Surrogacy Laws in India
Surrogacy Laws in India
- Mansi Choudhary, ICFAI Law School, Jaipur
Our Mother Earth has awarded woman to originate a soul within herself. But regrettably due to some disorder some women are not capable to give birth to their child. But Science and Technology has done tremendous, they have made everything possible. Surrogacy is a process where a woman agrees to carry the child of another couple in her womb who are not capable to give birth their own child. There are various methods like Assisted Reproductive Technology (ART), In Vitro Fertilisation (IVF) and Intra-Uterine Injections (IUI). Artificial Reproduction Techniques (ART) is said that when an embryo from the eggs of intended couple is formed in the test tube and transferred to the womb of the surrogate, thus resulting child has no inherited resemblance to the surrogate mother. Contemporary advancement in the Artificial Reproductive Techniques (ART) has led to the boom in the field of surrogacy industry. Presently there is no as such law for regulating surrogacy in India. As it is not directly declared as binding by law, it is deemed to be enforceable and fully valid. There are some National Guidelines for Assisted Reproductive Technologies which provides allusion to surrogacy arrangements; however they are not legally enforceable. The Law Commission of India has also recommended the enforceability of surrogacy agreements. Surrogacy is mainly consist of two types gestational and traditional. In 2008 Assisted Reproductive Technologies Bill has first been introduced and then in 2010 and 2013 respectively, it recognises the legality of surrogacy and the enforceability of surrogacy agreements. Traditional surrogacy involves insemination of the surrogate naturally or artificially with semen of the male partner of the childless couple and thus resulting child is genetically related to the surrogate mother. This has several hindrance like ethical, social as well as legal implications . In India commercial surrogacy is banned but not illegal. Since 2002 Commercial surrogacy is legal in India. In 2005 Indian Council for Medical Research (ICMR) gave first guidelines for delegation, supervision and regulation of ART clinics. In 2015 Government of India eliminate foreign nationals, NRI and POI. This bill allows only Indian married heterosexual infertile couple to avail surrogacy services .
In 2016 the Surrogacy (Regulation) Bill was launched by Minister of Health and Family Welfare, Mr. J. P. Nadda in Lok Sabha on November 21, 2016. It establishes a regulatory framework for good surrogacy practices in India. However, the suggested ban imposed by the Bill on commercial surrogacy and elimination of foreign couples from availing surrogacy services are considered as the biggest flaw of this Bill.
Altruistic surrogacy is an arrangement without transfer of funds as inducement, is currently practised in some centres in India. Indian infertile couples between the ages of 23-50 years (woman) and 26-55 (man) who have been married for five years and who do not have their own child will be eligible for surrogacy. The surrogate mother should be a close relative of the considered couple and between the ages of 25-35 years and shall act as a surrogate mother only once in her lifetime. If any institution found undertaking commercial surrogacy, abandoning the child, exploiting the surrogate mother, selling or importing a human embryo shall be punishable with imprisonment for not less than 10 years and with a fine up to Rs.10 lakh. The surrogacy clinics which are registered will have to maintain all records for a minimum period of 25 years.
In a case law Jan Balaz v Union of India, the Gujarat High Court stated that Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district. Emotional and legal relationship of the babies with the surrogate mother and the donor of the egg is also of all importance.” The court has taken the surrogacy laws from Ukraine, Japan, and the United States. In India dual citizenship is not considered, the children will have to convert to Overseas Citizenship of India if they also hold non-Indian citizenship.
It has also been held by the Patna High Court in Bholanath vs. Shardha Devi, that the legal rights of the father have to be read subject to the welfare of the child. this view was reiterated by the Supreme Court in Veena Kapoor vs. Verinder Kumar with the mandate that “in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal rights of this or that particular party.”
In Baby Manji Yamada v. Union of India & Another an identified woman donated the egg, which after fertilization with the sperm of Mr. Yamada was introduced into the body of Surrogate mother. Thus, it was not a case of involvement of „couple‟. Mrs Yamada had no contribution in the birth of the child. Surrogacy is both a threat and an opportunity. On the one hand it gives infertile couples and surrogate mothers the possibility to fulfil their desires: a child and the opportunity to take better care of their family respectively. On the other hand there is a risk that with the commodification of children and parenthood, women are exploited and turned into baby producers. Legal provisions in India does not hold good in the interest of an AID child and there is a lot of confusion regarding the legal implications of artificial insemination, especially surrogacy since it is a device which fulfil desire of thousands of childless couple it should hop to be more popular in fact. In order to avoid complications and unpleasant Artificial Insemination Donor situations, a comprehensive legislation should be enacted taking into consideration various existing legislations wherein the question of validity of surrogacy overlaps. Otherwise a surrogate child becomes illegitimate and declaration of a surrogate child as illegitimate deprives it of all rights and puts the child to great hardship which is quite unjust. The existing laws in India are totally opposed with modern medical advancement. The ART Bill, 2013 has still not become a law, the Indian Council of Medical Research Guidelines, 2005 provide the only non-statutory provisions which are neither justificable nor enforceable in a Court of law. May we all hope that the Indian parliament will soon realise the importance of enacting a comprehensive law dealing with all the intricacies of surrogacy.
Surrogacy contract is often compared with prostitution and adultery. However surrogacy contracts are less like prostitution and more like other service contracts that individuals enter into for purely financial reasons. In surrogacy one person gives one or two other people a lifetime of joy, not just a few moments of physical enjoyment. This is for the sake of both to society and to individuals. In surrogacy one woman gives the gift of a child to one or two people who otherwise would not be able to have one. The surrogate mother herself gains money; she may also gain intrinsic benefit knowing that she has helped someone. Hence it can not be compared with prostitution. Moreover sexual intercourse is not the basis of surrogacy contract, thus no question of adultery arises in this situation.
The countries which allow the surrogacy are of the majorly Altruistic type and not of the Commercial types where it is only done for the purpose of service to other, on the monetary compensations of the medical expenses, paid by the intended parents. In India, Surrogacy is been allowed since 2002 of the types Altruistic and Commercial. But, the thing is that it has not got any legal status in the country. So, it is the urgent need of the hour to get the legal status of the surrogacy because the foreigners are travelling to India for the babies as the expenses are very less when compared to the other countries, To prevent the exploitation and rights of the women in India expenses for the babies are less compared to other countries.
There are problems which create confusion and need to be sorted out. A problem which may hamper the process arises when birth of the child is to be caused by caesarean delivery. For such surgery, consent of the surrogate mother is to be obtained. Her refusal may imperil the life of the child. But in the event of her refusal to undergo surgery, some helpless situation may shatter the process. Confusion also exists where a surrogate mother fails to take standard care and precautions during pregnancy as a result of which harm is caused to the foetus. It is likely that an action can be initiated for breach of contract or a tort action on grounds of negligence.
References:-
1. Nakash A, Herdiman J. Surrogacy. J Obstet Gynecol. 2007;27(3):246-51.
2. PRS Legislative Research. New Delhi: International comparison of surrogacy laws. [cited 2019 Apr 12].
3. Deonandan R. Recent trends in reproductive tourism and international surrogacy: ethical considerations and challenges for policy. Risk Manag Healthc Policy. 2015;8:111-19.
4. Indian Kanoon. Rajasthan: Baby Manji Yamada vs Union Of India & Anr on 29 September, 2008.
5. Indian Council of Medical Research. New Delhi: Guidelines. [cited 2019].
6. Department of Health Research. New Delhi: Assisted Reproductive Technology (Regulation) Bill-2017.
7. PRS Legislative Research. New Delhi: The Surrogacy (Regulation) Bill, 2016.
8. Sushmi Dey. Lok Sabha clears Bill banning commercial surrogacy. The Times of India. 2018 Dec 20.
