Surrogacy in India has been made aware to a lay man in the past decade, more so as a trend. Prior to 2008, surrogacy was being carried out in India without any existence of a statutory regulatory system. The Indian council for Medical Research had formulated certain guidelines in the year 2005 but these guidelines did not have any statutory basis. The turning point was when the supreme court was called upon to deal with a case related to surrogacy in the year 2008, Baby Manji Yamda vs. Union Of India.
The meaning of surrogacy is to have a contract/ arrangement (legal in nature) whereby a woman(the surrogate mother) agrees to bear a child for another person(s), who will be considered the child’s parents.
Types of surrogacy
• Traditional surrogate. It’s a woman who gets artificially inseminated with the father’s sperm. They then carry the baby and deliver it for you and your partner to raise.
A traditional surrogate is the baby’s biological mother. That’s because it was their egg that was fertilized by the father’s sperm. Donor sperm can also be used.
• Gestational surrogates. A technique called “in vitro fertilization” (IVF) now makes it possible to gather eggs from the mother, fertilize them with sperm from the father, and place the embryo into the uterus of a gestational surrogate.
The surrogate then carries the baby until birth. They don’t have any genetic ties to the child because it wasn’t their egg that was used.
A gestational surrogate is called the “birth mother.” The biological mother, though, is still the woman whose egg was fertilized.
The foundation of right to use surrogacy is part of:
• Right to Personal liberty
• Right to Procreation,
• Right to Found a Family
• Right to Privacy.
• Right to make reproductive choices
Additionally, the enjoyment of benefits of scientific and technological progress and its application is recognized as a human right and is included in the Universal Declaration of Human Rights (Article 27) and the International Covenant on Economic, Social and Cultural rights (Article 15).
Commercial surrogacy was legalized in India since 2002 (Not anymore. Explained later on.)
In 2002, the Indian Council of Medical Research (ICMR) laid out guidelines for surrogacy which made the practice legal, but did not give it legislative backing. As per the guidelines:
• It prohibited sex-selective surrogacy.
• Required the birth certificate to only have the names of commissioning parents.
• Required one of the commissioning parents to be a donor,
• Required a life insurance cover for the surrogate mother,
• Ensured right to privacy of the mother and the donor, among other things.
Baby Manji vs Union of India:
A Japanese couple commissioned a surrogate mother in India but they ended in a divorce. The single male parent wasn’t granted custody of the child and the mother refused to accept it. Japan gave the child humanitarian visa and allowed the grandmother to take the child on behalf of her son, given his genetic relation with the baby. During the case, however, the Supreme Court recognized that the parent of a surrogate child may be a male and recognized surrogacy as a positive practice.
In re Baby M: A custody case that became the first American court ruling on the validity of surrogacy.
William Stern and Elizabeth entered into a surrogacy agreement with Mary Beth. According to the agreement.
Mary Beth Whitehead would be inseminated with William Stern’s sperm (making her a traditional, as opposed to gestational, surrogate), bring the pregnancy to term, and relinquish her parental rights in favor of William’s wife, Elizabeth.
After the birth, however, Mary Beth decided to keep the child. She and her husband kidnapped the infant.
William and Elizabeth Stern then sued to be recognized as the child’s legal parents.
The New Jersey court ruled that the surrogacy contract was invalid according to public policy, recognized Mary Beth Whitehead as the child’s legal mother, and ordered the Family Court to determine whether Whitehead, as mother, or Stern, as father, should have legal custody of the infant, using the conventional ‘best interests of the child’ analysis.
Stern was awarded custody, with Whitehead having visitation rights.
The Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha in November,2016 and on 12th January, 2017 it was referred to standing committee. Thereafter on 10th August 2017 the committee gave its report on the same to Lok Sabha and on the basis of that report Lok Sabha passed the bill on 19th December 2018.
Proposes to completely abolish commercial surrogacy. Defining commercial surrogacy as “surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage”
The bill only allows altruistic surrogacy, where the surrogate mother is a close relative of the commissioning parents. The couple also has to prove their infertility. In such cases, the monetary reward only involves medical expenses and insurance coverage for the surrogate mother.
Under the bill, all surrogacy clinics will have to be registered, the surrogate mother cannot be paid directly and there will be national and state surrogacy boards which will be the regulating authorities for the practice. In addition, all registered clinics will have to maintain records of surrogacy for 25 years.
Commercial surrogacy; punishable with imprisonment for a minimum term of five years and a fine that may extend to five lakh rupees.Abandoning the surrogate child, exploitation of surrogate mother, selling/ import of human embryo have been put down as violations and will attract a minimum penalty of 10 years and a fine up to 10 lakh rupees.
The most jarring provision of the law, is the prohibition of single parents (enabled in ART), homosexuals, live-in couples from becoming commissioning parents.
The bill also disallows childless or unmarried women to be surrogate mothers.
What are the eligibility criteria for couples intending to commission surrogacy?
• Close relative of the surrogate mother.
• Indian citizens who have been married for at least five years.
• In the age group of 23-50 years (female partner) and 26-55 years (male partner);
• A medical certificate stating that either or both partners are infertile;
• They do not have any surviving child (whether biological, adopted or surrogate), except if the surviving child is mentally or physically challenged or suffers from a fatal illness;
• A court order concerning the parentage and custody of the child to be born through surrogacy;
• Insurance coverage for the surrogate mother.
Who is eligible to be a surrogate mother?
• A close relative of the couple intending the surrogacy,
• She was or is married and has a child of her own;
• She is 25 to 35 years old;
• She has not been a surrogate mother before;
• She possesses a medical certificate of her fitness for surrogacy.
Surrogacy (Regulation) Bill, 2019: Critical Appraisal
• First of all the Surrogacy (Regulation) Bill of 2016, was re-introduced in the Lok Sabha as Surrogacy a(Regulation) Bill, 2019 and was passed on 05.08.2019 in the exact same form.
• Ban on commercial surrogacy on the ground of exploitation is irrational and is a direct encroachment on the couples right to reproduction.
• It abides by archaic ideas of who can be parents and who cannot.
• The stringent prerequisites such as childlessness, five years of non-conception for intending parents, the surrogate being a close relative, amongst others, are prone to criticisms.
• Stable income of women who are currently involved in commercial surrogacy will be affected because the bill has blatantly ignored that the women who opt for being surrogate mothers are from economically vulnerable backgrounds and for them surrogacy is a source of livelihood. A violation of her right to enjoy the benefits of scientific and technological progress. A complete ban on commercial surrogacy deprives them of their livelihood and rather, expects them to undergo reproductive labour without any compensation.
• The Bill contradicts the law of adoption in India. Section 7 and 8 of the Hindu Adoption and Maintenance Act, 1956, and Section 57 of the Juvenile Justice Act, 2015, allows conditional adoption for single and divorced parents.
• India is rapidly developing as a major destination for procreative tourism particularly for surrogacy practices. Hence, limiting surrogacy only to Indian citizens is a measure which is against the contemporary developments in international trade relations. . The Bill also envisages prohibition on foreign nationals from availing surrogacy services.
• Another feature is that surrogacy to be restricted to a married couple to the extent that it creates an exclusion to unmarried/ single persons and persons in live-in relationships which strongly violates Article 14 of the Indian Constitution where the concept of equality is enshrined.
• The Bill contradicts the law of adoption in India. Section 7 and 8 of the Hindu Adoption and Maintenance Act, 1956, and Section 57 of the Juvenile Justice Act, 2015, allows conditional adoption for single and divorced parents.
The Bill is silent about the issue of a breach of terms and conditions of surrogacy by surrogate or indented couple during the surrogacy process or afterwards.
References:
https://www.legallyindia.com/views/entry/the-surrogacy-regulation-bill-2016-all-you-need-to-know
www.barandbench.com
www.livelaw.in
prs.india.org
resolve.org
About the author –
This article has been written by Adv. Irika G. Jyoti, Completed LL.B from National Law University, Jodhpur.
