Introduction To Surrogacy
The word “surrogate” is derived from the Latin word “subrogare”, which means “to substitute” or “appointed to act in the place”. ‘Surrogate mother’ implies a woman who carries a baby and gives birth to the baby with the intention to give away such a child to another couple commonly known as ‘intended parents’. Basically, surrogacy is a practice where a woman (surrogate mother) carries a baby for another couple (intended parents) and, after the birth of such a child, hands him or her over to the intended couple.
Criteria For Becoming Surrogate Mother
The Surrogacy Regulations Act, 2021, provides strict criteria for surrogacy to prevent exploitation and ensure the well-being of the surrogate mother. The key requirements are the following:-
- The surrogate mother must be the close relative of the intending parents.
- A surrogate mother must be married and have at least one biological child.
- A surrogate mother must be between 25 and 30 years old.
- A woman can act as a surrogate only once in her lifetime.
- No financial compensation is allowed for surrogacy, except for medical expenses and insurance coverage.
- The intended parents must provide health insurance coverage for the surrogate mother.
- The surrogate mother must give written, informed consent before undergoing the surrogacy process.
- The woman must undergo a medical and psychological evaluation to determine her fitness for surrogacy.
Surrogacy Eligibility Criteria Table
| Requirement | Details |
|---|---|
| Relationship | Must be a close relative of the intending parents |
| Marital Status | Must be married |
| Children | Must have at least one biological child |
| Age Limit | Between 25 and 30 years old |
| Frequency | Can act as a surrogate only once in lifetime |
| Compensation | Only medical expenses and insurance coverage allowed |
| Consent | Written informed consent is mandatory |
| Evaluation | Medical and psychological fitness required |
Commercialisation Of Surrogacy In India
Commercial surrogacy, or “wombs for rent”, is a growing business in India. Critics have described the popularity of surrogacy arrangements in India as a ‘baby booming business’, ‘womb on hire’, ‘baby firm’, and ‘parenthood by proxy’. Surrogacy has turned a normal biological function of a woman‘s body into a commercial contract. Surrogate services are advertised, surrogates are recruited, and operating agencies make large profits.
The commercialisation of surrogacy raises fears of a black market and baby-selling; breeding farms, turning impoverished women into baby producers; and the possibility of selective breeding at a price. Before commercial surrogacy was banned in 2015, India was a popular surrogacy destination, often termed a ‘baby factory’.
Major Concerns Related To Commercial Surrogacy
- Risk of exploitation of poor women.
- Growth of illegal baby-selling networks.
- Use of women as commercial baby producers.
- Lack of proper regulation and monitoring.
- Possibility of selective breeding practices.
- Huge profits earned by brokers and agencies.
Exploitation Faced By Surrogate Mothers
Premila Vaghela, a poor 30-year-old surrogate mother, died while reportedly waiting for a routine examination at a hospital in Ahmedabad. The news was barely covered by the media – after all, she had completed the task she had been contracted for, and the eight-month-old foetus meant for an American “commissioning” parent survived.
In fact Premila was like many other economically marginalised surrogates, who may suffer or even lose their lives while carrying a child and are quickly forgotten. The highly secretive and largely unregulated baby factories (many of which are dressed up as legitimate IVF clinics) now mushrooming all over India are usually only concerned with the end product, the child.
Dr Manish Banker, from the Pulse Women’s Hospital, is reported to have said that Premila had come for a check-up. “She suddenly had a convulsion and fell on the floor,” he said. “We immediately took her for treatment. Since she was showing signs of distress, we conducted an emergency caesarean section delivery.”
The child, who was born a month premature, was admitted to the intensive care unit. Premila was moved to another hospital, which claims she was in a highly critical condition, having suffered a cardiac arrest. Although there’s no suggestion that this was the case with Premila, sadly, in many cases the surrogate’s life is secondary. It is the baby, for whose birth the hospital is being paid, that is paramount.
Before commercial surrogacy was banned, surrogate mothers were often heavily exploited. Many of them did not receive the full payment that had been promised to them, and brokers frequently intervened in the process, taking advantage of the situation for their own benefit.
Forms Of Exploitation Faced By Surrogate Mothers
- Non-payment or partial payment of promised compensation.
- Health risks during pregnancy and childbirth.
- Lack of legal and medical protection.
- Emotional and psychological trauma.
- Interference by brokers and middlemen.
- Neglect of surrogate mother’s well-being after childbirth.
Law Relating To Surrogacy In India
In the absence of any codified law as the situation exists only in respect of surrogacy arrangements, the ordinary civil law of the land would be applicable in respect of surrogacy. The Indian Council of Medical Research has drafted the Assisted Reproductive Technology Bill, 2008, to regulate and legitimise different forms of reproductive technologies, including commercial surrogacy.
The Law Commission of India in its 228th Report has reasoned as to why surrogacy laws are needed. But such a bill has been criticised by a large number of scholars on the ground that it promotes the interests of the medico-business lobby and does not provide adequate protection to the rights of the surrogate mothers and children.
Draft Assisted Reproductive Technology Bill And Rules, 2010
The Draft Assisted Reproductive Technology Bill and Rules 2010 is the latest draft following the incorporation of additions and modifications to the draft of 2008.
New Indian Medical Visa Regulations, 2012
New Indian Medical Visa Regulations, 2012, provides that only duly married men and women with a subsisting marriage for at least 2 years will be allowed medical visas for surrogacy.
Assisted Reproductive Technology (Regulation) Bill, 2013
According to the Assisted Reproductive Technology (Regulation) Bill, 2013 provisions, no woman less than 21 years of age and over 35 years can act as a surrogate mother.
The bill, for the first time, states conditions for foreign couples seeking to hire a surrogate in India. But it also lacks setting the standards for medical practice and completely ignores the regulation of the third-party agents who play a pivotal role in arranging surrogates, such as surrogacy agents.
Surrogacy (Regulation) Bill, 2016, and Surrogacy (Regulation) Act, 2021
The Surrogacy (Regulation) Bill in 2016, which, following multiple amendments, was passed in 2018 by the Lok Sabha.
The Rajya Sabha created a committee for the discussion of the Surrogacy (Regulation) Bill 2019 with various stakeholders, the conclusion of which led to some more amendments, culminating in its passage into law on December 25, 2021.
It was released along with the Assisted Reproductive Technology (Regulation) Act, 2021, just a week prior. On January 25, 2022, the new Surrogacy (Regulation) Act, 2021, went into force.
Challenges Under The Surrogacy (Regulation) Act, 2021
Some provisions of the Surrogacy (Regulation) Act, 2021, are definitely contradictory to the fundamental rights.
Restrictions On Intending Couples And Women
Section 4 (ii) (a) provides that no surrogacy or surrogacy procedure shall be conducted, undertaken, performed or availed of, except when an intending couple has a medical indication necessitating gestational surrogacy.
Here ‘couple’ as per the definition given under section 2 (h) means the legally married Indian man and woman only, and ‘intending couple’ as per section 2 (r) includes only the couples having medical indications.
This section further provides rights to intending women to avail themselves of the surrogacy procedure only.
The intending women as per the definition given under section 2 (s) include only Indian women who are widows or divorcees between the ages of 35 and 45.
Thus it excludes:
- Unmarried woman
- Single man
- Couple in live-in relationship
- Couples belonging to LGBTQI community
- A person belonging to LGBTQI community
Supreme Court Judgements on Reproductive Rights
The apex court has recognised in cases of:
- Suchitra Shrivastava and Ors vs. Chandigarh Administration (2009)
- Meera Santosh Pal vs. Union of India (2017)
Right to reproductive choices as a part of the right to personal liberties under Article 21 of the Constitution.
Violation Of Article 14 And Article 15
Article 14 of the Constitution provides equality before the law and equal protection before the law. Thus, the abovementioned provisions of the Act are in violation of Article 14 of the Constitution, as it does not provide equality.
Article 15 provides that the State should not discriminate against any person on the basis of religion, race, caste, gender or place of birth.
The above-mentioned provision clearly made discrimination on the basis of gender.
Parenthood is a basic human right. No person shall be deprived of this right on the basis of age, marital status, gender, etc.
Certificate Of Medical Indication And Right To Privacy
Section 4 (iii) (a) (I) of The Surrogacy (Regulation) Act, 2021 mandates a certificate of medical indications in favour of either or both members of the intending couple or intending woman necessitating gestational surrogacy from a district medical board.
It was held in the case of Justice K.S. Puttaswamy & Anr. vs. Union of India that there is a violation of the right to privacy in obtaining and showing the certificate of infertility, and it is also against the moral and ethical point of view of society to make it compulsory to have a certificate of infertility from the district board, and this fundamental right has to be protected.
In the case of Surup Singh Harya Naik vs State of Maharashtra, it was held that the right to medical confidentiality is a fundamental right under Article 21.
Lack Of Compensation To Surrogate Mothers
2021,One of the most debated aspects of the Surrogacy (Regulation) Act, 2021 is the prohibition of any form of monetary compensation to the surrogate mother, apart from medical expenses and insurance coverage.
By denying fair compensation, the Act not only undervalues the surrogate’s contribution but also reinforces patriarchal expectations of female sacrifice.
Key Features Of Surrogacy Laws In India
| Year | Law / Regulation | Main Feature |
|---|---|---|
| 2008 | Assisted Reproductive Technology Bill | Proposed regulation of reproductive technologies and commercial surrogacy |
| 2010 | Draft ART bill and rules. | Included modifications and additions to earlier draft |
| 2012 | Medical Visa Regulations | Restricted surrogacy visas to married couples with 2 years marriage |
| 2013 | ART (Regulation) Bill | Fixed age criteria for surrogate mothers |
| 2021 | Surrogacy (Regulation) Act | Banned commercial surrogacy and allowed altruistic surrogacy only |
Conclusion
Initially, the absence of any legal regulation turned India into a global hub for commercial surrogacy.
The enactment of the Surrogacy (Regulation) Act, 2021, was a significant move in this direction.
By banning commercial surrogacy and allowing only altruistic surrogacy, the act attempts to address the exploitative aspects of the practice.
