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COMMERCIAL SURROGACY IN INDIA

INTRODUCTION

Surrogacy is a form of third-party reproduction method in which a woman agrees to a pregnancy for the affected parent(s) who is medically incapable of conceiving. Surrogacy, as a comprehensive term, may be a statutory settlement between a woman, or surrogate mother, and expectant parents willing to have a child. Today, such agreement is common, and admissible in society. The “Surrogacy Regulation Bill” was instituted on the 15thof July 2019 by the Minister of Health and Family Welfare, Dr. Harsh Vardhan, in the Lok Sabha. Surrogacy, as defined in the bill is a practice in which a female gives birth to a child for a specific couple and later delivers the baby after birth to the intending parent[1]. Even though it is difficult to come up with a single commercial definition of surrogacy, the term usually means any regulation relating to surrogacy where the surrogate mother is remunerated for her services beyond the reimbursement of medical expenses. Altruistic surrogacy is an alternative to the commercial type of surrogacy, where a woman volunteers to carry out pregnancy for the intended parents without receiving financial compensation in exchange.

EVOLUTION OF SURROGACY LAWS IN INDIA

Commercial surrogacy was legalized in India in the year 2002, and the phenomenal growth of surrogacy in India has resulted in flawless growth in several commercial enterprises claiming specialization in the Surrogate Maternity Act and accompanying foreign tourists looking for an Indian mother who rents her womb for blessing.[2] The Indian Council of Medical Research (ICMR) in the year of 2015, published guidelines for the regulation of surrogate maternity structure.[3] It also stipulated that the surrogate woman would be entitled to financial indemnity, the value of which would be determined by the couple and the surrogate woman. The guidelines further stated that the surrogate mother cannot give her egg for surrogacy and have to waive all guardianship rights associated with the child born out of the surrogate woman. The Supreme Court of India for the first time addressed the matter of surrogacy in the context of Baby Manji Yamada v. Union of India[4], the young Manji Yamada was born to an Indian surrogate mother to a Japanese couple who before one month of the birth of the child separated and the child’s future was left in the dark. Takafumi Yamada, the biological father of the child wanted to bring the child to Japan, but the legal framework did not provide for such a provision in such a situation nor did the Government of Japan allow him to return the child home either. The Supreme Court of India following the Manji case stated that surrogacy has been authorized in India, which has enhanced global trust in the utilization of surrogacy in India.

More recently, the High Court of Gujarat has determined that the birth certificate of an infant born to a surrogate mother will be named after the surrogate mother against the natural mother, and the infant would be provided with an Indian passport attesting to his or her Indian citizenship. and the surrogate mother had to turn the child over to the German couple in adoption, who had requested the services of the Indian substitute mother[5]. The prohibition has so far been implemented through a written notification dated 28th September 2015, from the Indian Council of Medical Research(ICMR) to every clinic in India which instructs them not to help foreign couples to have a child through an Indian surrogate mother[6], however, the domestic market was left untouched, until last year. India has completely prohibited surrogacy after a decade of ethics debate to allow people to pay women to carry their children.

WHY WAS COMMERCIAL SURROGACY BANNED IN INDIA?

Whereas surrogacy is a blessing for parents who cannot have a child or for a single mother to have a family with a child, it may also lead to manipulation of the child and the woman who conceives it. Some of the reasons why commercial surrogacy is prohibited in India are below-  

  • The woman who has the child or the surrogate mother is maltreated in society, which means that living conditions are extremely bad and they often do not get recompense even after the proposed parents get the child. Her physique is simply accustomed to having the baby after that she is left behind without any compensation, resulting in physical, mental, and economic difficulties.
  • Furthermore, the commodification of surrogacy has led to increased trafficking of children. The traffickers of children could easily have a baby, by often paying a small amount or not paying at all.
  • In addition, surrogacy has resulted in children being commodified, resulting in moral issues. It is prominent to break the bond between the child and their mothers and interfere with naturally occurring processes.
  • Aside from the lawful challenges, there are psychological implications associated with surrogacy. Statutory and psychological problems associated with surrogacy have arisen in India several times. Women have been subjected to mental harassment or intimidation in some cases of surrogate exploitation.

STATUTORY PROVISIONS CONCERNING SURROGATE MATERNITY IN INDIA

Some of the current legal settlements in India include:

The Indian Council of Medical Research Guidelines, (2005)

These suggestions were developed to govern the operation of assisted human reproduction clinics that offer surrogacy treatment in India.[7]

The Surrogacy Regulation Bill, (2019)

Under this legislation, commercial surrogacy is against the law but altruistic surrogacy is allowed. Apart from medical expenses and assurance coverage all over maternity, there is no financial compensation for the surrogate in selfless surrogacy.[8]

The Assisted Reproductive Technology Act, (2021)

Surrogacy in India is granted to wedded couples who are citizens of India. However, in the case of Assisted Reproductive Technology[9], it is accessible to all married couples, resident spouses, unmarried women, and foreign nationals.

The Surrogacy Regulation Act, (2021)

The Surrogacy RegulationAct came into effect on the 25th of December 2021. One of the principal attributes of the Act is that it prohibits commercial surrogacy[10] in any form by any surrogate maternity, gynecologist, embryologist, or other physician.

CONCLUSION

The growth of in vitro fertilization clinics in India, which have led to the development of reproductive tourism. Those who support commercial surrogacy, see it as a commodity that can be exchanged. However, in reality, the situation is somewhat different. At present, commercial surrogacy is surrounded by numerous legal and moral issues. There have been discussions concerning the ethics of commercial surrogacy. Few critics believe that this practice benefits vulnerable females exploits the reproductive method and democratizes human being life. Nevertheless, proponents of surrogacy contend that it is unjust for a woman to bear a baby for someone else and receive nothing back. Those in favor of commercial surrogacy also believe that the practice should be openly permitted so that it can be regulated and the rights of all can be safeguarded. The needs of rights of women should be at the center of discussions in this modern era regarding surrogacy. Some activists believe that surrogacy has full commercial potential. They see women’s capacity to carry children as a means of empowering them in a society in which they are exploited. When men get paid to be sperm donors, how about women? To conclude, one of the most important legal challenges regarding surrogacy in India is the lack of legislation that controls or regulates matters related to surrogacy. Laws should be formulated in such a way that is consistent with the women’s movement. Instead of prohibiting it together, efficient regulation consideration should be given to prevent the exploitation and emergence of illegal markets and trafficking in persons. Now is the time to get out of this slumber and establish a new way built on strict rules and execution schemes.

Author(s) Name: Mushkan Mangla (Indian Institute of Legal Studies)

References:

[2] ‘Dev, ‘Surrogacy in India’ (Legal Service India)  <https://www.legalserviceindia.com/legal/article-782-surrogacy-in-india.html>   accessed 6 September 2022

[3] Ibid.

[4]Baby Manji Yamada v Union of India (2008) AIR SC 84

[5]Jan Balaz v Anand Municipality (2009) AIR 21

[6]‘Dev, ‘Surrogacy in India’ (Legal Service India)  <https://www.legalserviceindia.com/legal/article-782-surrogacy-in-india.html>  accesssed 7 September 2022

[7] Ananya Bose, ‘Is Surrogacy Legal in India’( IPleaders, 21 July 2022) <https://blog.ipleaders.in/is-surrogacy-legal-in-india/#:~:text=Commercial%20surrogacy%20is%20prohibited%20in,with%20the%20laws%20of%20India>   accessed 8 September 2022

[8] Ibid.

[9] Assisted Reproductive Technology (Regulation) Act 2021, s 2(1)(a)

[10] Surrogacy (Regulation) Act, Section 2021, s 2(1)(g)