contemporary surrogacy laws in India: A critical analysis

DESCRIPTION OF THEME TO BE INVESTIGATED:

Nature has endowed every woman with the beautiful ability to generate life, and every woman treasures the experience of motherhood. However, due to specific physiological abnormalities, some mothers cannot give birth to their children. Alternative alternatives such as Artificial Reproductive Technology (ART) and In-Vitro Fertilization (IVF) are being sought by them. In vitro fertilization (IVF), intrauterine injections (IUI), and other fertility treatments have given hope to many infertile couples. Who wants for a child of their own medical science and technology have progressed to the point, particularly in assisted reproductive technologies, which has seen the introduction of treatments such as donor conception?  Insemination, embryo transfer procedures, and other reproductive technologies transform the reproductive environment.

A surrogate mother is a woman who agrees to have an embryo generated from the sperm of a man who is not her husband, and the oocyte for another woman implanted in her to carry the pregnancy to term and hand over the child to the person or persons for whom she is acting as surrogate; and a surrogate mother is a woman who agrees to have an embryo generated from the sperm of a man who is not her husband, and the oocyte for another woman (s).

Surrogacy has converted a natural biological function of a woman’s body into a business transaction. Surrogacy’s commercialization has sparked suspicions of a criminal market, baby selling and breeding farms, underprivileged women becoming baby producers, and selective breeding for a fee. Surrogacy turns a pregnancy into a service and a child into a commodity. As with any other business transaction, the ‘consumer’ establishes his or her terms before purchasing the items.

Surrogacy has converted a natural biological function of a woman’s body into a business transaction. Surrogacy’s commercialization has sparked suspicions of a criminal market, baby selling and breeding farms, underprivileged women becoming baby producers, and selective breeding for a fee. Surrogacy turns a pregnancy into a service and a child into a commodity. As with any other business transaction, the ‘consumer’ establishes his or her terms before purchasing the items. India is slowly but steadily gaining favour as a surrogacy destination for many wealthy foreigners. India’s inexpensive medical costs, superior reproductive technology, and poor socioeconomic conditions, along with a lack of regulating legislation, have made it a tempting alternative in this regard. In India, the women who perform these duties are mainly from the lower-to-lower middle classes, married, and frequently need money. As a result of competition, childless couples may usually negotiate a better price due to their financial need. The compensation given to a surrogate mother in India may appear minor from a rational standpoint; yet, it may serve as the family’s economic lifeblood, and will be spent on the family’s needs (a house, children’s education, medical treatment). These are the fundamental needs. These basic requirements may appear insignificant to affluent westerners, but they are essential. Even though a rising number of childless couples from abroad are flocking to India, legal experts have expressed reservations. Many people believe that there will be difficulties when the child is born, and that surrogacy should be carefully studied. Given that there are currently a number of clinics that provide similar services – gauged It is simple to choose a product based on the number of advertisements in local media and on the Internet. clinic. However, the true issue emerges once the child is born. In India, , Due to the lack of rules on the subject, immigrants are unable to obtain legal aid to take their children out of the country. The trade is thought to be worth over $500 million, and the number of surrogacy cases is steadily increasing. Typically, women from rural communities are chosen for pregnancy outsourcing.[1] Many couples from India and outside travel to areas like Anand, Surat, Jamnagar, Bhopal, and Indore to realise their yearning for a child. Several American, Russian, and British women have signed up for the surgery at the Akanksha Clinic in Anand and the Bhopal Test Tube Baby Centre.

Statement of problem

Lacunae in The Surrogacy (Regulation) Bill, 2020

  1. focuses only on married couples

The Bill restricts surrogacy to married couples and, as a result, excludes members of the LGBTQ community, live-in couples, and single, divorced, or bereaved parents, thus criminalising their right to reproductive choice. The right to equality is guaranteed under Article 14 of the Constitution. The bill limits and conditions surrogacy to married Indian couples exclusively, and disqualifies ot

hers based on nationality, sexual orientation, marital status, and/or age. This fails the Article’s equality requirement as well as the reasonable categorization test

  1. infringement of the right to life

While the Bill’s positives are few, its drawbacks are numerous. The right to reproductive autonomy, which includes the freedom to conception and parenthood, is enshrined in Article 21 of the Constitution. Interfering with basic rights is not the state’s domain. It is up to the individual to choose the mode of parenthood, i.e., whether to have a kid born naturally or through surrogacy.

  1. Lack of awareness and Information Access:

The awareness of a right is the first and most important need for asserting it., general legal knowledge is low, This illustrates the depressing state of legal rights awareness in India, particularly among vulnerable groups such as women. Furthermore, because traditional Indian society requires women to leave their parents’ home to live with their spouse, daughters have little or no access to knowledge about their inheritance and privilege

relevance of the theme:

Surrogacy can be divided into three categories:

  1. Surrogacy determined by genetics
  2. total surrogacy
  3. gestational surrogacy

Surrogacy is traditionally accomplished by artificial insemination, in which the surrogate uses her own egg and another man’s sperm. In vitro fertilisation (IVF) is used for gestational surrogacy, in which fertilised eggs from another woman are put into the surrogate’s uterus. deciding which One of the most crucial and early considerations is the path to pursue. a surrogate mother and the intended father parents will have to make some decisions. A child’s commerce is difficult to envision since a child is a sign of love, not of money, and having a child is a perspective away from the notion of marketing activities. Surrogacy, on the other hand, has become a lucrative business in countries like India. Surrogacy’s commercialization has now become a political issue in Indian culture. The surrogacy market is quickly expanding and becoming quite substantial. In a nation like India, there are “N” numbers of potential parents who want to hire other women to birth their kid. Surrogacy has grown from a simple biotic function of a woman’s body into a business contract, and as a result, surrogate services are now widely advertised. Surrogates are being recruited, and the running agencies benefit handsomely. Surrogacy is currently referred to in India as a commercial contract for a woman’s regular biological function. The reason for the burgeoning surrogacy sector in India is because surrogate women are readily accessible in a nation like India, and the whole cost of the surrogacy process is far lower than in other countries Surrogacy instances have increased dramatically in the last few years.

On September 14, 2020, the Assisted Reproductive Technology (Regulation) Bill, 2020 was introduced in the Lok Sabha. The bill aims to regulate Assisted Reproductive Technology services throughout the country.[2]

Assisted Reproductive Technology or (ART): The bill defines ART as any process for obtaining a pregnancy by manipulating sperm or oocytes (immature egg cells) outside the human body and transferring the gamete or embryo into a woman’s reproductive system. Gamete (sperm or oocyte) donation, in-vitro fertilisation (fertilising an egg in a lab), and gestational surrogacy are examples of ART services (the child is not biologically related to surrogate mother).[3]

Regulation of ART clinics: ART clinics and banks must be registered with the National Registry of Banks and Clinics of India, according to the bill. The Bill establishes the National Registry, which will serve as a single database containing information on all ART clinics and banks. To make the registration procedure easier, state governments will appoint registration authorities. Clinics and banks will be allowed to register if they meet specific criteria (specialised workforce, physical infrastructure, and diagnostic facilities). The registration will be valid for five years, with the option to renew for another five. If an entity violates the Bill’s terms, its registration may be revoked or suspended.

Gamete donation and supply: its conditions: Only a registered ART bank can screen gamete donors, collect and store semen, and provide oocyte donors. Males between the ages of 21 and 55 can donate semen, while females between 23 and 35 can donate oocytes. An oocyte donor should be a happily married lady with at least one living child (minimum three years of age). A woman can only contribute one oocyte once throughout her life, and she can only have seven oocytes extracted from her. A single donor’s gamete cannot be sent to more than one commissioning couple by a bank (couple seeking services).

On July 15, 2019, the Surrogacy (Regulation) Bill, 2019 was introduced in the Lok Sabha. 

Regulation of surrogacy: Commercial surrogacy is prohibited under the bill; however altruistic surrogacy is permitted. In an altruistic surrogacy, the surrogate mother receives no monetary compensation other than medical expenses and insurance coverage during the pregnancy. Commercial surrogacy refers to surrogacy or similar operations conducted for a financial benefit or reward (in cash or kind) above minimum medical expenses and insurance coverage.

Why is surrogacy permitted: Surrogacy is legal for the following reasons: Surrogacy is legal if it is used for the following reasons: I intended couples with proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not to produce children for sale, prostitution, or other forms of exploitation; and (v) any condition or disease specified by regulations.

The intended couple must have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ from the competent authority.

Essential conditions for prospective couple: A certificate of essentiality will be issued if the following conditions are met: I a certificate of proven infertility from a District Medical Board for one or both members of the intending couple; (ii) a Magistrate’s court order of parentage and custody of the surrogate child; and (iii) insurance coverage for the surrogate for a period of 16 months covering postpartum delivery complications for the surrogate. The certificate of eligibility is given to the intending couple if they meet the following criteria: I they are Indian citizens and have been married for at least five years; (ii) they are between the ages of 23 and 55 (wife) and 26 to 55 (husband); (iii) they do not have any surviving child (biological, adopted, or surrogate); and (iv) they do not have a child who is mentally or physically challenged or suffers from a life-threatening disorder

Conditions to be met for becoming a surrogate mother: The surrogate mother must be: I a close relative of the intending couple; (ii) a married woman with a child of her own; (iii) 25 to 35 years old; (iv) a surrogate only once in her lifetime; and (v) have a certificate of medical and psychological suitability for surrogacy; and (iv) be a surrogate just once in her life. Surrogate mothers are also unable to donate their own gametes for surrogacy.

Authorities responsible: Within 90 days of the Bill becoming an Act, the federal and state governments must nominate one or more appropriate authorities. The competent authority’s responsibilities include: I issuing, suspending, or cancelling surrogacy clinic registration; (ii) enforcing surrogacy clinic standards; (iii) investigating and taking action against violations of the Bill’s provisions; and (iv) suggesting rule and regulation changes. Surrogacy clinics must be registered with the relevant authority before they can perform surrogacy treatments. Clinics have 60 days from the date of the appropriate authority’s appointment to apply for registration.

National and State Surrogacy Boards: The federal and state governments will create the National Surrogacy Board (NSB) and State Surrogacy Boards (SSB), respectively. I advising the central government on surrogacy policy, (ii) developing a code of conduct for surrogacy clinics, and (iii) regulating the functioning of SSBs are all tasks of the NSB.The federal and state governments will establish the National Surrogacy Board (NSB) and State Surrogacy Boards (SSBs). The NSB’s responsibilities include: I advising the central government on surrogacy policy; (ii) establishing a code of conduct for surrogacy clinics; and (iii) overseeing the operation of SSBs. The SSBs’ responsibilities include I monitoring the Act’s implementation and (ii) examining the activities of the appropriate authorities at the state/union territory level.

Termination of pregnancy of surrogate child: A child born through a surrogacy procedure is considered the biological child of the intended couple. The surrogate mother’s written consent and the authorised authority’s approval are required for the surrogate child’s abortion. In order for this authorization to be valid, the Medical Termination of Pregnancy Act of 1971 must be followed. Furthermore, the surrogate mother will have the option to withdraw from surrogacy before the embryo is implanted in her womb.

Punishments and offences:[4]

abandoning or exploiting children born through ART, (ii) selling, purchasing, trading, or importing human embryos or gametes, (iii) obtaining donors through intermediaries, (iv) exploitation of the commissioning couple, woman, or gamete donor in any form, and (v) transferring the human embryo into a male or an animal. The first breach of these offences will result in a punishment of between five and 10 lakh rupees. For repeated infractions, these offences will be punished by imprisonment for a period of eight to twelve years, as well as a fine of ten to twenty lakh rupees. Any clinic or bank that promotes or sells sex-selective ART faces a five- to ten-year jail sentence, a fine of Rs 10 lakh to Rs 25 lakh, or both. The decision to use surrogacy has no bearing on whether or not a child is aborted Abortion of the surrogate child requires the surrogate mother’s written agreement and the approval of the authorised authority. According to the bill, no one can force the surrogate mother to terminate the foetus. The kid is considered the biological child of the intending couple after delivery, and they are responsible for raising the child. Only the surrogate mother’s consent will be required to abort a child born through a surrogacy arrangement if the kid is at risk of physical or mental defects. This is a decision that will be made without the input of the intended couple. Abortion is permitted in such instances under the MTP Act of 2021, with the agreement of the ‘pregnant lady.

Literature review

Every day, around 259,200 children are born. That’s nearly three children per second. For all those concerned, the birth of a new born child is frequently a highly special and interesting occasion. Unfortunately, some couples are unable to have children of their own owing to physiological issues. About one out of every six couples struggles with infertility. This encompasses both people who have been unable to conceive after a year of trying and those who have been unable to carry a pregnancy to term. Infertile marriages have been more common since the 1970s (Winston & Bane, 1993. Social attitudes on medical procedures such as IVF have evolved throughout time. As a result, infertile couples are less hesitant to seek aid.

Infertility impacts many infertile people’s most basic thoughts about who they are and what their position in the family is. It has an impact on one’s own identity. the degree to which a goal has been met as a result, infertility is considered a serious health issue. It’s also explaining why people who are unable to produce children naturally seek for alternative methods to take up the role of a parent In the past, couples who were unable to conceive were expected to pursue adoption as a means of achieving their goals.  Parental aspirations There are several choices available today for infertile couples, as well as singles and single parents who desire to start a family. The desire to be a parent drives people to seek out alternate answers. Artificial Reproductive Technology (ART), In Vitro Fertilization (IVF), and Intrauterine Injections are just a few examples (IUI).

Despite many news articles emerging in both national and international media on commercial surrogacy in India, according to Prof. Amrita Pandey’s[5] book (Who Owns These Nine Months—- 2008), Amrita talks of little attention on the difficult problems that surround this booming sector. Most news headlines, she claims, are about “outsourcing of pregnancy” in impoverished Anand, life tales of poor, illiterate women and their inebriated husbands, and the cost disparities in surrogacy in India and the United States, as well as their win-win endings. Surrogacy is a multibillion-dollar business in India and an ever-growing medical tourism sector, she argues, yet there are no regulations regulating or controlling commercial surrogacy. She wonders why there isn’t a legislation since surrogacy is such a big business. Is it because uncontrolled surrogacy is a lucrative industry because there are no laws? Surrogacy supporters say that the arrangements benefit all parties involved since the needs of two desperate women are satisfied. The phrase “the barren gets a kid, the broke gets a bonus” is commonly used to describe the surrogacy arrangement. Surrogate moms frequently put the money they earn to good use.

Others argue that the right to procreate is a crucial one. In the United States, for example, the Constitution protects this right (Field, 1990). Given their infertility, the couple may use their right in the most feasible way possible. However, according to Cline (2008), this right is not explicitly stated in the constitution. Margaret Jane Radin (1988) claims that if males may contribute sperm and be compensated for it, then surrogacy should be permitted as a similar trade for women.

Some authors make the economic argument that free trade would increase efficiency. When there are parents who want children and women who want to be surrogates, this will happen. However, underground markets will emerge once this transaction in parental rights is forbidden. According to Posner (1987), difficult adoption procedures in many nations cause people to go to other countries to avoid the regulations, resulting in a massive black market. As a result, acknowledging the existence of such a market is preferable to better controlling and optimising it.

Surprisingly, there are strong feminists on both sides of the debate. some claim that feminists who support full legalisation of surrogacy argue that the world isn’t perfect. Men and women are not equal, and women have been restricted to a distinct domain at home, away from the marketplace, for many years. This has rendered women helpless, as the marketplace, which is dominated by males, is the source of power. Men have been liberated as a result of this power. Women, too, desire to attain this. They don’t want guys telling them what will and won’t sell. Whether or whether child sale and surrogacy are ethically reprehensible should be judged by the women themselves. Many feminists utilise this logic to support the legalisation of surrogacy. Other feminists, on the other hand, agree that women have been kept out of the market for a long time, but women have also been perceived (and treated) as baby-producing machines in the past.

Surrogacy, according to Kimbrell (1988), abuses women economically, emotionally, and physically. One key element is that the majority of women who become surrogates do it for financial reasons. Because they are in severe need of funds to keep their family afloat. Furthermore, agents are Contracts of dubious legality are frequently engaged and arranged. The ladies are obligated to do certain tasks under the terms of their contracts go through all of the tribulations of childbirth, and finally have to give the kid away (Kembrell,1988). Surrogate mothers are frequently uninformed of their legal rights and, because to their financial situation, are unable to exercise them. They cannot afford to hire an attorney in this scenario. When the surrogate mother signs the contract They will not be able to flee because of the contract.


[1] Munjal-Shankar, D. (2016). COMMERCIAL SURROGACY IN INDIA: VULNERABILITY CONTEXTUALISED. Journal of the Indian Law Institute, 58(3), 350–366. http://www.jstor.org/stable/45163396

[2] https://indianexpress.com/article/india/cabinet-approval-to-bill-for-regulation-of-reproductive-technology-6276607

[3] https://www.thehindu.com/news/national/bills-on-assisted-reproductive-technology-surrogacy-passed/article37904427.ece

[4] THE SURROGACY (REGULATION) BILL, 2020

[5] Pande, A. (2010). Commercial Surrogacy in India: Manufacturing a Perfect Mother‐Worker. Signs, 35(4), 969–992.

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