SURROGACY IN INDIA: A LONG JOURNEY AHEAD

Parenthood is a dream that almost every individual has; being able to have a child is a blessing that many people are not able to get in the traditional way. Surrogacy is a path where willing individuals fulfill this beautiful dream of having a baby, but the Surrogacy laws in India are discriminative in many ways raising problems for expecting parents. Surrogacy is a form of assisted reproductive procedure in which a third party agrees to carry a child for another couple who would become the parents of the child. This is a legal agreement formed between the couple and the third party. The couple opts for surrogacy due to various medical complications. Surrogacy in India has been around since 1978 and India has been referred to as a booming center of the fertility market and has high “reproductive tourism”. With Surrogacy being around for such a long time there is a long way ahead for surrogacy laws to be liberal and beneficial for all.

Surrogacy is not a new technique used in India but was unregulated for a long time as there were no specific laws governing surrogacy. On 3rd October 1978, the successful birth of the first IVF baby Kanupriya alias Durga in Kolkata raised a hope of surrogacy as an alternative reproductive technology (ART) in India. In 2002 Commercial surrogacy was legalized but still, no bill or specific law was formed and implemented, resulting in rampant increase of unregulated surrogacy in India by low-cost fertility clinics and large groups of poor women. India became the hub for surrogacy, and many foreign nationals also approached India in the wake of searching the right surrogate. In 2015, activist and lawyer Jayshree Wad moved to the Supreme Court of India highlighting the pitfalls in the Commercial Surrogacy Market. After much deliberation, in 2015, the Government of India decided to prohibit surrogacy for foreigners. A new Bill was passed known as the “The Surrogacy (Regulation) Bill, 2016” which brought a whole new meaning to surrogacy and created provisions that regulated it.

This bill had various pitfalls, major one being that “infertility” must be proved in the couple to be able to adopt a surrogate child.. The Bill defines infertility as the inability to conceive after five years of unprotected coitus or other medical condition preventing a couple from conception. This definition does not cover all cases in which a couple is unable to bear a child which includes various other medical issues which may lead to miscarriages after conceiving the baby.

The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare, Dr. Harsh Vardhan in Lok Sabha on July 15, 2019. The Bill defines surrogacy as a practice where a woman gives birth to a child with the intention of handing him over to the intending couple. The Bill bans commercial surrogacy, but it does allow altruistic surrogacy. Altruistic surrogacy does not involve monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy, on the other hand Commercial surrogacy is undertaken for a monetary reward or benefit (in cash or in-kind) apart from the basic medical expenses and insurance coverage. On 25th December 2021, President Ramnath Kovind gave the green light to Surrogacy Regulation Bill, 2021 which was passed by the parliament.

There are various pitfalls of the bill passed such as: -

• Article 14 of the Constitution which defines and states equality before the law and equal protection of the law has been infringed. The right of the woman to choose surrogacy or not has been outlawed due to the eligibility clause incorporated in the Act, stating that only the women who is a relative or a close person to the couple would be eligible to become a surrogate.

• Women, particularly in rural India, have to bear the financial burden because of the lack of earning of the male member of the family. They are the primary participants in the process of earning money through childbirth/surrogacy. Legalizing altruistic surrogacy while outlawing commercial surrogacy would create a black market for these services, exposing the main victim – the surrogate mother – to excessive exploitation.

• The mention of only “married couples” being eligible for surrogacy marks the fact that same-sex couples cannot have kids by surrogacy which violates the personal rights of the LGBTQ community.

• According to the Bill, infertility is a mandatory requirement for an indenting couple to obtain a 'certificate of eligibility.' However, infertility is defined as the inability to conceive after five years of unprotected coitus. The definition does not include various situations in which the couple is unable to bear a child due to numerous other reasons. The couple may be able to conceive a child at times, but they may face several complications due to hypertension and diabetes, which may result in miscarriage.

• The Bill makes it mandatory for the surrogate mother to fulfill certain conditions to gain the eligibility certificate. One of the conditions being, the surrogate mother should be the close relative of the intended couple. However, the Act does not specify who amounts to be a ‘close person’ in such scenarios.

• · The Bill specifies that the intended parents will be considered as biological parents of the child. The Bill also says that to abort the child, the written consent of the surrogate mother should be obtained along with authorization by the proper authority. The intended parents have no say if the surrogate mothers want to abort the child and additionally, they will not have any right to ask the surrogate mother if the child is at a risk of physical or mental abnormalities which creates a gap between the surrogate and parents.

• Right to Privacy and Dignity are two important aspects that allows the surrogate mother as well as the couple to go through the process without any judgments or shame as Surrogacy is still not normalized in India and is being considered an unethical and unnatural form of birth. These rights have not been incorporated in the bill which puts the surrogate and couple at risk of being in such society.

• As Surrogacy is knitted with many emotional risks, the mental difficulty for a surrogate mother to give away the child she carried for 9 months, leads to dispute at the time of delivery. These disputes have not been dealt with under the Bill.

• Surrogacy is pointed out as a ‘Need’ rather than a ‘Want’ under this bill which creates a disparity towards the Right to make Reproductive Choice as provided for under Article 21.

Law should consider every possibility when creating a specific bill. The Surrogacy bill is limited and unfair to many people wanting children. Surrogacy Bill, 2021 is surely a great start to create awareness and to regulate the practice to some extent, but to make surrogacy accessible to all and remove the stigmas attached to it; there is a need to make various amendments to reach the level that makes Surrogacy accessible for everyone wanting to choose this path of reproduction and parenthood.

~Authored by Suhani Kapoor