The levels of fertility have decreased as globalization has progressed. This has given rise to “reproductive tourism.” Surrogacy has gained attention from the public among the various choices. In India, the use of surrogate mothers is widely accepted and costs only a third of what it does elsewhere in the world. The parties’ disparities are seen based on their socioeconomic status, level of education, race, and nationality, which has an impact on their ability to bargain. In addition to challenging traditional family values, the industry’s rapid expansion also makes established ideas like “motherhood” seem a little foggy. This blog aims to educate readers on the surrogacy laws in India and the sociolegal implications of the practice.
DEFINITION MEANING AND TYPES OF SURROGACIES
“An agreement wherein a woman agrees to be artificially inseminated with the semen of another woman’s husband,” according to Black’s Law Dictionary. The New Encyclopaedia Britannica defines- “Surrogate motherhood”, as a practice in which a woman bears a child for the couple to produce children in the usual way. The Surrogacy (Regulation) Bill, 2021 defines ‘surrogacy as a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after birth.’ Since infertility is becoming more common worldwide, assisted reproductive technologies have been created (ART). Surrogacy is an alternative when the infertile lady or couple is unable to conceive. A surrogate mother conceives and gives birth to a child on behalf of another couple or individual who is unable to conceive in a process known as surrogacy.
There are two main types of Surrogacies.
- The surrogate mother’s eggs are used in conventional surrogacy. The surrogate mother becomes both the genetic and gestational mother after receiving the intended father’s sperm forcibly placed into her.
- In gestational surrogacy, an embryo that has been fertilized through in vitro fertilization is implanted into the uterus of the surrogate mother, who will carry and deliver the baby.
Other types of surrogacies include –
- Commercial surrogacy is carried out for financial gain. In this type of surrogacy, the surrogate mother serves as the surrogate mother for the intended parents while also earning money.
- Altruistic Surrogacy is not carried out for financial gain. Only the surrogate mother’s medical costs are funded by the commission’s parents. Family and friends frequently use this kind of surrogacy.
LAWS RELATED TO SURROGACY IN INDIA
The legislative efforts to codify the laws and rules to protect the rights of both the intended parents and the surrogate mother have been slow and sluggish in comparison to the existence and popularity of surrogacy. The ICMR released the initial set of surrogacy regulations in India. The first set of surrogacy laws accepted by the government is the Indian Council of Medical Research Guidelines for ART Clinics, 2005. Despite not being developed with surrogacy in mind, it contains crucial guidelines that ART clinics should adhere to when doing any surrogacy treatments. The Law Commission decided to take Suo Moto action and address surrogacy in its 228th report after realising the necessity for legislation to set standards for clinics performing ART treatments and the need to codify the rights and obligations of the parties. The report made a number of recommendations, including a comprehensive simplification and regulation of the provisions aimed at openness, privacy, avoiding sex-selective surrogacy, prioritising the future and ensuring the validity of the surrogate kid, and providing financial support for the surrogate child and mother, under hypothesised circumstances of future contingencies. Another proposed bill is the 2020 Assisted Reproductive Technology Act. The Bill’s goal is to support and establish the country’s regulatory framework for assisted reproductive technology services. The requirement that all ART clinics register with India’s National Registry of Banks and Clinics in order to maintain a central database is one of the bill’s most important provisions, as are the legal ramifications and suggested penalties for any violations. The Surrogacy (Regulation) Bill, 2020 became law on 25th December after getting the president’s assent. It forbids commercial surrogacy but permits altruistic surrogacy.
SOCIO-LEGAL IMPACT OF SURROGACY
The concept of biological parentage has been altered somewhat by the rise of surrogacy. Since the child is not born to a husband and wife inside the framework of marriage, it also has an impact on mother-child connections. The child may also be born from an anonymous egg donor, which could have psychological repercussions for the child about their identification. In the case of surrogacy, parenthood is no longer restricted to the sole sacred union of matrimony within the family and is instead a subject of a commercial legal contract and medical procedure involving a third party. The stability and cohesiveness of the family as the most fundamental social institution may be threatened by all of these trends. The moral and ethical justifications for surrogacy are weak, and it also violates a person’s right to dignity and integrity because it includes the economic exploitation of a woman’s reproductive system for the benefit of a third party. The surrogate mother and surrogate child are both commoditized in this process as they become the subject of a contract and the object of commercial exchange. These factors make surrogacy stigmatised and frequently associated with prostitution.
Another crucial issue with surrogacy is that it has turned motherhood or pregnancy into an additional source of income, especially for low-income women. This is known as the “womb renting business,” and it involves the commercial hiring of women’s bodies under a contract similar to one for employment. In India’s current socioeconomic situation, this produces unsettling sociolegal and ethical trends. Surrogacy widens the wealth gap by forcing poor women to bear children for wealthy women who can afford the former but not the latter. With the proliferation of infertility clinics, surrogacy is transforming urban areas into hubs for reproductive tourism or sources of contracted pregnancy or reproductive labour.
According to reports, young, underage women who are approaching their twenties are increasingly turning to egg donation and surrogacy due to a lack of funding in urban areas. It should be emphasised that this is against the ICMR Guidelines, which state that a person must be twenty-one years old to be an egg donor or a surrogate mother in India. Another major worry is that the surrogacy industry’s explosive expansion would have a negative impact on adoption, which advances social welfare by giving current children in orphanages parents and homes. Because surrogacy is not strictly regulated, there is room for abuse of this technology to choose the kid’s sex or to have a child of the desired sex. This is leading to the concept of ‘designer babies’ where parents can choose the features of the child. Despite the fact that the Indian Supreme Court has ruled that altruistic surrogacy is legal, it poses complex sociolegal challenges. In order to make the practice of surrogacy socially acceptable, ethical, and legally regulated, it is not only urgently required to enact laws, but also to evaluate the social consequences of the use of technology.
In India, infertility is widely regarded as a societal disgrace. As a result of failing to fulfil the biological function of parenthood, it has a terrible impact on the life of the individual. The concept of surrogacy has made it possible for infertile couples to experience the joy of parenthood as well. Surrogacy, on the other hand, raises numerous moral, legal, and ethical concerns. It is a method that may exploit vulnerable women. There are significant threats to one’s physical and mental health. As a result, India direly needs a clear framework to regulate surrogacy.
Author(s) Name: Arsheya Chaudhry (Vivekananda Institute of Professional Studies, New Delhi)
Manali Singh, Surrogacy in India and its legal aspects, Pen Acclaims Vol 10, (2020). http://www.penacclaims.com/wp-content/uploads/2020/06/Manali-Singh.pdf (last visited 7th January 2023).
 The Surrogacy (Regulation) Act, 2021
National Library of Medicine, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3531011/#:~:text=Surrogacy%20is%20an%20arrangement%20where,carries%20and%20delivers%20the%20baby (last visited 5th January 2023).
 Law Commission of India. 228th Report on Need for legislation to regulate Assisted Reproductive Technology Clinics as well as rights and obligations of parties to a surrogacy, 2009.