Surrogacy Under Indian Law: An Appraisal
Pratiksha*
Introduction
The calling to have children
among a couple is universally common and the same applies to India, where
society has worked constantly for family growth and having children. India is a
country where the joy of becoming a mother or becoming a parent is considered
the greatest pleasure. But it is not everyone's destiny. Many couples in India
are incapable of bearing children of their own the WHPO report states that 15%
of couples suffer from the problem of medical infertility.
However, medical infertility is
not the only cause of infertility. In the past few decades, a distinct type of
infertility known as social infertility has evolved. This means the
incapability of an individual to procreate a child due to various social
circumstances in life[1].
For example, widowed, divorcees, single individuals, etc.. may be fertile but
they are unable to have a child unless they marry. Even homosexual couples
cannot have children. Having a child requires a sexual union between a man and
a woman[2].
In order to accommodate such
couples and individuals, traditional methods of adoption were developed,
however, these methods did not fulfill the natural innate desire of an
individual to have a child. This desire to beget a genetically related child
led to the development of various techniques, such as Artificial Insemination,
In-vitro Fertilization, Surrogacy, etc[3].
Surrogacy-
Meaning
Surrogacy derives from the Latin word surrogatus
which means replacement. Black's Law Dictionary defines surrogacy as an
"agreement wherein a woman agrees to be artificially inseminated with the
semen of another women's husband[4]”.
She agrees to conceive a child, carry the child to term, and after the birth,
assign her parental rights to the biological father and his wife". The
term 'surrogacy' simply refers to an arrangement in which a woman bears a child
for a married couple and then hands over the child after 9 months. The woman
who bears the child is known as a surrogate mother and the child born out of
such an arrangement is known as a surrogate child.
Types of Surrogacies:
-
- Traditional Surrogacy:
In this type of procedure, the
surrogate mother's egg is used, and the intended father's (donor's) sperm is
implanted inside the woman. The child born out of this method tends to have the
genetic features of the surrogate mother, and the surrogate mother is the
biological mother of the surrogate child. It is a simple method, the intended
mother does not undergo any fertility treatments, and the surrogate mother does
not undergo any treatment or egg retrieval since her eggs are never used.
Before In-Vitro Fertilization
(IVF) was recognized, this method was used.
- Gestational Surrogacy:
In this method, the egg and sperm
of the intended couple are taken out. The egg of the intended mother is
fertilized with the sperm of the intended father, and an embryo is created.
This embryo is then carried by the surrogate mother. In this method, the
In-Vitro Fertilisation mechanism is used.
In this case, the surrogate is not the biological mother, instead, she is the birth mother, and this method is preferred since there is no emotional connection. In addition, the child has the genetic qualities of the intended parents. Pre-implantation Genetic Diagnosis is also performed to ensure that the child is born healthy and free of any future diseases.
There are two more categories of surrogacies apart from the abovementioned: -
- Commercial Surrogacy/Paid Surrogacy:
This is the most common form of
surrogacy, in which the intended couple contracts with the surrogate mother
regarding payments and expenses. The couples are liable to pay for all the
medical and other surrogacy-related expenses.
- Altruistic/Unpaid Surrogacy:
The surrogate mother is not compensated in this situation; she does it for the welfare of society and the happiness of childless parents. The surrogate mother only gets paid for medical and pregnancy-related expenses. These are generally done by a person who is in relation (friends or relatives) to the intended parents.
History of Surrogacy in India
The concept of surrogacy is not
new to the world and has its origin in ancient times. It was mentioned in Greek
mythology and also in Indian mythology. The Mahabharata also describes the
Niyog (i.e. IVF in the present age) as a solution to the problems faced by the
Kuru brothers Pandu and Dhritrashtra.[5]
As
a primitive society, certain kinds of sons, such as Ksheraja- the son born to
the wife by another man, Gudaja- the son born to the wife by secret intimacy
with another, Nishad- the son born by a Shudra woman, Prasava- the son born to
a Shudra man, and Parasava-the son born to a concubine, were recognized as
valid as belonging to a Hindu
Legalization
of Surrogacy in India
The first reported surrogacy in
India happened in 1994 in Chennai[6].
And the first reported commercial surrogacy in India took place in 1997 wherein
a woman acted as a surrogate for money[7].
This incident received a lot of public attention and generated various debates
on the legality of surrogacy practices. And to deal with this issue the Indian
Council for Medical Research came up with certain guidelines in 2000 and
adopted Ethical Guidelines for Biomedical Research on Human Participants[8].
In this certain guidelines related to ART were mentioned. A Draft Guidelines
for Accreditation, Supervision, and Regulation of Assisted Reproductive
Technology Clinics in India was submitted by ICMR to the Ministry of
Health[9],
and this step was interpreted as the legalization of commercial surrogacy by
various websites and authors but that is not true.
These 2002 guidelines were
further updated and adopted by ICMR in 2005, but these were not binding
and their adoption and application were only voluntary. The Assisted
Reproductive Technology (Regulation) Bill and Rules were enacted in 2008,
although it was not officially enacted as a law.
But the 2002 bill legalized and
recognized commercial surrogacy. This attracted a lot of infertile couples from
different countries. They came to India in search of a woman who can rent her
womb and be a surrogate mother to their baby. And soon India became a
commercial surrogacy hub. But, this affected the health of women very badly. It
directly affected women's reproductive health and ultimately led to the
exploitation of women.
The failure of the Indian legal
system to deal with this issue came into the limelight in Baby Manji Yamda v.
Union of India. In this case, a Japanese couple came to India for surrogacy,
and to find a surrogate mother to give birth to their child. However, during
the pregnancy, the Japanese couple got divorced and the intended mother refused
to take the child. Though the intended father was willing to take care of the
child. But, the question arose what would have happened if the intended father
had also refused to accept the child?
Also in case law Jan Balaz v.
Anand Municipality and Ors., a German father filed a case against the passport
authority as they refused to grant a passport to his son born out of surrogacy.
In India, the mother's name is required for the passport. However, since the
child was born through surrogacy the father was unable to provide the mother's
name, the Gujarat High Court declared that a child born out of surrogacy to an
Indian mother is an Indian citizen and therefore ordered the authority to issue
the passport.
Rights of
Intended Parents
Intended Parents: Meaning
The intended parents are the
couples or in some cases, individuals who wish to beget a child with the help
of surrogacy[10].
They enter into an agreement with the surrogate mother to become legal
parents or legal parents of the child born to the surrogate. They are thus the
infertile couples or individuals who intend to have a child through the process
of surrogacy[11]and
are also known as commissioning parents[12].
A surrogacy arrangement can
present a number of legal issues. These issues include: do the intended parents
have the right to use the surrogacy arrangement to have a child, what if the
surrogate mother refuses to give the child, and how much control the intended
parent has over the characteristics and activities of the surrogate mother
during pregnancy? Hence the question arises whether the intended parent has a
right to control surrogacy practices and if so, to what extent?
Rights of Intended Parents
Different legislations enacted
all over the world have not explicitly stated the rights and duties of the
intended parents, but various case laws reveal the following rights of the
intended parents:
- Right to Select a Surrogate Mother
The right of the intended parent
to choose a surrogate mother can be justified. This is because since the
parents have the right to procreate with the help of a surrogate mother, they
should also have the right to choose the surrogate. However, this right to
select is not an absolute right and reasonable restrictions can be imposed by
the State. For example, a woman below 25 years, a woman who had already acted
as a surrogate 3 times, or a woman relative who is within prohibited degrees
cannot be selected as a surrogate mother.
- Right to impose restrictions upon surrogate
mother[13]
Every
parent wants their child to be healthy when they are born.
Therefore, the intended parent has a right to restrict the behavior and
activities of the surrogate mother during a surrogacy pregnancy. The surrogate
mother is bound to follow such rules. These restrictions cannot be unreasonable
and they must be necessary for the fetus's normal development[14].
- Right to Information and Visit Surrogate
Mother during Pregnancy
The intended parents have the
right to be provided with necessary information regarding the development of
the fetus and the health of the surrogate mother.
- Right to Custody and Parentage of Child
The intended parents are entitled
to custody and parentage of the child from the moment it is born since the
primary objective of surrogacy is to enable the intended parents to have a
child of their own.
Section 34(3) of the ART Bill,
2010 states that a surrogate mother shall relinquish all parental rights over
the child.
- Right to Maternity and Paternity Leave for
Intended Parents
In India, under the Maternity
Benefit Act, of 1961 as well as The Employees State Insurance Act, of 1948,
every working woman is entitled to get maternity leave with wages for 12 weeks.
The leave is given to ensure that the newborn child will get adequate maternal
care after birth. In Surrogacy also the baby is handed over to the intended
parent immediately after birth and therefore the intended parent shall be
provided with maternity leave so they can take care of the surrogate child.
Right of
Surrogate Mother
- Right to be Surrogate
Whether a woman has the right to
be a surrogate or not is one of the first questions that comes to our minds, is
there any legal provision prohibiting or permitting it? Sadly, this question
does not have an answer, as neither the international nor national legal
documents expressly mention the woman's right to be a surrogate.
Surrogacy legislation varies from country to
country. Some countries permit altruistic surrogacy[15], while others allow both
altruistic and commercial surrogacy[16], and some have entirely
banned surrogacy[17].
In India, this question has gained significance since India is becoming
a hub for surrogacy practices and many poor women are offering to be a
surrogate mothers. Therefore, it becomes necessary to develop specific
legislation. This is because a lack of legislation could lead to many unwanted
situations, and the right to be a surrogate mother is a fundamental issue that
must be addressed. Moreover, the right to rent a womb stem from three basic
human rights which are the right to personal liberty and right to privacy; the
right to ownership of the body; and the right to enjoy the benefit of
technological and scientific developments.
- Right to Personal Liberty and Right to Privacy
The right to life and personal
liberty is one of the most basic and fundamental rights enshrined in the
Universal Declaration of Human Rights, 1948. The right to procreate is also
considered a facet of the right to life and personal liberty.
The Supreme Court in Maneka
Gandhi v. Union of India[18]
held that in Article 21, the term “personal liberty” encompasses a wide range
of rights.[19]
In
addition, the concept of the right to personal liberty can be understood from
the words of Justice K. Ramaswamy, who noted that the right to life is a
fundamental right of every citizen to pursue happiness and excellence.
There are numerous dimensions of
the right to personal liberty and including the right to privacy, which has
evolved as a fundamental human right in India. In the case Gobind Singh v.
State of Madhya Pradesh[20],
the court held that the right to privacy is a fundamental right. Also, in R
Rajagopal v. State of Tamil Nadu[21],
the court determined that a citizen has the right to protect the privacy of his
own family, marriage, procreation, childbearing, etc. The court also held that
the decision related to reproduction is a personal matter in B.K Parthasarthi
v. Government of Andhra Pradesh[22].
From the above, it is clear that
the right to privacy includes the right to decide to bear and beget a child.
Therefore, this right includes the right to bear or beget a child for another
i.e. to rent a womb or the right to be a surrogate.
The
Surrogacy (Regulation) Act, 2021
The Act's primary objective is to
allow only altruistic surrogacy and outlaw commercial surrogacy. The Act
defines altruistic surrogacy as surrogacy in which there is no payment other
than for the surrogate mother's health costs, and the surrogate mother is a
relative or close friend of the intended parents.
Some of the Key features of the
Act include the following: -
The Eligibility Criteria of the Couple
- The intending couple should be legally married
for 5 years and the age of the female should be between 25-50 years and the
age of the male should be 26-55 years. Additionally, the couple should not
have another adopted child or child conceived naturally or through
surrogacy.
- Couples should have an infertility
certificate, either male or female suffering from infertility.
- Couples shouldn't be producing a child for
commercial purposes, sale, prostitution, or any other forms of
exploitation.
- In order to cover postpartum delivery
complications for the surrogate, an insurance policy with 16 months of
coverage should be issued.
- A certificate of essentiality and certificate of eligibility will
be issued only if all the above criteria are fulfilled by the appropriate
authority. The couple will become eligible for altruistic surrogacy
through this process.
Eligibility Criteria for Surrogate
Mother
- The surrogate mother should be a close
relative of the intending couple
- Her age must be between 25 and 35 years.
- She should be a married woman and should have
a child of her own.
- Should possess a certificate of medical and
psychological fitness.
- The surrogate mother should not provide her
eggs for surrogacy.
Other Provisions of the Act
- The clinic providing the surrogacy treatment
should be registered under this Act and the staff of that clinic should be
qualified as per the criteria mentioned in the Act.
- Surrogacy treatment facilities are required to
register within 60 days and renew their registration every 3 years.
- Commercial surrogacy is completely prohibited.
Only altruistic surrogacy is permissible.
- Any couple who intends to have a baby through
commercial surrogacy shall be fined up to Rs 50,000/- and imprisoned for 5
years. Further, if the same offense is committed multiple times, the fine
and imprisonment increase to 1 lakh and 10 years, respectively.
- Individuals, clinics, or organizations
involved in surrogacy or found exploiting surrogates would be subject to
ten years of imprisonment and a fine of Rs 10 lakh.
Why was
commercial surrogacy banned?
While surrogacy is beneficial for
infertile couples or individuals who want to start a family but it can also
lead to the exploitation of surrogate mothers and surrogate children in the
following ways:-
- In many cases the surrogate mother is not
treated well, they live in appalling conditions and are often not even
paid after giving birth to the child. To get paid they have to use legal
resources and other methods which can be both time-consuming and
expensive. The surrogate mother's body is used only to have a baby and
then she is left without any money which creates mental, physical, and financial
agony.
- Due to the commercialization of surrogacy,
there is an increase in child trafficking, as well as surrogate children,
face health-related issues.
- Surrogacy also has psychological
repercussions, in addition to the legal difficulties, women have been
mentally harassed and exploited in many cases[23].
But will banning commercial
surrogacy help?
Things that are in demand like
liquor shops, prostitution, etc once banned move underground and it makes them
more dangerous, illegal, and unregulated. In the same way, commercial surrogacy
is also in demand, and therefore banning it will not help. Rather strong
regulations should be made to regulate it and prevent the exploitation of young
and uneducated women. And prevent the emergence of the illegal market as well
as human trafficking.
Instead of banning, the
government could issue a license to the clinics and only those clinics could
offer surrogacy treatment.
Government can also provide free
counseling to the surrogate mother. Similarly, an official non-governmental
organization (NGO) can be formed to guide the uneducated woman and to help her
during her 9-month pregnancy[24].
A transparent compensation policy should be made between the intending couples and surrogate mothers so the women will not be left unpaid and in financial distress.
Conclusion and Suggestions
1.
Every society recognizes that human beings have a
right to procreate. Couples and individuals who are childless experience many
hardships and treatments associated with infertility.
2.
And considering how important the right to
procreation is, couples/individuals should have the right to access assisted
human reproductive technologies for conceiving a child.
3.
The government should establish separate courts to
deal with cases related to surrogacy and surrogacy contracts. This will help
the government in regulating illegal surrogacy or unregulated surrogacy
treatments, clinics, etc.
4.
The right to be an intended parent must be
recognized as a part of the right to personal liberty, the right to privacy,
and the right to procreation. But, the government should have the right to
impose reasonable restrictions.
5.
The rule regulating surrogacy shall specify clearly
the eligibility criteria for an intended parent. In addition to infertile
couples, same-sex couples and individuals should also be allowed provided that
at least one partner contributes genetic material to a child.
6.
The rights and duties of the intended parents
should be specified clearly.
7.
The right to act as a surrogate for another must be
a facet of the right to personal liberty and privacy of a woman. However,
reasonable restrictions can be imposed on the rights of a woman.
8.
The eligibility criteria should include unmarried,
married, divorced, or widowed women. But the age criteria should be specified
as above 25 and below 45 years of age.
9.
A surrogate mother should be allowed to bear only 3
children in her lifetime including her own children. And a surrogate mother
must be free from any hereditary or communicable disease and must be physically
and mentally fit to carry a child.
10. The rights
and duties of a surrogate mother should also be specified. And they should be
made aware of the same duties and rights in order to avoid the exploitation of
such women.
11. All
surrogate contracts, whether altruistic or commercial must be considered valid
and enforceable. Making it illegal will only make its regulation difficult.
12. Surrogacy
clinics must be registered, and the intended parents and surrogate women must
be informed of the mandatory vetting requirements[25].
[1] Camelia Soo, "Babies for the
Socially Infertile: How Concievable is it?, 12 The New Zealand Medical Student
Journal 27 (2010)
[2] Ibid.
[3]John A. Robertson, "Assisted Reproductive Technology and the
Family, 47 Hastings Law Journal, 911
[4] Bryan A. Garner (ed.), Black's Law Dictionary, West- Thomson Reuters,
U.S.A (6th ed.- 1990), p. 1445
[5] Social Implications of Surrogacy, Yogendra Singh,
[6] Geeta
Padmanabh, “Hope in the Test Tube”, The Hindu, Jan.19, 2006
[7] Sandhya Srinivasan, "Surrogacy Comes Out of the Closet",
Sunday Times of India, July 6, 1997
[8] Indian Council of Medical Research, Ethical Guidelines for Biomedical
Research on Human Participants, New Delhi (2006)
[9] John Connell, Medical Tourism, CAB International, U.K., (2011), P.142;
Wendy Chavkin and JaneMaree Maher, The Global Politics of Motherhood:
Transformation and Fragmentation, Routledge, New York (2010), p. 137.
[11] Successful Surrogacy and Intended Parenting" (web page), available
at <http://www.surrogacymumbai.wordpress.com> Visited on 10.3.2012.
[12] John Dwight Ingram, "Surrogate Gestator: A New and Honourable
Profession", 76 Marq. L. Rev. 675 (1993), at p. 677
[13] INTENDED PARENTS AND THE LEGAL CONCERNS ResearchGate, https://www.researchgate.net/publication/340755418_INTENDED_PARENTS_AND_THE_LEGAL_CONCERNS (last visited Oct 7, 2022)
[14] Donald Evans and Neil Pickering, Crating the Child: The Ethics Law; and
Practice of Assisted Procreation, Kluwer Law International Publication, U.S.A
(1996), p. 162
[15]Canada,Hungary,Hong Kong, United
Kingdom, Greece, Denmark, Netherlands, Belgium,
Philippines, etc. and some of the states in USA like New York, Washington, and
North Dakota
[16] South Africa, India, Georgia (Country), Russia, Ukraine, Armenia, Iran,
Bahrain, New Zealand, Lebanon, Saudi Arabia, etc. and some of the states in USA
like Maryland, Ohio, Oklahoma, Illinois, Utah, Arkansas, Florida, New
Hampshire, Nevada, Texas, and Virginia
[17] For example, the countries like, Austria, Germany, Sweden, Norway,
Switzerland, Italy, Iceland, Japan, Spain, Vietnam and some of the states in USA
like West Virginia, New Jersey, Arizona, Kentucky, Michigan, Nebraska,
Indiana, District of Columbia, and Tennessee
[18] Maneka Gandhi v. Union of India, AIR 1978 SC 597, (1978) 1 SCC 248
[19] Article 21 of the Constitution of India – Right to Life and Personal
Liberty Legalserviceindia.com, https://www.legalserviceindia.com/legal/article-1235-article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty.html (last
visited Oct 7, 2022)
[20] Govind v. State of Madhya Pradesh & Anr,
1961 MP 320
[21] R Rajagopal and Ors. v. State of Tamil Nadu,
1994 SCC (6) 632
[22] B.K Parthasarthi v. Government of Andhra Pradesh
& Ors, AIR 2000 AP 156, 1963 AIR 1295
[23] Is surrogacy legal in India - iPleaders iPleaders, https://blog.ipleaders.in/is-surrogacy-legal-in-india/#:~:text=Commercial%20surrogacy%20is%20prohibited%20in,with%20the%20laws%20of%20India. (last visited Oct 8, 2022)
[24] Are 2022 New Surrogacy Laws Patient Friendly? Fertilitydost.com, https://www.fertilitydost.com/articles/article-details/are-2022-new-surrogacy-laws-patient-friendly (last visited Oct 8, 2022)
[25] Baby through surrogacy: Everything
you need to know about the Surrogacy laws | Lifestyle Health | English Manorama OnManorama, https://www.onmanorama.com/lifestyle/health/2022/06/25/baby-through-surrogacy-india-law.html (last visited Oct 8, 2022)
______________________________________________________________________________
*Student of B.A LL.B, 5th
Semester, Army Institute of Law, SAS Nagar (Mohali), Punjab
Comments
Post a Comment