FAMILY BUILDING THROUGH SURROGACY IN INDIA

Updated: Jun 19

BY: S INDHU,

Karnataka State Law University



INTRODUCTION

Indian Laws are prone to alterations. In recent, the laws are constantly into various changes and news statutes are also emerging. Emerging laws and purported changes in laws produces greater impact over the society. A recent change which has a huge impact on the Medical Tourism of India would be The Surrogacy (Regulation) Bill, 2020. Surrogacy in India is a long debated topic which seems to be an alternative source of child birth for many couples worldwide. India have once been a market for surrogate mothers and have benefited more families worldwide. Currently there has been shift in the scenario of Surrogacy in India where many strict regulations have emerged.


SURROGACY

“You have never really lived until you have done something for someone who can never repay you.”

The above quote implies the pure work of surrogate. Process of surrogacy can be said as that a women who is willingly lending her womb for the birth of the child for the intended parents, who cannot conceive child of their own even with unprotected intercourse for a long-time or due to some medical conditions.

There are two types of surrogacy that have been recognised as Traditional Surrogacy and gestational surrogacy. In traditional surrogacy, surrogate is genetically related to the child as she provides the egg, the sperm is generally provided by the intended father or anonymous donor. In the case of gestational surrogacy, the surrogate is no way related to the child, it is related to the woman who provided the egg and the father of the intended child who donates the sperm or sperm donor1.

We are interested in another set of classification i.e. Commercial Surrogacy and Altruistic Surrogacy. Commercial surrogacy where a women is hired to be a surrogate for the intended parents and they pay the charges for the services of the women. Altruistic surrogacy on the other hand is done by women who does philanthropically without obtaining any sort of monetary benefits.

Throughout the world we can find that many countries recognises surrogacy in either of the two forms. France, Germany, Italy, Spain, Portugal and Bulgaria prohibits all forms of surrogacy. In countries like UK, Ireland, Denmark and Bulgaria only altruistic surrogacy is allowed. We can find commercial surrogacy in some states of USA and countries like Russia and Ukraine2.


COMMERCIAL SURROGACY: A COMPLICATION

The practice of surrogacy is good as it provides new lives to million families. Surrogacy stands unethical when it is commercialised. There are so many reasons to exclude commercial surrogacy. Commercial surrogacy are mostly availed by international couples and surrogates are mostly from developing countries. Asia market is a huge hub for commercial surrogacy. Medically the problem is that the surrogates, who are usually poor, are subjected to poor treatment, medical facilities and post medical care. The agencies which has these surrogates keep them in miserable conditions and using them to run baby factories rather than do it as a service. The surrogates women are asked to give birth several times in their lifetime, which deteriorates their health sometimes causing death. Agencies using the poverty and lack of education of the women intending to be surrogates are exploiting them both commercially and physically. The women are also paid very less despite the efforts of carrying the child.

When we see to the legal complications in surrogacy, there is no International Law governing surrogacy. Many countries prohibits all forms of surrogacy so to get citizenships for the babies become complicated and children are left out. An example to cite is that in Thailand surrogate mother is the legal mother not the intended parents, so if the intended parents decides not to have the child, the surrogate becomes legally responsible.


STATE OF SURROGACY IN INDIA

The surrogacy in India can be dated back to the year 2002 when it was legalised to promote medical tourisms. Since then international couples have been pouring money in India that have been effected in construction of various surrogacy hospitals and clinics. It has been a industry generating revenue of US$ 2.3 billion a year. The country was one of the top surrogacy centres for foreign couples.


CURRENT TREND AND SURROGACY BILL

Current scenario of surrogacy in India have been drastically altered with the introduction of The Surrogacy (Regulation) Bill, 2020 banning all forms of commercial surrogacy and also regulating altruistic surrogacy. The drastic change can be dated back to 228th Law Commissions report recommending to bring changes in prevailing surrogacy laws and to completely ban commercial surrogacy. In 2005, Indian Council of Medical Research issued guidelines to regulate surrogacy arrangements3.

An import case can be analysed proving complications of surrogacy and the need for the passing of the 2020 Bill

Baby Manji Yamada vs. Union of India4 [ AIR 2009 SC 84]

Baby Manji Yamada was a child born to an Indian Surrogate mother. The intending parents was a Japanese Couple. Before a month of the child's birth, the couple got separated. This has left the life of the baby in peril. The biological father of the child wanted to take back the child to Japan but due to the legal implications in Japan he was prohibited. The Supreme Court of India Intervene and permitted the baby to go to Japan with the baby's grandmother.

The above case had serious impact over the surrogacy arrangements and paved the way for the need of surrogacy regulations in India.


SURROGACY BILL 2019 AND ITS CRITICISMS

The first bill after the bill of 2016 with changes and modifications on surrogacy was passed in Lok Sabha on August 2019. The bill came in with lots of criticisms, was not passed in Rajya Sabha and was sent to the Parliamentary Select Committee for evaluation.


To highlight the few points of the bill

· Commercial surrogacy made illegal

· Altruistic surrogacy is allowed

· Surrogacy only for Indian Married Couples

· Women to be surrogates only once in their lifetime

· Surrogate should be a close relative of the intended parents and should have biological child of her own

· LGBT couples cannot avail surrogacy

The bill initially prohibits commercial surrogacy but allows altruistic surrogacy. Altruistic surrogacy involves no monetary compensation other than the medical expenses and insurance coverage during the pregnancy5.

The bill also highlights about the eligibility of the intending couples that they should be married for five years and also they should be able to prove their infertility. The intending couples should posses the certificate of essentiality provided by the approprtiate authority. The intending couples should be between the age group of 23-55 years and should not have any surviving children exception is given in having mentally or physically challenged children. If we see to the eligibility of the surrogate, it is also complicated in many ways stating that she should be a close relative of the intending couple, should posses a biological child and be surrogate only for once in her lifetime. The bills also prohibits traditional form of surrogacy.

The bill here reflects only the moral intention of the legislature no legal intentions. This can be seen in many aspects of the bill and the restrictions imposed. The restrictions imposed upon the surrogates has a huge impact over couples intending to opt for surrogacy. The surrogate to be a close relative is a severe restrictions put forth without any legal explanations. For the couples it is hard to find a close relative who would accept to carry a baby and also the number of surrogate is narrowed down for the couples.

Right of reproductive choice is governed under Article 21 of the Constitution, the Supreme court have highly emphasised upon this in its various cases. The right of reproductive choices include right to carry the baby, give birth and raise children. It also includes privacy, dignity and bodily integrity. The surrogacy bill 2019 violated this fundamental right in reproductive choices of women6.

The bill also discriminates that only married couples can seek the option of surrogacy completely ignoring LGBT couples. Even they have the right to raise children of their own. The bill also places a definition of "proven infertility" which has no clarity nor medical supervisory. Proven infertility is assigned only after five years of marriage and unprotected intercourse lacks any medical clarifications. Single women, widows and couples who has other reasons than infertility should not be neglected of having children of their own. Furthermore the Bill does not clarify about Indian Orgin Couples and their rights of having surrogacy arrangements in India.

The Surrogacy Bill, 2019 as an overview seems to completely put an end on surrogacy with all these restrictions.


CHANGE IN LAW: FAMILY BUILDING OF THE FUTURE

The Surrogacy Bill 2019 with loads of criticism has been modified by the Parliamentary Select Committee led by MP Bhupendra Yadav. With the proposed changes the bill was passed on February 2020 as The Surrogacy (Regulation) Bill, 2020. The changes in the bill will help the Indian couples freely opt for surrogacy with facing crucial restrictions.

Key Highlights of the Bill7

· It allows any willing women to be a surrogate

· The intended parents can be Indian couple, single women , widowed and divorced women

· The bill have deleted the definition of "proven infertility"

· Marriage for a period of five years has been deleted

· Compensation for the surrogate women beyond medical expenses and insurance

· Regulation of surrogacy by National Surrogacy Board at the centre and State Surrogacy Board

This changes in the new bill is a positive approach in the Indian scenario to opt for surrogacy by the Indian couples. The couples now can chose any willing women who consents to act as a surrogate which could help many couples who are suffering various ailments due to which they lack children

Surrogacy is a great option for having children. Currently many couples in our country are facing the problem of infertility and the lack of children in the family are destructing the elements of marriage. Options available for the couples would be to either adopt or to opt for surrogacy. Adoption though a good option it has lots of legal complications and mental fitness. With the new regulations, surrogacy can be availed which would give them their biological children. The new bills aims in providing for building the family of couples who suffers from the lack of children considered as major part of their life to ensure their generational presence in this world. Committing to surrogacy arrangements can now be adopted easily by the Indian couple along with single women who are willing to raise a child on their own without entering into any marital relationship, divorced and widowed women. The new bill of making surrogacy arrangements is a step forward in solving marital discrepancies in India due to lack of children.


CONCLUSION

Research done by World Health Organisation estimated that in 2010, 48.5 million couples worldwide were unable to have couple of their own8. Most of the people are in want of a children of their own and in India with increasing infertility rate the option of surrogacy is positive for the couples to have children of their own. The new surrogacy law is proven to bring a affirmative notion in the minds of the Indian couples and single women to have children and raise their families. It can be concluded that the option of surrogacy is more a positive notion rather than carrying negation for the people of India to have children and family prosperous.

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