Introduction:
Being a parent is the wish of every parenting couple and sometimes due to unexpected circumstances, it does not come true. Reasons like any health problems affecting the uterus, male infertility etc. These parents always have an option, which is surrogacy. Surrogacy is an arrangement in which the surrogate mother, with her consent, carries the unborn child of the intended parents and then, after the child is born, gives custody of the child to the intended parents in accordance with the agreement. This is a method by which any parent can make their child’s wish come true. Simply put, surrogacy is a legal agreement between parents who plan to have a child and a surrogate mother. In India, surrogacy is a socially accepted practice and is also mentioned in mythological texts such as the Mahabharata. Medical reasons or medical threats to the intended mother’s body are the most common reasons for choosing a surrogate. For example, a woman who has had a hysterectomy (removal of the uterus) cannot carry a pregnancy herself, but may still want to have a biological child. In such cases, the surrogate mother could carry with her a fertilized embryo created from the woman’s egg and her partner’s sperm.
Abstract:
Over the last two decades, India has emerged as the alternate capital and destination for couples from various countries. India has seen a remarkable increase in the number of fertility clinics offering artificial insemination, IVF and surrogacy services to Indian nationals and foreign couples. The boom in surrogacy comes with complex legal and ethical issues. Unethical practices such as abuse of surrogate mothers, selective breeding, child abandonment have increased. This article highlights various case scenarios in India and the timeline of various regulations enacted by the Government of India to regulate surrogacy services. The updated Surrogacy Act 2019 has covered various period guidelines and legislative proposals in simple tables. Issues not covered by the recent Indian regulation were also addressed..
CRITERIA TO BE A SURROGATE MOTHER :
It is very important to know who can become a surrogate mother and to determine if a woman is suitable for a surrogate mother the following criteria must be followed.
(a) The substitute must be in generally good health.
(b) There are no medical problems that could cause pregnancy-related complications.
(c) She must not be overweight, a smoker, an alcoholic or a drug addict who is not a suitable surrogate mother because of the risks involved. for both the woman and the child.
d) The surrogate mother must give birth to at least one child earlier and preferably complete her family.
(e) He must give his consent.(f) He must be under 35 years of age.
(g) Being a surrogate mother is mentally and physically hard work. So partner, family or friends should support.
(h) Medical, emotional, legal and practical issues must be carefully considered. The influence of existing children, a potential surrogate partner, family and friends must also be taken into account.
Grounded on inheritable association
Types of surrogacy are distinguished a) Traditional surrogacy- in traditional surrogacy, Surrogacy is artificial fertilization either by the intended father or a sperm patron. The surrogate mama uses her own eggs and is therefore the natural mama of the child. The child thus has a inheritable relationship with the surrogate mama and the unborn father, or sperm patron. still, the surrogate mama must give up her maternal rights to the child and surrender the child to the unborn couple.
b) gestation surrogacy- during a surrogate gestation, an embryo is created through in vitro fertilization( IVF). The IVF process uses eggs and sperm from the unborn couple or from a patron. After the embryo is formed, it’s placed in the womb of the surrogate mama . The surrogate mama isn’t the natural mama in this case. The child is genetically related to those who bestowed their eggs and sperm.
2) There are 2 types of compensation- grounded surrogacy
a) Compensation/ marketable surrogacy- when the surrogate is paid fresh medical charges and other specified charges and insurance for the unborn parents to carry the child., this is called marketable surrogacy. This also includes the trade and purchase of mortal embryos for the purpose of surrogacy.
b) humanitarian Surrogacy- When the surrogate doesn’t admit any compensation except for medical charges and other specified charges and insurance content for the parents intending to carry the child, it’s called humanitarian surrogacy. This is generally done by a close family member or friend.
r the services of the surrogate mother. The agreement limits the responsibility of the parent and intended parent as agreed by both parties to the agreement. The surrogate and intended parent must enter into a surrogacy agreement after they have clearly understood the terms of the agreement.
Center for Surrogacy Law in India advises not only the intended parents and surrogate mother but also the wife of the surrogate mother to prove that they acknowledge the superseding contract. In addition, the intended parents can name a person in the agreement who will take custody of the child if there is doubt as to whether the intended parents can take custody of the child. .
Regulation of Surrogacy Act, 2021 The Regulation of Surrogacy Act, 2021 :
It has created a comprehensive legal frame for surrogacy in India. It confirms eligibility conditions for couples and surrogates and handles business matters.
Eligibility criteria for couples:
Age Subscriber’s parents( ie birth couple) must be between 25- 50 times of age.
No former child The couple shouldn’t have had a child through natural generality, relinquishment or surrogacy.
Medical and radiological reports The couple must submit clear medical and radiological reports, including webbing for inheritable abnormalities.
Insurance Insurance that covers the medical requirements of the surrogate mama for 36 months after the embryo transfer is obligatory. Certificate of significance
After blessing by the National Medical Board, the couple will admit a instrument of significance. Legal evidence The instrument must be transferred to a Magistrate of the First Class to gain an order attesting the birth of the child.
Conditions for surrogate maters
Age Surrogate maters must be 25- 35 times old.
Married with Child They must be married and have at least one child.
First- time surrogate The surrogate must be a first- time surrogate
. Mental health The psychiatrist must certify that the surrogate is mentally healthy.
Fresh Rules Aadhaar cards Surrogate, partner and child must have linked Aadhaar cards for traceability.
Right to information after the age of 18, children born to a surrogate mama have the right to know their origin and to determine the identity of the surrogate mama .
Surrogacy Law in India indigenous Surrogacy Law in India The practice of surrogacy in India has attracted attention not only for its ethical and moral complications but also for its indigenous counteraccusations . Under the Constitution of India, a number of abecedarian rights are applicable when considering the legal frame for surrogacy, including the right to life, particular liberty and sequestration( Composition 21). This composition explores the indigenous aspects of surrogacy in India, fastening on women’s rights and the need for effective regulation. indigenous Rights and Rejection Right to Life and Personal Liberty( Article 21) Composition 21 of the Constitution of India guarantees every person the right to life and particular liberty. The bar has interpreted this right astronomically to include numerous freedoms and rights. Starting with surrogacy, the right to life includes the right to make choices about reproductive health and family life. This means that people have the autonomy to decide whether they choose surrogacy to have a child. The conception of particular freedom extends to the right to sequestration and mortal quality, which are nearly related to reproductive choices. Surrogacy as a reproductive choice should be defended on the base of particular freedom without overdue hindrance.
Right to earn a living Although the Constitution of India doesn’t specifically mention the right to earn a living as a abecedarian right, it’s a natural extension of the right to life and particular liberty. Negotiation, especially when considered as a form of profitable work, implies a woman’s right to earn a living. Engaging multiple surrogates can give fiscal stability and openings for their families. Reproductive
Rights and Autonomy Reproductive Choices The right to reproductive choices is an important part of particular freedom. This includes the right to decide if, when and how to have children. Surrogacy is one of the styles by which individualities or couples can exercise their reproductive rights. Limiting surrogacy without good reason can be considered a violation of their rights. Reproductive Autonomy Reproductive Autonomy refers to an existent’s right to make opinions about their reproductive health and family planning without compulsion or importunity. Andhra Pradesh High Court,B.K. ParthasarathiVs. The government of Andhra Pradesh has honored reproductive autonomy as a abecedarian right. This decision affirms a person’s capability to make choices about surrogacy. The Need for Regulation While the indigenous rights of individualities to choose surrogacy are important, it’s inversely important to fete that limited marketable surrogacy can lead to exploitative practices. Surrogates, especially economically underprivileged women, can be victims of abuse, shy compensation and lack of proper medical care. thus, there’s an critical need for an active legal frame to regulate the practice of surrogacy in India. Regulation can strike a balance between guarding the indigenous rights of individualities and precluding the commercialization and exploitation of surrogate maters
. The Surrogacy Act of 2021 is a step in that direction as it sets eligibility conditions for couples, protects the weal of surrogate matters and prohibits commercialization.
Challenges and Concerns on Surrogacy:
While the Surrogacy Act, 2021 is an important step to regulate surrogacy in India and address ethical issues, it also has challenges and concerns that need to be addressed. The exclusion of LGBTQIA+ couples and cohabiting couples raises questions about equal access to surrogacy services. Additionally, banning commercial surrogacy and embryo export could have unintended consequences for the surrogacy industry. The main issues are:-
1. Exclusion of the LGBTQIA+ community:
The Surrogacy Act of 2021 has raised serious concerns about the exclusion of the LGBTQIA+ community. The law prohibits gay couples from using altruistic surrogacy services. This exclusion gave rise to a debate about discrimination and the incompatibility of equal rights and human rights principles.
Navtej Singh Johar v Union of India: In Navtej Singh Johar v Union of India (Union of India), the Supreme Court of India declared Section 377 of the Indian Penal Code unconstitutional. This decision decriminalized homosexuality and recognized the rights of LGBTQIA+ people. The law allows same-sex couples to surrogacy, which is inconsistent with the principles established in this case because it denies them equal access to surrogacy as a means of biological parenting.
2. . Exclusion of cohabitation: An Another pressing challenge is that the law does not cover cohabitation. Indian courts recognized and enforced cohabitation as a legal partnership, and couples in such relationships regularly established joint households. The fact that husbands are legally excluded from surrogacy arrangements raises questions in many social groups about the availability of similar surrogacy.
S Khushboo Vs. Kanniammam: Supreme Court of India S. Khushboo Vs. Kanniamma that life relationships are protected and protected under Article 21 (relating to life). These elections confirmed the criminal validity of cohabitation. Excluding live-in partners from the scope of the law seems to be inconsistent with the legal status of those relationships and could be considered discriminatory..
3. Implicit Impact on Surrogacy Industry :
The Act imposes a ban on marketable surrogacy and the import of embryos. While these measures aim to help the exploitation of surrogate maters
and safeguard ethical surrogacy practices, they also raise enterprises about the impact on the surrogacy assiduity’s viability and availability. marketable Surrogacy The ban on marketable surrogacy may limit the options available to intended parents and may affect in reduced access to surrogacy services. It might also lead to the underground or limited surrogacy request, potentially adding pitfalls for both surrogate maters
and intended parents. Import of Embryos The Act prohibits the import of embryos to foreign countries, which can affect the global demand for surrogacy services in India. This restriction may lead to unintended consequences, including the decline of India as a surrogacy destination, impacting the surrogacy assiduity’s sustainability. Surrogacy in India presents complex legal, ethical, and indigenous issues.
CASE LAWS:
Jan Balaz vs. Municipality of Anand [2009 SCC OnLine Guj 10446]: This is a landmark case in Indian surrogacy law. The petitioner, who is a German citizen, entered into a surrogacy agreement with an Indian woman in 2008 to have a child. The child was born in Gujarat, India and the petitioner obtained the child’s birth certificate. However, when the petitioner tried to leave India with the child, the authorities prevented him from doing so. The petitioner filed an application in the Gujarat High Court seeking permission to leave India with the child. The court initially rejected the petition, citing concerns about the welfare of the child and the legality of commercial surrogacy in India. However, the court ultimately granted petitioner permission to leave with the child under certain conditions. The case drew attention to commercial surrogacy in India and the need for clearer laws and regulations on surrogacy contracts. The need to ensure the protection and well-being of children born through surrogacy was also emphasized.
Baby Manji Yamada Vs. Union of India [(2008) 13 SCC 518]: This case involved a surrogate born to a Japanese couple in India through a surrogate. The couple later divorced, the mother refused to take custody of the child, while the father did not obtain a visa to India to claim the child. The case raised questions about the legal status and rights of foster children, as well as the responsibilities of the surrogacy clinic and intended parents. Finally, the Supreme Court ordered the Japanese consulate in India to issue travel documents to the child so that she could be taken to Japan, and advised the Indian government to make regulations on surrogacy in India..
CONCLUSION:
In short, surrogacy laws vary from country to country and region to region and are constantly evolving. India has a comprehensive legal framework for surrogacy, including the Regulation of Surrogacy Act, 2021 and related regulations that govern all aspects of surrogacy. However, recent rule changes have introduced new restrictions and could cause problems for those who need donor gametes to conceive a child. Surrogacy laws aim to balance the rights and interests of all parties involved, and those considering surrogacy should seek legal advice to ensure compliance with relevant laws and regulations.
Frequently Asked Questions:
- What would happen if the intended parents refused to take responsibility for the child after birth?.
- What claims does a surrogate have over the child?
- Can the intended parents apply for adoption of the child under Indian law?
- Is surrogacy legal?
- Why is commercial surrogacy banned in India?
BY RAHAT PARDESHI
SHRI NAVALMAL FIRODIA LAW COLLEGE
PUNE
