Author: Eshanya Verma, Atal Bihari Vajpayee School of Legal Studies
ABSTRACT
These days, surrogacy is a well recognized procedure. It is the procedure by which a woman bears a kid on behalf of another individual or couple. The unfortunate couple or individual has the opportunity to have an offspring. There are mentions of surrogacy in epics, myths and old tales. In this process the intended parents provide genetic material needed for fertilization, the person who agrees to carry and give birth to the child for some other couple is known as surrogate. She has to go through all the checkups to be deemed fit to carry the child. In consideration the surrogate receives payments, medical cost and care throughout her pregnancy period. A person can adopt for surrogacy on various for various reasons like infertility, same sex couple, past medical problems and many various reasons. India is considered as a commercialized hub for surrogacy because of its cheap labor cost and medical facilities. Surrogacy laws have developed over time to be in such a way that no party to a surrogacy arrangement is been taken advantage of. There have been a lot of evolution for surrogacy laws.
INTRODUCTION
Surrogacy once a niche practice, has become more common in modern family planning, while it offers hope and opportunity to intended parents, it also raises complex legal issues that must be navigated carefully. This article explores the evolving legal landscape of surrogacy in contemporary family law, exploring its implications and challenges.
What is surrogacy?
Surrogacy is the process by which a woman (surrogate mother) carries and gives birth to a child for another person or couple (intended parents). traditional surrogacy and gestational surrogacy are two main types of surrogacies.
Evolution of Surrogacy Laws
- The development of surrogacy laws in India is indicative of a shift away from a liberal legal environment and towards one that is more controlled and restricted.
- In 2002, the Indian government legalised commercial surrogacy. This marked the beginning of a significant surge in the number of commercial surrogacy firms operating in India, many of which claim to be experts in surrogacy law and have assisted foreigners seeking to use a mother’s womb for rent.
- The Law Commission of India’s 228th report suggests outlawing the practice of commercial surrogacy and adopting appropriate legislation that permits ethically righteous altruistic surgery.
- There were certain guidelines issued by the Indian council of medical research for regulating surrogacy arrangements they are:
- The surrogate mother would be entitled for the monetary compensation, the value of which would be decided by the couple and the surrogate mother.
- The surrogate mother cannot donate her own egg for the surrogacy and that she must relinquish all parental rights related to the surrogate child.
- Guidelines for the regulation of assisted reproductive technologies (ART) and surrogacy services in India were released in 2010 by the Indian Council of Medical Research (ICMR).
- The purpose of these recommendations was to provide ethical standards for surrogacy agreements, as well as standards of practice and eligibility requirements for intended parents and surrogates.The standards, however, were not legally enforceable and did not apply to all clinics and practitioners that provided surrogacy services.
Commercialisation of Surrogacy in India
It can be difficult to conceive a child being traded, since children are symbols of love, not money, and having a child is seen as detracting from marketing activities. Surrogacy has, nevertheless, entered the commercial domain in a nation such as India.
Indian surrogacy arrangements are becoming commercialised. India became a well-liked location for international surrogacy in the early 2000s because to its more affordable prices as compared to Western nations and its more lenient legal system. In India, commercial surrogacy was lawful, enabling paid surrogacy programmes in which intended parents paid surrogates a sum of money in addition to medical benefits for bearing their child.
Concerns about the commercialization of surrogacy led the Indian government to introduce the Surrogacy(Regulation) Bill, which regulated and restricted commercial surrogacy. The measure aims to protect surrogate mothers’ interests, prevent women from being exploited, and assure ethical surrogacy practices.
The Surrogacy (Regulation) Bill
The Surrogacy (Regulation) Bill was introduced. In order to control surrogacy practices and solve moral and legal issues, the Indian government sponsored the Surrogacy (Regulation) Bill in Parliament in 2016.
The proposed legislation aimed to outlaw commercial surrogacy and permit only selfless surrogacy agreements in which surrogates are compensated only for their medical costs.
The 2018 Surrogacy (Regulation) Act
The 2018 Surrogacy (Regulation) Act The Indian Parliament approved the Surrogacy (Regulation) Act in 2018, which essentially outlawed commercial surrogacy and established stringent guidelines for selfless surrogacy. The legislation restricts surrogacy to close relatives of the intended parents under specific circumstances, outlaws commercial surrogacy, and permits only selfless surrogacy partnerships.
The act creates a framework of regulations regarding surrogacy, including the creation of surrogacy boards to supervise the process and resolve conflicts.
India the supermarket of surrogacy
Due to the lower cost of surrogate mother availability or, more accurately, the lower cost of reproductive laborour nation has grown into a major surrogacy superstore.
India’s reputation for medical knowledge and modern fertility treatments has also contributed to its popularity as a surrogacy destination.
Surrogate Charges (INR 1,00,000-3,50,000) were the associated fees. The cost of this varies from state to state in India. In order to qualify, the surrogate mother must be in good health, be the mother of a single child, and be mature enough to handle the fallout from the surrogacy procedure.
Egg Donor (about INR 2,00,000) The most competent and fertile egg donors are in high demand, and their costs reflect their fertility. Cost of an IVF operation (INR 66,000) (INR 1,35,000) Twins.
Elements of a Surrogacy Contract
Identification of Parties – The parties to the surrogacy contract are listed first, including the intended parents (also known as commissioning parents), the gestational carrier (also known as the surrogate), and any potential egg or sperm donors.
Compensation and Expenses – The financial terms of the surrogate’s services, including payment and reimbursement of costs, are outlined in the contract. The standard compensation package includes the surrogate’s base price, supplemental payments for particular events (such as the transfer of embryos, pregnancy confirmation, and birth), and reimbursement for other relevant costs such as travel, legal fees, medical bills, and other related expenses paid during the surrogacy procedure.
Medical Procedures and Treatment – The medical processes and treatments related to the surrogacy process, such as in vitro fertilization (IVF), embryo transfer, prenatal care, and delivery, are described in the contract. It could outline each party’s obligations with regard to prescription drugs, check-ups, treatments, and following guidelines and advice from medical professionals.
Parental Rights and Consent – The agreement covers the intended parents’ and the surrogate’s parental rights and obligations, including consenting to medical care and making decisions during the surrogacy procedure. It could specify what is expected of the surrogate in terms of custody, parental rights, and rights forfeited upon birth.
Confidentiality and Privacy – To safeguard the identities and private information of all parties participating in the surrogacy agreement, the contract contains measures pertaining to privacy and secrecy. It might outline guidelines for handling sensitive data and communications, as well as prohibitions on disclosing private information to unaffiliated parties.
Termination and Dispute Resolution – The agreement specifies how the surrogacy partnership will end in the event of unanticipated events, health issues, or contract violations by either party. It could contain clauses pertaining to dispute resolution procedures, including arbitration or mediation, to handle problems or conflicts that might come up throughout the surrogacy procedure.The agreement specifies how the surrogacy partnership will end in the event of unanticipated events, health issues, or contract violations by either party. It could contain clauses pertaining to dispute resolution procedures, including arbitration or mediation, to handle problems or conflicts that might come up throughout the surrogacy procedure.
CONCLUSION
Surrogacy, whether traditional or gestational, provides a road to parenting for individuals or couples experiencing infertility, medical issues, or other difficulties. However, it also raises a slew of legal, ethical, and societal issues that must be properly managed.
The legal framework governing surrogacy differs greatly among nations, resulting in discrepancies and ambiguities in how surrogacy agreements are controlled and recognized. Parental rights and obligations, the enforceability of surrogacy agreements, and the rights and well-being of surrogate mothers are among the most pressing legal problems. Efforts to address these issues have resulted in legal measures that try to regulate surrogacy, safeguard the rights of all individuals involved, and ensure ethical conduct.
Prioritizing the rights, dignity, and well-being of all persons involved is crucial while negotiating the legal ramifications and difficulties of surrogacy in contemporary family law. Strong legal safeguards, informed consent, extensive support services, and continual communication between stakeholders, legislators, medical practitioners, and legal experts are all necessary for this. Through the use of compassion, understanding, and a dedication to fairness, society may work toward developing a more reasonable and moral framework for surrogacy in the contemporary day.
