to evolve the policy from time to time from one generation to another or many times within the same generation for its better implications[21].

The SURROGACY (Regulation) Bill, 2021

The bill was introduced in the lower house of parliament (Lok Shaba) on Sep 14, 2020. It endeavors to regulate all the procedures and rights of babies born through ART which generally includes children born due to outside fertilization of egg with the help of sperm and placed in her body later. It tries to regulate ART clinics and banks, determines the condition of gamete donation and supply, determines the condition for offering ART services, determines the right of a child born through ART, erects national and state board, and punishes all the offenses and penalties.

As per the bill, all the clinics must be registered under the National Registry of Banks and Clinics of India. It will act as a database company for fertility clinics. All the fertility clinics must adhere to its provision or else there would be a termination of the license. All the licenses would have to be renewed after 5 years. The age of the sperm donor should be between 21 to 55 years ago. The age of the woman who is donating an oocyte should be between 23 to 35 years of age. She must be married and should have at least one alive child. Not more than seven oocytes can be retrieved from a single woman in her life. A child born through ART will enjoy all the rights of the child of the commissioning couples. The child will not be considered the legal child of the man who donates sperm. Abandoning and exploiting a child is considered a crime in this bill. Selling or purchasing human sperm and embryo is a crime under this bill. Using intermediaries is also considered an offense under this bill. The punishment may range from five to ten lakhs for the first intervener and may extend to eight to twelve lakhs with imprisonment up to ten to twelve lakhs. These are some of the silent features of this bill.

ROLE OF STATE AND ITS AGENCIES

The idea of carrying the child of another couple seems to be great but there need laws and regulations to protect the interest of the surrogate mother, commissioning parents, and the child. Typically, the surrogate mother is ignored after giving birth to a child so there should be legislation to protect the interest and medical expenses of the surrogate mother after giving birth to a child. The citizenship of the surrogate mother is also a question that comes into the limelight during surrogacy. If the child is not adopted by the commissioning parents, he or she should be given the citizenship of India. Proper regulations should be drafted to check the activity of fertility clinics since these clinics charge arbitrary amounts from childless couples and exploit them excessively. Now, the role of central and state governments comes into play here. Government should check the commercialization of surrogacy. The state government should look to draw surrogate mothers out of poverty since most of the surrogate mothers are poor and hence lured by the money. Employment generation schemes should also be announced for surrogate mothers.

Indian Council of Medical Research (ICMR) is of the opinion that surrogate mothers should go for at least three times medical tests before going into surrogacy so that there should not be any adverse effects of pregnancy on their health[22]. ICMR is also in favor of altruistic surrogacy than commercial surrogacy since there is less chance of exploitation of a woman when pregnancy happens of her will. ICMR also suggests that the identity of a woman should not be disclosed publicly since the stereotypical society may start to defame the surrogate mother. Also, there would be less chance that the woman would be a victim of commercial surrogacy when her identity is not disclosed.

National Commission for Woman (NCW) is another institution who chiefly demands that the guidelines of ICMR is not enough. NCW suggests that there is a need for right-based legal framework to immune the interest of surrogate mothers[23]. ICMR suggests that a copy of contract should be given to the surrogate mother in order to protect her from the conspiracy of fertility clinic and commissioning parents. Many a times a hidden agreement is done between them.NCW also suggests that there should be a coverage of insurance in the agreement between the contracting parties in the surrogacy since in case of any mishap all the burden has to be faced by the surrogate mother only. Commissioning parents leave the child and the surrogate mother alone. Another important government institution is The Ministry of Woman and Child Development (MWCD) which talks about legal and natural rights of the child.

RESEARCH METHOD

All the academic and legal research conducted on this topic is based on newspapers analysis especially the reputed ones like The Hindu and The Indian Express. Synopsis of their articles is fetched from the editorial of the newspaper. Apart from that, some blogs sites like iPleaders, and SCC online have also been explored to have authentic data to be fetched. The brief idea of Assisted Reproductive Bill 2021 has been quenched from the official website of the Ministry of Health and Family Welfare website.

Suggestions

It is high time to break the myth that surrogacy is immoral activity. It should be taken as an essential medical practice after ensuring that the rights of the surrogate mother and the pre-born child are preserved[24]. The barren woman gets the child. Childlessness is looked at as evil in our society. The need for the hours is to have a better implementation of legislative measures. It should not be looked taboo. Even many celebrities adopted this method. Some of the remarkable are Karan Johar, Tushar Kapoor, Shilpa and Raj, and many more. The list is non-ending. So, it is time to look at it as a medical condition. The focus of surrogacy should be on the well-being of the surrogate child than anything else. Globalization has also affected surrogacy a lot. People know all the viable options they have across the globe for children and move for the best pocket-friendly option they can.

CONCLUSION

 At the international level, the concept of surrogacy is quite debatable. There is a greater chance that the woman may be exploited and the child may not get his natural right. Even chances that society refuses to accept it is quite common. Children that are born with some disabilities are often abandoned by the intended parents. With the identification of diseases, the child which was an asset to the parents had turned into a mere liability. Even various laws and acts have been legislated but the implementation is quite poor. But, these are the only darker side of surrogacy; the brighter side is that India is a place where effective surrogacy is available. Childless couples can have a child on a pocket-friendly budget. Also, with the advancement of medical science, the success rate has sprung beyond the imagination of anyone and the complication rate is quite low. Infertility is a common reproductive problem that can be crossed with the help of assisted reproductive techniques. Parenthood is a gift, and one should take use of it.

           Rishi Kumar Singh                                                   Lloyd law College, Greater Noida.   


[1] SCC ONLINE BLOG, https://www.scconline.com/blog/post/2021/09/27/reproductive-health-and-surrogacy-in-india/, (last visited April 7, 2022).

[2] Divyansh Singh Sisodiya, https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-constitution,  (last visited  April 7, 2022)

[3] Divyansh Singh Sisodiya, https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-constitution,  (last visited  April 7, 2022)

[4] Divyansh Singh Sisodiya, Surrogacy  Under Framework of the Indian Constitution, Ipleaders, (7 April 2022, 3:20 A.M) https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-constitution  

[5] Nishant Vimal, Surrogacy Law in India, Ipleaders, (7 April 2022, 3:40 A.M), https://blog.ipleaders.in/surrogacy-laws-india/

[6] Nishant Vimal, Surrogacy Law in India, Ipleaders, (7 April 2022, 3:50 A.M), https://blog.ipleaders.in/surrogacy-laws-india/

[7] Divyansh Singh Sisodiya, Surrogacy  Under Framework of the Indian Constitution, Ipleaders, (7 April 2022, 4:20 A.M) https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-constitution  

[8] Divyansh Singh Sisodiya, Surrogacy  Under Framework of the Indian Constitution, Ipleaders, (7 April 2022, 5:20 A.M) https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-constitution  

[9] Divyansh Singh Sisodiya, Surrogacy  Under Framework of the Indian Constitution, Ipleaders, (7 April 2022, 5:30 A.M) https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-constitution  

[10] SCC ONLINE BLOG, https://www.scconline.com/blog/post/2021/09/27/reproductive-health-and-surrogacy-in-india/, (last visited April 7, 2022).

[11] SCC ONLINE BLOG, https://www.scconline.com/blog/post/2021/09/27/reproductive-health-and-surrogacy-in-india/, (last visited April 7, 2022).

[12] Divyansh Singh Sisodiya, Surrogacy  Under Framework of the Indian Constitution, Ipleaders, (7 April 2022, 9:30 A.M) https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-constitution  

[13] Divyansh Singh Sisodiya, Surrogacy  Under Framework of the Indian Constitution, Ipleaders, (7 April 2022, 10:30 A.M) https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-constitution  

[14] Divyansh Singh Sisodiya, Surrogacy  Under Framework of the Indian Constitution, Ipleaders, (8 April 2022, 5:30 A.M) https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-constitution  

[15] Divyansh Singh Sisodiya, Surrogacy  Under Framework of the Indian Constitution, Ipleaders, (8 April 2022, 9:30 A.M) https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-constitution  

[16] Nishant Vimal, Surrogacy Law in India, Ipleaders, (9 April 2022, 3:40 A.M), https://blog.ipleaders.in/surrogacy-laws-india/

[17] Divyansh Singh Sisodiya, Surrogacy  Under Framework of the Indian Constitution, Ipleaders, (10 April 2022, 9:30 A.M) https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-constitution  

[18] Divyansh Singh Sisodiya, Surrogacy  Under Framework of the Indian Constitution, Ipleaders, (10 April 2022, 9:30 A.M) https://blog.ipleaders.in/surrogacy-under-framework-of-the-indian-constitution  

[19] SCC ONLINE BLOG, https://www.scconline.com/blog/post/2021/09/27/reproductive-health-and-surrogacy-in-india/, (last visited April 11, 2022).

[20] SCC ONLINE BLOG, https://www.scconline.com/blog/post/2021/09/27/reproductive-health-and-surrogacy-in-india/, (last visited April 11, 2022).

[21] SCC ONLINE BLOG, https://www.scconline.com/blog/post/2021/09/27/reproductive-health-and-surrogacy-in-india/, (last visited April 11, 2022).

[22] Dr.Ranjana Kumari, Surrogate Motherhood-Ethical or Commercial, wcd.nic.in, (12 April 2022, 5:20 P.M), https://wcd.nic.in/sites/default/files/finals%20report.pdf,

[23] Dr.Ranjana Kumari, Surrogate Motherhood-Ethical or Commercial, wcd.nic.in, (12 April 2022, 5:20 P.M), https://wcd.nic.in/sites/default/files/finals%20report.pdf,

[24] The Indian Express. https://indianexpress.com/article/cities/ahmedabad/surrogacy-not-an-immoral-activity-should-consider-it-as-an-ethical-practice-doctors-say-7832606/ ,  (last visited 13 April 2022)