Legal Provisions of Surrogacy in India

INTRODUCTION

Surrogacy is derived from the Latin word ‘surrogatus’ which refers to one woman reproducing on behalf of another. Surrogacy is a method or a process in which the parents works with the surrogate who carries their child till the time the infant is born. Surrogacy allows individuals and married couples of different types of gender, backgrounds to have a family. An embryo created by sperm and an egg which is produced by the parents or by the donors and then it is put in the surrogate’s uterus who has no genetic link to the parents. Surrogacy is defined by two ways according to the ‘Black law Dictionary’: -

· Gestational Surgery: One woman provides the egg for fertilisation and the eggs transferred to the uterus other woman (surrogate) for birth.

· Traditional Surrogacy: The woman provides her own egg for fertilisation and acts as a surrogate to give birth to the child of another person.


Surrogacy in India

The commercial surrogacy or the ‘rent a womb’ practice became legal in India in 2002. After that the practice was increased for medical tourism and the country became ‘hub of surrogacy’. The reason of this was, surrogacy costed $100,000 in U.S.A while the cost was minimal in India. The surrogacy industry in the country was profited by $2 billion/year according to CII report of 2012. This increased the illegal practices related to surrogacy like organ trafficking, embryo import, woman becoming surrogate due to lack of education or for money, etc.


ICMR Recommendation

Indian Council of Medical Research presented its draft in the year 2005 and in its 228th report submitted in 2009 to the Law Commission of India with the legislations which was accepted to regulate the process of surrogacy in India. Firstly, it stated that surrogacy agreements will be considered same as the contracts as mentioned in the Indian Contract Act and all the rights will be applicable. Secondly, it stated that, Foreign couples can have surrogacy in India but with conditions that they must take care of the surrogate or must provide local guardian for the surrogate. Thirdly, the birth certificates must bear the name of the birth parents as well as the surrogate parent. Sex-selective should be prohibited according to the recommendations.


BABA MANJI V. UNION OF INDIA

The Supreme Court in this case defined the commercial surrogacy as a form of surrogacy in which ‘a gestational carrier is paid to carry a child to maturity in her womb’ and the aspects for surrogacy agreements, the parties or the stakeholders who may enter into agreement and directed for enactment of statutory law. Supreme Court said that there was a void in the law and there are some irregularities in the same which is the reason that surrogacy is known as the money-making racket. In the following case the surrogacy agreement was between the biological father and mother on the other hand was the surrogate mother which earlier raised some issues which the court later on allowed.


Surrogacy (Regulation) Bill, 2019

The bill was passed by Lok Sabha 5th August 2019 and was passed in Rajya Sabha held on 21 November 2019 and the bill was referred to the Select Committee with 23 members of Rajya Sabha.


Eligibility for surrogacy: According to the act, altruistic surrogacy will be allowed in India and not commercial surrogacy and it is essential that both the partners are infertile to reproduce and a legal certificate as proof is necessary. Further, the certificate must mention that the couple is married for at least five years and that they both are citizens of India. The Assisted Reproductive Technology (ART) clinic must also include the name of the surrogate mother and her address. The age for the wife is 23-50 years and for the husband is 25-55 years.

The bill also mentions that the couple planning for surrogacy must not have any biologically child or a child through adoption or by surrogacy. The couple will be allowed for surrogacy if the surviving child of the couple is physically and mentally challenged or he/she is suffering from an illness which has no permanent cure.


Place for Surrogacy: As stated in the bill, the clinics which are registered under the Surrogacy Regulation Bill 2019 will be allowed for procedure of surrogacy. A surrogacy procedure is defined as “all gynaecological, obstetrical or medical procedures, techniques, tests, practices or services involving handling of human gametes and human embryo in surrogacy”.


Liability in Commercial Surrogacy: As mentioned in the bill, any individual if found advertising surrogacy or undertaking it, or is found ill-treating the surrogate mother or purchasing, importing, selling the human embryos or gametes for surrogacy, sex-selective surrogacy, ill-treating, disowning or abandoning of surrogate child, he/she will be liable for imprisonment of 10 years and can be fine up to 10 lakh rupees.


Abortion of surrogate: In case of the abortion of the surrogate the consent of only surrogate mother is necessary according to the Medical Termination of Pregnancy Act 1971, the intended couple has no right in abortion and further are not eligible for abortion.


The bill lacks: The Surrogacy (Regulation) Bill leaves out the people who are un-married couples, homosexual couples and single woman and men who want to have a child to this process.

· One of the basic human rights is to have a child. According to the Declaration of Human Rights 1948 says, inter-alia, ‘men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family’.

· The Indian Judiciary also recognises the reproductive right as the basic right of human as per “1994 United Nations International Conference on Population and Development (UNPIN 1994)”.

· Therefore, the right to have a child through surrogacy is also a basic right because the reproductive right is basic right.

· The bill prohibits “fashion surrogacy” as only the infertile couple have an option of surrogacy .


Conclusion

Surrogacy is a basic right of every person who intend to have a child through this process. But there must be a free will of the surrogate and she should be provided with proper attention and care during the process by the couple who intend to have a child by that process. Commercial surrogacy is made illegal due to concerns it raised like embryos trading and others. The case law proves that commercial surrogacy can be made legal by inclusion of surrogacy agreement. The Surrogacy (Regulation) bill, 2019 is also an important part for surrogacy as it provides rigorous punishment of 10 years or rupees 10 lakh against all the illegal activities related to surrogacy and with the surrogate mother. The bill still lacks some points related to option for surrogacy for homosexual couples and for single men and women. Surrogacy is legalised for married couples who are Indian citizens and commercial surrogacy including surrogacy for foreign couples who are not the citizens of India is prohibited in India .

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