Surrogacy is a form of reproduction in which a woman consents to carry a child in her womb for an intended couple who is not able to conceive, thus, will be the child’s parents after birth. In the year 2002, Commercial surrogacy, or informally ‘rent a womb’ practice, was legalized in India to increase medical tourism in India due to which India became the hub of surrogacy because the cost of hiring a surrogate mother in India is very low and also strict legislation is absent as compared to other countries. In the USA it costs appx $ 100,000 to hire a surrogate mother which is very high. It was estimated that across the country approximately 3,000 fertility clinics were engaged in the practice of surrogacy. And it was held by the CIA report of 2012 that the Indian surrogacy industry had a size of $2 billion in a year. But with the increasing misuse of provision and exploitation of women, it has become an urgent need to check the menace caused by the same. Thus, Parliament has passed the Surrogacy (Regulation) Bill, 2021, in December.
THE SURROGACY (REGULATION) ACT, 2021
The act has been recently passed by the Parliament with some major amendments that were suggested in the draft earlier. Here is a light on the important provisions of the act:
- The act has created proposed for the creation of the National Assisted Reproductive Technology and Surrogacy Board at the national level, inclusive of functions such as advising the government on the issues related to surrogacy in the country, to look after the set up of the proper infrastructure for the clinics and hospitals providing facilities of surrogacy. Also, it has been provided with the function of supervision of the State level assisted reproductive technology and surrogacy boards.
- It allows only ethical altruistic surrogacy which means that the surrogate mother will not be paid to carry a child in her womb. Commercial surrogacy is prohibited.
A couple is allowed to go for surrogacy to become parents only when:
- At least 5 years have been passed of having been married.
- The couple has to prove the essentiality and incapability of fertility by showing a certificate of it.
- They have to also undertake that abandonment of the child born out of surrogacy will not be done by the intending parents.
- The eligibility criteria for the same requires a Certificate of Essentiality for couples and a certificate of eligibility for couples, issued by the authorities as stated under the act.
Conditions to be a surrogate mother are:
- The woman chosen for surrogacy must be a close relative of the parents who will take the child after the birth.
- It is essential that the Surrogate mother must be a married woman and should also have at least one child of her own.
- The age of the surrogate mother should be between the age of 25-35 years.
- She can go to become a surrogate mother only once and must possess a certificate of physical and mental fitness for surrogacy.
- There should have insurance coverage for the Surrogate mother for some time to cover a period of pregnancy as well as for the period after that.
- The act also gives directions for the regulation of the functioning of surrogacy clinics. All surrogacy clinics in the country should be registered.
- It also specifies that no sex selection can be done when it becomes to surrogacy.
Parentage and abortion of surrogate child:
- A child born out through surrogacy will be the biological child of the parents who has hired the womb.
- An abortion of the surrogate child is only possible after the written consent of the surrogate mother and also needs the authorization of the surrogacy board established at the national and state level.
- The surrogate mother will have an option to say no to involvement in the practice of surrogacy only before the implantation of the embryo in her womb.
SOME LANDMARK JUDGMENTS
In this case, a Japanese couple, Dr. Ikufumi Yamada, and his wife visited India to have a baby through the practice of surrogacy. Then they hired an Indian woman as a surrogate mother for their child who lived in Gujarat where this practice was pioneered. Due to some matrimonial disputes, the couple had divorced. But the father wanted to have custody of the child but according to Indian law, the single father cannot adopt a girl child. So, in this case, Justice Arijit Pasayat and Justice Mukundakan Sharma of the supreme court give the custodial rights of the girl child to her grandmother. So, in this case, it was analyzed that there is a need to have regulated surrogacy laws in the country.
In this case, a German couple hired a surrogate mother named Marthaben Immanuel Khrishti who gave birth to two twins. This German couple worked in the UK and now their two twins need an Indian passport to travel. Since the two twins did not have citizenship because its process was litigating in the courts so, the passport authorities did not grant passports to the twins. And in German, there was no law for surrogacy. Supreme did not grant to give passport but granted an exit permit to the children and German authority allow them to adopt the children and fight for their rights.
In this case, the court held that Article 21 of the constitution guaranteed the personal liberty under which the right of women to make a reproductive choice also lies, and along with that it also includes various other rights like Women has the right to carry a pregnancy to its full term, to give birth, and these rights form part of women’s right to privacy, dignity and bodily integrity.
It was held by the court that there is a violation of the right to privacy in obtaining and showing the certificate of infertility and it is also against the moral and ethical point of view of society to make it compulsory to have a certificate of infertility from the district medical board and this fundamental right has to be protected.
Some shortcomings remained unaddressed in the act such as:
- The complete ban on commercialization can lead to the secret illegal hiring of surrogate mothers, which is not a complete solution to the problem.
- Moreover, the acting term ‘close relative’ is quite vague and ambiguous under the act.
- The act is limiting only to the inability to conceive as the reason to opt for surrogacy, other issues such as the inability to carry on pregnancy for complete nine months, etc are not dead by the act.
- The act is limiting only to heterosexual couples, thus closing the scope for single parents, old couples, LGBT community to opt for the technology.
- Moreover, the beginning of exploitation began from the IFVs centers, which needs to be dealt with appropriately to solve the nuisance so created.
- Another aspect is that there are only 30% to 40% chances of success of such techniques, whereas the institutions involved in this claimed 100% success of the mechanism, thus, attracting and cheating many intending couples and poor women.
- The unregulated business of surrogacy led to various issues and challenges in the country. surrogacy gives rise to various unethical practices like organ trade and embryo import, exploitation of surrogate mothers by not paying them according to the contract, abandonment of children born out of surrogacy, middleman, and commercial agencies profiting most due to rising trends in surrogacy.
- Moreover, altruistic surrogacy is not even fulfilling the need for money in the case of a poor lady, which is, in turn, an injustice to her.
The act has well-tried to deal with the issues in a positive direction, but some on-ground realities remained undealt by the act, which needs to be sorted out by including the stringent provisions for the fair working of IVF centres, have to take care of the postpartum care of the mother and as the altruistic surrogacy proved a failed idea in the European countries, so, the scope should be extended in a way to allow regulated commercial surrogacy so that both economic help as well the love of a child to the respective genuine deprived can be ensured.
Author(s) Name: Sakshi (Institute of Law, Kurukshetra University)