SURROGACY IN INDIA

“Children are the purest form of god,” as the saying goes. Their innocence and smile are very precious, something to die for. One of the greatest treasures in the world is giving birth. It not only brings joy and happiness but also helps people to deal with various responsibilities.

Women have the ability on earth to develop a new life but due to some health issues some women are not able to become mothers. There is nothing more magical than experiencing motherhood. Mothers are no human beings; they are more like visible gods. They fight for their kids and act as a protective shield for them in such a competitive world. They carry a baby for 9 months in their womb providing all sorts of warmth and affection to the offspring. Nobody on this planet can care for a child as his/her mother does.

The world has reached a stage where every sector is developing at a fast pace. Nobody could have ever imagined the position where we stand today. With the advancement of medical science different options are available to people who are unable to give birth and start a family. These options include In-Vitro Fertilization (IVF), Artificial Reproductive Technology (ART), Intrauterine Injections (IUI) etc.

They often instill hope amongst families who want to have a baby of their own. As the global frequency of infertility rises, assisted reproductive techniques[1] are becoming more effective. In such a scenario people usually tend to prefer surrogacy, which acts as a solution to the concerns of infertile couples.

Surrogacy has been a preferred way to start a family for a long time now. But some people view surrogacy as an interference to the natural ways of reproduction, they consider it as a moral wrong.[2]

The term surrogate originally means substitute[3]. According to Warnock Report[4] surrogacy is a type of infertility treatment in which a woman agrees to have a child for someone else with the goal of handing the baby over after delivery.

The surrogate is the woman who bears the child, while the commissioning parents are the people to whom the child is handed over after birth. The intended parents are the ones who are accountable for all medical costs. A large number of infertile couples travel to India, where surrogacy is permitted and it is way easier to find a surrogate as compared to other countries.

On the basis of the nature of surrogacy agreement there are two types.

  1. Altruistic Surrogacy – In this type of surrogacy, except from the essential healthcare expenditure, the surrogate receives no financial compensation.

  2. Commercial Surrogacy – Here the surrogate mother is paid to carry the baby in her womb, often beyond the cost of medical expenses.

On the basis of fertilization-

  1. Traditional surrogacy – In this type of surrogacy the surrogate is the biological mother of the child.

  2. Gestational surrogacy – The surrogate has no biological ties with the baby instead the embryo is implanted. She just carries the baby for 9 months in her womb.

Embryos are often developed at fertility clinics with the help of IVF. In some cases, egg donor is essential and the intended parent’s genes are used.

1-2 embryos are planted into a surrogate at the clinic who will carry the baby.

ART (Assisted Reproductive Technologies) as the name suggests it is a technique that facilitates reproduction. Fertility procedures that work with both a woman's egg and a man's sperm are included. It operates by extracting a woman's eggs from her body. Embryos are created by mixing the eggs with sperm. Nowadays surrogacy is turning more into a business agreement.


Legislative Background

The Surrogacy (Regulation) Bill, 2020 aims to protect the rights of a surrogate as well as the child born out of surrogacy. Commercial surrogacy is prohibited by the bill, however altruistic surrogacy is permitted.

Surrogacy is only allowed when the intending couple has proof of infertility (either for one or both). The couple must have an eligibility certificate, which is given based on the following criteria:

1. A pair should have been married for a minimum of 5 years.

2. The age limit for the wife is 23 to 50, while for the husband is 26 to 55.

3. They should not already have a biological or adoptive kid (this does not cover a child who is mentally or physically challenged).

4. Couple must be Indian nationals, NRI’s or Indians living abroad.[5]

In order to become a surrogate, a woman should be already married and also have a baby of her own. Her age should be between 25 to 35 years and she should be mentally and physically fit.

A woman can only perform surrogacy once in her lifetime. Surrogacy clinics must be certified with the relevant authorities before they may execute surrogacy procedures. They usually have 60 days to apply for registration from the date of appointment. The intending couple has the legal custody of the child born through surrogacy. Abortion is only possible with the permission of the surrogate and the approval of the appropriate authority. Before the embryo is implanted, a woman can opt out of surrogacy.

Promoting surrogacy for money, torturing the surrogate, disowning the child born out of surrogacy, and the purchasing and sale of embryos are all prohibited under the bill. Such offences are punishable by up to ten years in prison and a fine of up to ten lakhs.


Legalization of Surrogacy

Surrogacy has an evident legal standing in India. Surrogacy via gestation (through IVF) is legalized.

When it comes to the legal stance, the standing varies from country to country. India is one of the countries that permit commercial surrogacy. Though commercial surrogacy is allowed, it is not governed by any specific law. Surrogacy is often regulated by the guidelines of ICMR or the Supreme Court or the High court. Surrogacy has led to the commodification of babies, raising tough challenges. It is well-known for interfering with natural processes. Women particularly in underdeveloped countries are eventually mistreated.


Maternity Leaves for Surrogates

A teacher went to Himachal Pradesh High Court after her application for maternity leaves was denied.

She was a teacher working on the basis of a contract in Kullu. She became a surrogate mother on 9 September 2020.The HC stated that distinguishing between a surrogate mother and a natural mother would be disrespectful to women. The court stated that the woman is entitled to maternity leave on the same terms as a regular woman employee, and that there can be no discrimination.

A surrogate mother will be eligible to paid maternity leave if she meets the standard eligibility conditions.

The Origins of Surrogacy

Commercial surrogacy, often known as "Rent a Womb," became allowed in India in 2002.

It was done to encourage medical tourism in India, and as a result of this move, India became known as "the surrogacy hub." The major reason is the inexpensive cost in India, whereas in the United States it costs over $100,000, as well as the lack of tight laws.

Surrogacy's uncontrolled industry prompted problems such as unethical activities, which benefited intermediaries and commercial agencies the most, exploitation of surrogate mothers, abandonment of children born through surrogacy, and rackets such as organ sale, embryo import, and so on.


The Pros of Being a Surrogate Mother

1. Nothing compares to bearing a child for someone who is unable to do so themselves, making surrogacy a rewarding experience.

The majority of surrogates feel fulfilled and accomplished when they reflect on their experience.

2. Although surrogate moms are a part of a powerful support network, the path to becoming one can be difficult. Candidates for surrogacy must consent to background investigations, medical examinations, and psychological testing.

3. Most women who want to be surrogate mothers genuinely enjoy being pregnant, surrogates can experience being pregnant once again.

4. Gestational carriers who agree to be used as surrogates are paid well in exchange for their dedication, time, and danger. Once a match has been made, legally binding contracts are put in place to safeguard both the intended parents and the surrogates.

The Cons of Being a Surrogate Mother

1. A range of medical tests and screenings are conducted on prospective surrogates to make sure they are healthy enough to carry a child to term.

Surrogacy is a physically and emotionally taxing process.

2. The procedure of becoming a surrogate mother is extensive and demands dedication. Surrogacy is a drawn-out process. There are several monitoring appointments between submitting the online application and giving birth. It takes a few months to complete the medical procedure and the legal contract.

3. Due to misinformation, misunderstandings, and social stigma surrounding surrogacy, some of your loved ones may not offer you the support you were looking for.

Suggestions

1. All the surrogacy clinics should be regularly monitored.

Lack of legislation can make women vulnerable to trafficking and other forms of abuse.

2. The government should try to safeguard the rights of the surrogate mother and the baby born out of the process. Also it is very important to maintain the confidentiality of the surrogate.

3. Health insurance should be made compulsory for the surrogate and the baby.

4. Initiatives must be taken to prevent the commercialization of surrogacy.

5. Awareness must be generated among the people about surrogacy.

6. Counseling should be provided to both the surrogate and the intending couple before signing the contract.

Conclusion

It often seems odd to witness people entering into contracts when a large number of children are orphaned. Adoption process with reference to India is a bit tough and a long procedure.

That is why people turn to options like IVF or surrogacy to start their family. There is a great need to change and simplify the adoption process for everyone. One should undergo surrogacy keeping the altruistic nature in mind. Strict laws should be enforced in the wake of surrogacy.

For infertile couples including the same sex couples who want to start their family surrogacy acts a boon[6]. They are able to fulfill their desire by the means of this process. The life of a same sex couple in a country like India is very tough. Surrogacy often fulfills the dreams of people who have been waiting for long to have kids.

Surrogate motherhood is still a debatable and a complex issue but people should try to go for selfless one without thinking of the profit. There is nothing as pure as giving birth to a baby. It is often shameful to see people charging money in order to become a surrogate.

This highlights the cruel intention of the people behind the cover of surrogacy. One should always strive to do the right things and limit access to illegal activities. The concept of surrogacy as a whole involves no malice intent; it aims to color the life of infertile couples. The time has gone when a social stigma was attached to the practice of surrogacy, now people are more open about it.

New clinical technologies have found a way to deal with barrenness, which is seen as a social disgrace in society. The exploitation of women during surrogacy is a serious issue which the law should deal with keeping it at its first priority. It is high time for policy makers to enact laws for efficient functioning of the process and impose strict penalties against the offenders. It is true that nothing shines without good intentions. The practice of surrogacy has both pros and cons; therefore, all the couple should aim to perform surrogacy in a good faith, welcoming happiness in their lives.


-- [1] P. Saxena,Surrogacy: Ethical and Legal Issues, Indian Journal of Community Medicine, Vol,37(4), 211-213 (2012) [2] Kaumudhi Challa, “Contentious Issues in Surrogacy: Legal and Ethical Perspectives in India” Vol.1, Christ University Law Journal (2012) [3] Malini Karkal, “Surrogacy from a feminist perspective” Indian Journal of Medical Sciences, (1997) [4] Warnock DM. London: Command of Her Majesty, Report of the committee of inquiry into human fertilization and embryology; p. 42. (1984) [5] Clauses 4.54 and 4.55 at page 31 of the Report of the Select Committee on the Surrogacy (Regulation) Bill, 2019 presented to the Rajya Sabha on 5 February 2020. [6] Kusum Jain, ’Surrogate Motherhood: Some Legal and Moral Problems in BioEthics’, Vol 25 Issue 4, Journal of Indian Law Institute, 546 to 558 (1983)



This article is written by Kavya Jain of NMIMS, Kirit P. Mehta School of Law.

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