top of page
Search
Writer's pictureKajal Wadhwana

LEGALITY OF SURROGACY & ITS TRANSFORMATION IN INDIA



Today, Indian surrogacy laws make it illegal for foreign intended parents to complete a surrogacy in India. This Article states the description about Surrogacy laws & its effects in India. In December 2018, after almost two years of debate, an Indian surrogacy law was passed that has made commercial surrogacy illegal. It only allows altruistic surrogacy for needy, and for infertile Indian couples.


What is Surrogacy?

The 'Surrogate" word in literal means - a woman acts as a substitute for another woman. It is a method of assisted reproduction or assisted reproductive technology (ART) where on behalf of another person or couple a woman or the surrogate offers to carry a baby through pregnancy and then return the baby to the intended parent(s) once it is born and also in return will get compensation as agreed.


Further there is bifurcation in its types -

  • In ‘gestational surrogacy’, the child is thereby genetically related to the woman who donated the egg and the intended father or sperm donor, but not the surrogate.

  • ‘Commercial surrogacy’ is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents.

History behind Surrogacy

In 2002, commercial surrogacy or informally 'Rent a Womb' practice was legalized in India. It was done to promote medical tourism in India and after this decision; India became "the hub of surrogacy". It was being charged the low cost in India that is in the U.S it cost approx $100,000 and also the absence of strict legislation. As per the CII report 2012, the size of India's surrogacy industry was $2 billion a year. And it was estimated that more than 3,000 fertility clinics were engaged in this across the country.

Later, the turning point came in the year 2008 when the Supreme Court was called upon to deal with a case revolving around surrogacy. In the case of - Baby Manji Yamda v. Union of India merely pertained to obtaining travel documents for a baby with Japanese parents conceived and born in India through commercial surrogacy. Though the issue of the legality of commercial surrogacy under Indian law was not raised, the Supreme Court made an observation that commercial surrogacy is legal in India.


Was the regulation made proper?

The unregulated business of surrogacy raised concerns like unethical practices, due to it the middlemen and commercial agencies profited most, exploitation of surrogate mothers, abandonment of children born out of surrogacy, rackets like organ trade, embryo import, etc. That is why legislation to regulate surrogacy in the country came in to force.

It highlighted that there is a need to enact a law to regulate commercial surrogacy. The LCI in the 208th report recommended prohibiting commercial surrogacy and its reasons were:

  • Use of surrogacy prevalent by the foreigners.

  • Lack of a proper legal framework.

  • Surrogate mother exploitation may have been coerced to become a surrogate due to poverty and lack of education.

Keeping in mind all this - in 2015, the notification of the government of India was given out which stated, - “prohibited surrogacy for foreign nationals.” In Lok Sabha, the first Surrogacy (Regulation) Bill was introduced in 2016 and lapsed due to some reasons.

Later, ‘The Surrogacy (Regulation) Bill 2019’ was introduced in Lok Sabha 15 July, 2019 and passed by Lok Sabha on 5 August, 2019. Further, it was handed over to the 23-member committee who then suggested the 15 major changes to the Surrogacy (Regulation) Bill, 2019. It also included deleting the definition of "infertility" as the inability to conceive after five years of unprotected intercourse on the ground that it was too long a period for a couple to wait for a child. When the bill was introduced in Rajya Sabha, its provisions were debated upon and the inadequacies were highlighted.


There were many questions which were raised, lets figure out a few of them;

Who will be eligible for Surrogacy?

Indian married couples for at least five years. They have to provide a certificate of essentiality and also a certificate of eligibility. Also, they have to undertake a written agreement stating that they will not abandon the child born out of surrogacy.


Who can be a surrogate mother?

A close relative of the intending couple, the woman must be married having a child of her own and she should be between the ages of 25-35 years and having no previous surrogacy.

The Bill also seeks to manage the functioning of surrogacy clinics. Further, surrogacy clinics in the country need to be registered. When it comes to surrogacy then no sex selection can be done.


Why was surrogacy banned in India?

  • When surrogacy was first introduced in India, it became a booming industry, as there were no regulations in place, and unsafe and unethical practices developed in response.

  • Surrogate mothers were subjected to unethical treatment, poor living conditions, and exploitation.

  • Due to the demand from international intended parents, Indian surrogacy agencies effectively ran "baby factories". Indian women were forced to live until they gave birth to the intended parent's babies with no assistance for the family and they had left behind while pregnant.

  • It is also said that the surrogates in India received a fraction of the expenses that intended parents paid the surrogacy agency about $4000 to $5000 for compensation.

  • Surrogates were exploited in commercial surrogacy.

  • For the financial gain, their poverty and lack of education drew them again and again into the surrogacy process. As a result, their health declined as they effectively became "baby-making machines" year after year.

  • Surrogate mothers don't even receive the kind of supportive services that need for themselves and their family during this emotional journey.

Let’s turn around to look at the international level scenario;

  • Altruistic surrogacy is allowed in Canada, Britain, Australia, and Denmark.

  • All forms of surrogacy are completely prohibited in France, Germany, Italy, Portugal, and Bulgaria.

  • Armenia, Georgia, Kazakhstan, Russia, Ukraine allow both altruistic and commercial surrogacy.

  • Some countries allow surrogacy like Kenya, Malaysia, and Nigeria but have no formal law to regulate the practice.

  • The laws related to surrogacy vary in the USA from state to state like surrogacy friendly states like Arkansas, California, New Hampshire, etc .allow both commercial and altruistic surrogacy. Commercial surrogacy is not allowed in New York and Michigan completely forbids surrogacy agreements.

Highlights of The Surrogacy (Regulation) Bill,2019

The law on surrogacy in India in the present form of the Bill of 2019 contains a few noteworthy facets. Here are a few significant points in a nut shell:

  • The bill ensures regulation of surrogacy in India, prohibiting commercial surrogacy. It allows altruistic surrogacy to Indian married couple who cannot bear children.

  • The bill says the surrogate mother and the couple that wants to have her child must be close relatives.

  • It provides for the formation of a National Surrogacy Board, State Surrogacy Boards and appointment of appropriate authorities for the regulation of the practice of surrogacy.

  • The surrogate mother and the intending couple need eligibility certificates from the appropriate authority.

  • The bill allows only Indian citizens to avail of surrogacy. Foreigners, non-resident Indians and persons of Indian origin are banned from seeking surrogate mothers in the country.

  • Homosexuals, single parents, and live-in couples are also not allowed to have children via surrogacy in India.

  • Couples that already have children will not be allowed to go for surrogacy, though they would be free to adopt children under a separate law.

  • Health Minister JP Nadda said different sections of society, political parties, the Supreme Court and the Law Commission have spoken against commercial surrogacy, and the bill addresses these concerns. The rules and regulations of the proposed law will define close relatives, Mr Nadda added.

  • NCP leader Supriya Sule said it was a good bill but not modern enough. Trinamool Congress leader Kakoli Ghosh Dastidar said same sex couples should also be allowed to have a child through surrogacy. BJD's Bhartruhari Mahtab said surrogacy industry had been thriving due to regulatory gap. He asked the government to define who close relatives can be.

It is a need of an hour for a holistic and well-rounded legislation regulating surrogacy which will stand the test of time and constitutionality. It is therefore imperative that the deliberations of the Committee are carried swiftly to iron out the creases and re-introduce the Bill in the next session of Parliament.

With this I sign off.

16 views0 comments

Recent Posts

See All

Comments


bottom of page