Author- Vidhika Chaudhary, a student at Gautam Buddha University
Abstract
This paper explores the intricate legal and ethical dimensions of surrogacy, with a particular focus on the Indian context. Surrogacy, while offering hope to individuals struggling with infertility, has raised complex issues related to privacy, the rights of surrogate mothers, and the legal status of children born through surrogacy. Recent court rulings, such as the Baby Manji Yamada vs. Union of India (2008) case and the Jan Balaz v. Anand Municipality (2009) case, have provided crucial insights into the challenges and opportunities in regulating surrogacy practices in India. Through an analysis of these cases and relevant legal provisions, this paper examines the evolving landscape of surrogacy laws and their implications for the rights and well-being of all parties involved.
Introduction
Surrogacy is a boon to mothers’ yearning for a child but are unable to do so. It is the process of carrying a child by a woman for the gestation age on behalf of another individual or couple. The woman carrying the child is termed a Gestational carrier and is impregnated through the use of In vitro fertilization. In Vitro Fertilization is the method by which doctors create an embryo by fertilizing an egg from the intended mother with the sperm of the father, because the gestational carrier does not provide the egg she is not genetically related to the child.
Surrogacy in India became a business more than a blessing to parents as people started using this process as a means of making money. The surrogate and the intended parents entered into a contract that was based on monetary benefits to the surrogate which led to exploitation of the same by hospitals as they had their fair share of a commission in providing the facility.
In 2002 surrogacy was legalized in India but long before that in the 1970s India had the highest rate of reproductive tourism. A town in Gujrat by the name of Anand also known as the Surrogacy capital of India was a blooming business of surrogacy. After the legalization of surrogacy Commercial Surrogacy gained pace and many clinics and hospitals claimed to provide expert services in the field to foreigners. The main reason for this was poverty as the business provided a lot of money to people but with this came up the issue of exploitation of women and their rights.
Surrogacy and the Right to Privacy
Surrogacy, as a means of family building, intersects with numerous legal and ethical issues, among which the right to privacy stands out prominently. The right to privacy encompasses various aspects of personal autonomy and dignity, which are crucial for both surrogate mothers and intended parents. Recent court rulings in India have shed light on the complexities of balancing these privacy rights within the framework of surrogacy laws.
Surrogacy and the right to privacy are deeply intertwined because surrogacy involves sharing intimate and personal details about the lives of both surrogate mothers and intended parents. For surrogate mothers, this includes their medical history, identity, and decisions about their bodies. For intended parents, it involves their private choices and personal circumstances regarding family building.
The right to privacy was solidified as a fundamental right by the Supreme Court of India in the landmark Justice K.S. Puttaswamy (Retd.) and Anr. vs. Union of India and Ors. (2017) case. This ruling recognized that privacy is crucial to personal autonomy and dignity, making it an essential consideration in surrogacy arrangements. Protecting privacy in surrogacy is crucial to prevent potential misuse of personal information, exploitation, and social stigma. Surrogacy inherently involves susceptible information, and safeguarding this information ensures that surrogate mothers can make decisions about their own bodies without undue influence or public scrutiny. It also ensures that intended parents can pursue their family-building goals without fear of their circumstances being exposed.
Legal frameworks and court decisions have increasingly emphasized the need for privacy protections in surrogacy. These protections are designed to maintain the dignity and autonomy of everyone involved. By ensuring privacy, the legal system helps protect the sensitive nature of surrogacy arrangements, allowing all parties to engage in this process with respect and security. This respect for privacy upholds the fundamental rights of individuals, supporting their reproductive choices and personal dignity.
Rights of a Surrogate Mother
In India, the surrogacy process is mainly regulated by the Surrogacy (Regulation) Act, 2021. This Act provides for the regulation of surrogacy arrangements, for the rights and well-being of the surrogate mother, and for the matter connected there with any incidental to it. The following is a brief outline of how the rights of surrogate mothers are secured in some of the sections of this Act.
Right to Informed Consent: Under Section 6(1)-The surrogate mother must provide written informed consent to act as a surrogate and carry the child. This means she should fully understand the medical, legal, and emotional implications of surrogacy. She has the right to receive all relevant information about the process before agreeing, ensuring she makes an informed decision without any coercion or pressure.
Right to Medical Care: Section 5(c)- The intending couple is responsible for covering all medical expenses related to the surrogacy. This includes prenatal care, delivery, and postpartum care, ensuring that the surrogate mother does not bear any financial burden for her medical needs.
Section 9- This section specifically addresses the provision of medical and insurance coverage for the surrogate mother, guaranteeing that her health and well-being are adequately supported throughout the surrogacy process.
Right to Privacy: Section 10- This section ensures that the identity and personal details of the surrogate mother are kept confidential. It aims to protect her from public exposure, stigma, or any potential negative social repercussions, maintaining her dignity and privacy throughout the surrogacy arrangement.
Right to Financial Compensation and Support: Section 2(1)(zd)-Defines “altruistic surrogacy,” allowing only the coverage of medical expenses and insurance for the surrogate mother. This provision ensures that while the surrogate mother is not commercially compensated, she is not financially disadvantaged by her participation in the surrogacy.
Section 5(c)- Reiterates that all medical expenses and insurance are to be covered by the intending couple, providing financial support for the surrogate mother’s health needs.
Right to Legal Protection: Section 6(2)-A legally binding surrogacy agreement must be in place between the surrogate mother and the intending couple. This agreement, approved by the appropriate authority, outlines the rights and obligations of both parties, offering legal protection to the surrogate mother.
Section 4- Details the requirements for the surrogacy agreement, ensuring that all aspects of the surrogacy arrangement are clear and legally enforceable, thereby protecting the surrogate mother’s rights.
Right to Health and Safety: Section 5(b): The surrogate mother must have a certificate of medical and psychological fitness before undertaking surrogacy procedures. This ensures that she is in good health and capable of carrying the pregnancy safely.
Section 9- Further ensures the health and safety of the surrogate mother by mandating insurance coverage, which includes any medical emergencies that might arise during the surrogacy.
Recent Court Rulings
Baby Manji Yamada vs. Union of India
Background
The landmark case of Baby Manji Yamada vs. Union of India (2008) is pivotal in the legal landscape of surrogacy in India. This case involved the complex interplay of surrogacy laws, nationality issues, and the rights of the surrogate mother, the intending parents, and the child. The case arose when a Japanese couple, Mr. and Mrs. Yamada, engaged an Indian surrogate mother to carry their child. However, complications ensued when the couple divorced before the child, Baby Manji, was born. Mrs. Yamada no longer wanted the child, while Mr. Yamada desired to take Baby Manji to Japan. This situation created legal, ethical, and diplomatic challenges, requiring the intervention of the Indian judiciary.
Facts of the Case
Mr. Yamada sought to gain custody of Baby Manji after his divorce from Mrs. Yamada, who renounced her parental rights. Baby Manji was born in India, and due to the divorce, the child was left in legal limbo, with Mr. Yamada facing difficulties in obtaining travel documents and a visa for the child from Indian authorities.
Issues Presented
- The legal status and rights of Baby Manji in the context of Surrogacy Laws in India.
- The determination of parental rights and responsibilities post-divorce in a surrogacy arrangement.
- The process and requirements for issuing travel documents and a visa for Baby Manji to travel to Japan with her intending father.
Arguments
Petitioner’s Arguments:
Mr. Yamada argued for his right to custody of Baby Manji, asserting that the surrogacy agreement and his biological connection to the child established his parental rights. He contended that Baby Manji’s welfare was paramount and that he was prepared to provide a stable and loving environment for her in Japan. He requested the issuance of necessary travel documents to take Baby Manji to Japan.
Respondent’s Arguments:
The Union of India and related authorities cited the lack of clear surrogacy regulations in India at the time, leading to complications in the issuance of travel documents. Concerns were raised about the legal and diplomatic implications of allowing Baby Manji to leave the country without comprehensive legal documentation and clear parental rights.
Judgment
The Supreme Court of India recognized the complexities and sensitivities involved in the case. The court focused on the welfare of Baby Manji, considering her right to a stable and caring environment. It also acknowledged the gaps in the existing legal framework regarding surrogacy in India, which contributed to the challenges faced by the petitioner.
The Supreme Court ruled in favor of Mr. Yamada, emphasizing the child’s best interests. The court directed the Indian authorities to issue the necessary travel documents and a visa for Baby Manji, facilitating her travel to Japan with her intending father. The judgment underscored the need for regulatory clarity and legal protections in surrogacy arrangements to prevent such issues in the future.
Jan Balaz v. Anand Municipality (2009)
Background:
The case of Jan Balaz v. Anand Municipality (2009) is significant in the context of surrogacy in India. It involves a Czech national, Jan Balaz, who entered into a surrogacy arrangement with an Indian surrogate mother in Anand, Gujarat. However, after the birth of the child through surrogacy, Mr. Balaz faced challenges in obtaining legal recognition of parenthood and securing travel documents for the child to return to the Czech Republic.
Facts of the Case:
Jan Balaz engaged in a surrogacy arrangement in Anand, Gujarat, where an Indian surrogate mother carried and delivered a child for him. However, Mr. Balaz encountered difficulties in obtaining legal recognition as the child’s parent and in securing travel documents for the child to accompany him to the Czech Republic.
Issues Presented:
- The recognition of Jan Balaz as the legal parent of the child born through surrogacy.
- The issuance of travel documents and related legal formalities for the child to travel to the Czech Republic with Mr. Balaz.
Arguments:
Petitioner’s Arguments:
Jan Balaz asserted his parental rights based on the surrogacy agreement and biological connection to the child. He emphasized the child’s welfare and his ability to provide a nurturing environment for the child in the Czech Republic. He sought legal recognition of parenthood and the issuance of necessary travel documents for the child.
Respondent’s Arguments:
The Anand Municipality and related authorities cited legal and procedural hurdles in recognizing Mr. Balaz as the child’s parent and issuing travel documents. Concerns were raised about the lack of clear guidelines and regulations governing surrogacy arrangements and the legal status of children born through surrogacy.
Judgment:
The High Court of Gujarat carefully examined the legal and procedural complexities surrounding the case. It considered the best interests of the child and the need for clarity in surrogacy laws to address emerging challenges.
The High Court ruled in favor of Jan Balaz, emphasizing the child’s welfare and the importance of recognizing his parental rights. The court directed the Anand Municipality and relevant authorities to facilitate the legal recognition of parenthood and the issuance of travel documents for the child to accompany Mr. Balaz to the Czech Republic.
Conclusion
Surrogacy in India has evolved significantly over the years, from being a means of family building to a thriving business. However, this evolution has brought forth numerous legal, ethical, and social challenges. The cases of Baby Manji Yamada vs. Union of India and Jan Balaz v. Anand Municipality highlight the complexities surrounding surrogacy arrangements, particularly in the absence of comprehensive legal frameworks.
The right to privacy emerges as a crucial consideration in surrogacy, ensuring the dignity and autonomy of surrogate mothers and intended parents. Recent court rulings have emphasized the need for privacy protections to safeguard sensitive information and prevent exploitation.
Furthermore, the rights of surrogate mothers are paramount in surrogacy arrangements, as evidenced by the Surrogacy (Regulation) Act, 2021. This Act aims to protect surrogate mothers from exploitation and ensure their health, safety, and legal rights throughout the surrogacy process.
In conclusion, while surrogacy offers hope and joy to many, it also poses significant legal and ethical challenges. Through comprehensive regulation and adherence to principles of privacy, autonomy, and dignity, the surrogacy landscape in India can evolve to provide a safe and supportive environment for all parties involved.
FAQs
- What are the key legal and ethical issues surrounding surrogacy in India? Surrogacy in India raises complex issues related to privacy, the rights of surrogate mothers, and the legal status of children born through surrogacy. These issues intersect with personal autonomy, dignity, and the welfare of all parties involved.
- How have recent court rulings impacted surrogacy practices in India? Recent court rulings, such as the Baby Manji Yamada vs. Union of India (2008) case and the Jan Balaz v. Anand Municipality (2009) case, have provided crucial insights into the challenges and opportunities in regulating surrogacy practices in India. These rulings have emphasized the need for regulatory clarity and legal protections to safeguard the rights and well-being of surrogate mothers, intended parents, and children born through surrogacy.
- What rights do surrogate mothers have under Indian law? Surrogate mothers in India are entitled to various rights, as outlined in the Surrogacy (Regulation) Act, 2021. These rights include the right to informed consent, medical care, privacy, financial compensation and support, legal protection, and health and safety.
- How does the right to privacy intersect with surrogacy in India? The right to privacy is a fundamental consideration in surrogacy arrangements, ensuring the dignity and autonomy of surrogate mothers and intended parents. Recent court rulings have emphasized the importance of privacy protections to safeguard sensitive information and prevent exploitation in surrogacy practices.
- What are the implications of surrogacy laws and court rulings for the future of surrogacy in India? Surrogacy laws and court rulings play a crucial role in shaping the future of surrogacy in India. By providing regulatory clarity and legal protections, these measures aim to create a safe and supportive environment for all parties involved in surrogacy arrangements, while also addressing emerging challenges and ethical concerns.
