From Wombs to Courts: Examining Surrogacy Laws in India

From Wombs to Courts: Examining Surrogacy Laws in India

Author: Chandini Prajapati from City Groups of Colleges, Lucknow

Abstract:

In the intricate landscape of family creation, surrogacy emerges as a delicate solution for those facing physiological barriers to childbirth. Advances in medical science, legislative reforms, and evolving social norms converge to render surrogacy more acceptable. However, India’s embrace of surrogacy carries both promise and peril.

On one hand, commercial surrogacy looms – a transactional path fraught with risks. Unregulated, it threatens human rights and invites criminal exploitation. Yet, within this complex tapestry, there lies hope. This research delves into suitable methods for integrating surrogacy into a legal framework, sparking dialogue on medical progress and the essential facets of surrogacy.

Introduction

Surrogacy:  A Pathway to Parenthood.

Surrogacy, a remarkable journey that bridges the gap between hope and reality, offers a lifeline to those who long for a child but face physical limitations. In this intricate process, a surrogate mother selflessly carries a child on behalf of another individual or couple. It is important to know about the process, seek professional advice, and build a support network with Fertility World Surrogacy Center India.

Types of Surrogacy

• Traditional Surrogate:
  • A traditional surrogate, or genetic surrogate, shares a biological connection with the resulting child. Her egg is used to create the embryo.
  • The intended father’s sperm (or donor sperm) fertilizes the surrogate’s egg.
  • This type of surrogacy is less common due to the genetic link between the surrogate and the child.

• Gestational Carrier:
  • A gestational carrier, on the other hand, has no genetic relation to the child.
  • An embryo, created using the intended mother’s (or donor’s) egg and the intended father’s (or donor’s) sperm, is transferred to the gestational carrier’s uterus. This approach is more prevalent and allows the intended parents to have full custody of the child after birth.

Eligibility for Surrogacy

The Surrogacy (Regulation) Act outlines specific eligibility criteria for intending couples and surrogate mothers. To qualify, the intending couple must be Indian citizens, married for at least five years, and obtain certificates of essentiality and eligibility. The surrogate mother should be a close relative, married, and have her child. She must be between 25 to 35 years old and can act as a surrogate only once. The Act allows altruistic surrogacy (without monetary compensation) and establishes boards for regulation. It aims to ensure ethical and safe surrogacy practices in India

Criteria for a Surrogate Mother

To qualify as a surrogate mother, the woman must be a close relative of the intended couple. She should be between 25 and 35 years old, married, and have a child. Prior surrogacy experience is not allowed. Additionally, the surrogate must have insurance coverage that extends beyond the pregnancy period to cover post-pregnancy care. The Bill also regulates surrogacy clinics, requiring them to be registered under the Act. However, sex selection is strictly prohibited during the surrogacy process.

The Evolution of Surrogacy Laws in India

Early Beginnings

Surrogacy gained legal recognition in India around 2002 when commercial surrogacy was allowed, and the industry snowballed, with an estimated value of $ 2 billion annually. Over 3,000 fertility clinics across the country participated in surrogacy arrangements.

Unregulated Challenges

The unregulated landscape of the surrogacy industry in India gave rise to several critical issues:

• Unethical Practices:

 Brokers and commercial agencies took advantage of the absence of clear guidelines.

• Abandonment of Children:

Some children born through surrogacy find themselves in uncertain situations. The lack of proper legal frameworks led to challenges in ensuring their care and stability.

• Exploitation of Surrogate Mothers: 

Surrogate mothers, often driven by economic necessity, enter into surrogacy arrangements. Their rights as individuals and mothers are frequently overlooked. Lack of legal protection leaves them vulnerable to exploitation.

Legal frameworks, like the Surrogacy (Regulation) Act, aim to protect surrogate mothers. Ensuring fair compensation, healthcare, and emotional support is crucial. Raising awareness about their rights is essential for a more ethical surrogacy practice.

Reasons for Banning Indian Surrogacy

During the heyday of Indian surrogacy, the industry operated without any regulatory framework. This lack of oversight led to the emergence of unsafe and unethical practices that profoundly impacted surrogate mothers.

Unregulated Practices:

• In the early days of Indian surrogacy, there were no clear regulations governing the industry.
• This lack of oversight allowed for the emergence of practices that were unsafe and unethical.
• Without proper guidelines, surrogacy agencies operate without accountability, leading to potential harm for all parties involved.

Exploitation of Surrogates:

• Surrogates, often vulnerable women from economically disadvantaged backgrounds, faced exploitation.
• They were subjected to poor living conditions, inadequate medical care, and sometimes even mistreatment.
• Isolation during pregnancy was common, as surrogates were often kept away from their families until childbirth.
• After giving birth, some surrogates were abandoned by the intended parents, leaving them emotionally and financially vulnerable.

Financial Disparities:

• Intended parents paid substantial fees to surrogacy agencies, but surrogates received only a fraction of this compensation.
• The disparity between what surrogates sacrificed and what they received was stark.
• Many surrogates were driven by financial need, but the financial gains did not adequately compensate for the risks and emotional toll.

Health Implications:

• Repeated surrogacy cycles took a toll on the health of surrogate mothers.
• Their bodies effectively became “baby-making machines,” undergoing multiple pregnancies without sufficient recovery time.
• Lack of proper medical monitoring and care exacerbated health issues.

Lack of Support Services:

• Surrogate mothers did not receive comprehensive support services during their surrogacy journey.
• Emotional and psychological well-being often took a backseat.
• The absence of counseling, mental health support, and postpartum care further compounded the challenges faced by surrogates.

Government Intervention:

• Recognizing these issues, the Government of India stepped in to regulate the surrogacy industry.
• Measures were put in place to protect the rights and well-being of surrogates, intended parents, and the children born through surrogacy.
• The goal was to create a safer, more ethical environment for all stakeholders involved in the surrogacy process.

Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021 represents a significant milestone in India’s legal framework. Passed on December 25, 2021, this legislation aims to regulate surrogacy practices while ensuring the rights and well-being of all parties involved. Key provisions include the establishment of a National Assisted Reproductive Technology and Surrogacy Board to oversee procedures, the prohibition of commercial surrogacy (allowing only altruistic surrogacy), and stringent penalties for violations. By striking a balance between ethical practices and the protection of surrogate mothers and children, the Act addresses a critical aspect of reproductive health and family building.

Regulation of Surrogacy Clinics

• The Act aims to bring transparency and accountability to surrogacy clinics. It lays down guidelines for their functioning, ensuring that they adhere to ethical practices.
• Proper management of surrogacy procedures, record-keeping, and compliance with safety standards are emphasized.

Prohibition of Commercial Surrogacy

• Commercial surrogacy, where surrogates receive financial compensation beyond medical and insurance expenses, is strictly prohibited.
• The Act promotes altruistic surrogacy, allowing surrogates to assist intending parents without monetary gain.

Rights of Surrogate Child

• The legislation recognizes the rights of children born through surrogacy. It ensures their well-being, legal status, and protection.
• Surrogate children have the right to know about their birth and genetic origins.

National Assisted Reproductive Technology and Surrogacy Board

• The Act establishes a central authority—the National Board—to oversee assisted reproductive technology (ART) and surrogacy practices.
• State-level boards are also formed to monitor and regulate ART clinics and surrogacy arrangements within their jurisdictions.

Offenses and Penalties

• The Act prescribes penalties for violations. Certain offenses are categorized as cognizable and non-bailable.
• These penalties act as deterrents against illegal practices and ensure compliance with the law.

Balancing Ethical Practices and Stakeholder Interests

• By striking a balance between promoting ethical surrogacy and safeguarding the rights of surrogate mothers and children, the Act addresses a critical aspect of reproductive health and family building.
• It aims to prevent the exploitation of surrogates while allowing couples struggling with infertility to explore surrogacy as an option.

Key definitions and provisions in the Surrogacy (Regulation) Act, 2021

Surrogate Mother: A woman who carries a child for another person or couple. She enters into a surrogacy arrangement voluntarily, either altruistically or for commercial purposes.

Altruistic Surrogacy: A form of surrogacy where the surrogate mother does not receive any monetary compensation. It is based on goodwill and a desire to help others have a child.

Commercial Surrogacy: Surrogacy involves financial transactions, where the surrogate mother receives compensation. The Act explicitly prohibits commercial surrogacy.

Written Informed Consent: The surrogate mother must provide informed consent in writing before entering into a surrogacy arrangement. This ensures transparency and protects the rights of all parties involved.

Rights of the Surrogate Child: The Act safeguards the rights of the child born through surrogacy. It prohibits abandonment of the child and ensures their well-being.

Embryo Implantation: The Act specifies the maximum number of oocytes or embryos that can be implanted during surrogacy. This regulation aims to prevent health risks and ensure safe procedures.

National Assisted Reproductive Technology and Surrogacy Board (NARTSB): Established under the Act to oversee surrogacy practices, Comprises members appointed by the Central Government. Responsible for regulating surrogacy, maintaining records, and ensuring compliance.

State-Assisted Reproductive Technology and Surrogacy Boards: Each state has its own board to regulate surrogacy within its jurisdiction. These boards function similarly to the NARTSB.

Offenses and Penalties: Commercial surrogacy and exploitation of surrogate mothers and children are strictly prohibited. Penalties are imposed for contravention of the Act’s provisions. Certain offenses are cognizable, non-bailable, and non-compoundable.

             Miscellaneous Provisions: The Act covers aspects such as record maintenance, search and seizure powers, and protection for actions taken in good faith.

 Significant cases related to surrogacy in India:

1. Baby Manji Yamada v. Union of India (2008):

A Japanese couple, Dr. Ikufumi Yamada, and his wife sought surrogacy in India. They hired an Indian surrogate mother in Gujarat. However, due to marital disputes, the couple divorced. The father wanted custody of the child, but Indian law prevented single fathers from adopting girl children.

The Supreme Court granted custodial rights to the child’s grandmother, emphasizing the need for regulated surrogacy laws in India.

2. Jan Balaz v. Anand Municipality (2008):

A German couple employed a surrogate mother in India, and she gave birth to twins. The twins needed Indian passports to travel, but their citizenship status was uncertain due to ongoing legal proceedings.

The Supreme Court granted an exit permit to the children, allowing them to be adopted by the German couple, who continued to fight for their rights.

3. Suchita Srivastava v. Chandigarh Administration (2009):

The court held that Article 21 of the Indian Constitution guarantees personal liberty, including a woman’s right to make reproductive choices.

This right encompasses carrying a pregnancy to full term and giving birth, emphasizing privacy, dignity, and bodily integrity for women.

4. Justice K.S. Puttaswamy and Anr v. Union of India (2018):

While not directly related to surrogacy, this landmark case upheld the right to privacy as a fundamental right under Article 21 of the Constitution.

These cases highlight the complexities and legal considerations surrounding surrogacy in India, emphasizing the need for comprehensive and well-regulated surrogacy laws.

Conclusion

A Ray of Hope

Surrogacy offers a lifeline to couples grappling with infertility, medical constraints, or societal norms. It bridges the gap between longing hearts and the dream of parenthood. India’s medical expertise, cost-effectiveness, and compassionate surrogates have drawn hopeful parents from across the globe.

Legal Horizons

The proposed Surrogacy (Regulation) Bill, 2020 seeks to harmonize rights, responsibilities, and safeguards. As eligibility criteria, altruistic principles, and medical protocols intertwine, India navigates the delicate balance between compassion and regulation.

Ethical Threads

Surrogacy stitches together complex ethical dilemmas. It challenges us to redefine parenthood, autonomy, and the sanctity of life. As we weave this fabric, we must honor the surrogate’s agency, the child’s future, and the intended parents’ dreams.

A Shared Journey

Surrogacy transcends borders, cultures, and identities. It is a shared voyage—a testament to human resilience, empathy, and the pursuit of love. As India continues its legislative odyssey, may it illuminate paths for families yearning to embrace life’s greatest gift.

In this symphony of science, compassion, and legality, let surrogacy’s notes resonate with hope, dignity, and the promise of new beginnings.