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Relevance Of The Surrogacy Regulation Act, 2021

In the present world scenario infertility comes out as one of the major problems and this affects the heath of majority of people. According to WHO the data suggest that between 48 million couples and 186 million individuals have infertility globally[1].

Herein with this problem there has also been an advancement with respect to Assisted Reproductive Techniques (ART). Surrogacy comes as an alternative option. Surrogacy is an arrangement wherein a surrogate mother bears and delivers the child for intending couples or intending individuals. In India we have The Surrogacy Regulation Act,2021[2] that deals with the laws related to Surrogacy in India[3].

This paper will deal with the concept of surrogacy, regulation act and the short comings of the act along with effective remedies.

Introduction to Surrogacy

The Surrogacy Regulation Act,2021 defines surrogacy[4] as a process where a woman bears and gives a birth to a child with an intention to give the child to the intending couples after birth. Similarly, the act recognizes two types of surrogacies:
  1. Commercial Surrogacy[5]
  2. Altruistic Surrogacy[6]

Commercial Surrogacy is a type of surrogacy where the surrogate mother[7] carries the child in her womb and delivers the child to the intending couple[8] in return of monetary benefits. The act also defines Commercial surrogacy as commercialization of the process including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward.

Benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother. Although, the same act also bans the practice of commercial surrogacy in India[9].

Altruistic Surrogacy is another type which has been explicitly defined under the act as a procedure in which no charges, expenses, fees, remuneration or monetary incentive of any nature is given to t9he surrogate mother. Although, the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for her are to be given to the surrogate mother or her dependents or her representative. The Indian act regulating surrogacy allows only this form of surrogacy[10].

Further, in this form of surrogacy also there has to other conditions as well such as the surrogate mother shall be married and should have children of her own.

The Need for Surrogacy Regulation Act

Surrogacy as a procedure comes as a blessing to those parents who cannot have a child. Through this procedure childless parents get an opportunity to have their own child by using a womb of another woman. Although, the purpose of this procedure is a scientific advancement but there was a need to regulate this as well as it was seen that how people are exploiting these procedures.

This exploitation was first addressed in the case of Baby Manji Yamada v. Union of India[11]. In this case it was argued that there are no laws governing the procedure of surrogacy in India due to which there are many irregularities are being committed. As it was also seen that how in the name of surrogacy a moneymaking racket is being perpetuated. Henceforth, it was realized that the Union of India should enforce stringent laws relating to surrogacy.

A similar conflict was further observed in many cases dealing with the citizenship of the children born out of surrogacy was also raised. Conflicts regarding the rights of surrogate mother with respect to Maternity Benefits Act, 1961[12] any other acts. The question was raised whether there will a discrimination while dealing with a genetic mother or a surrogate mother[13].

Due to these rising questions and constant unrest between the principles regulating surrogacy with respect to exploitation of the intending couples, the surrogate mother and most importantly the child who is being born. Therefore, a need for legislations was realized and The Surrogacy Regulation Act,2021 came into force.

Shortcomings of The Surrogacy Regulation Act, 2021

Although, the act was formed with an objective of securing the rights of children born out of surrogacy and the rights of a surrogate mother but the act could not address the problem to its complete essence leaving certain loopholes and ultimately resulting in questioning of the act.

To start with the regulation act completely bans the practice of Commercial Surrogacy and permits the practice of Altruistic Surrogacy[14]. It is argued that such ban is imposed to protect the rights of the surrogate mother and prohibit the commercialization of the child. It was deemed that through commercial surrogacy the intending couple intends to put a value upon the child in the form of fees that they pay to the surrogate mother.

Further, it was also addressed that through the practice of commercial surrogacy the chances of child being born is also prone to other offences against him such as child trafficking. If looked upon the other perspective it was also seen that how often couples violate the rights of the surrogate mother by not giving her the complete payment.

Despite of existence of these issues putting a complete ban upon Commercial Surrogacy was not an ideal solution that the society needed. As this gives rise to look into the loopholes of the act as it is a misconception that banning this form of surrogacy would help in prevention of the crime instead this ban is going to increase the chances of crime against the child and surrogate mother. As now Commercial Surrogacy would be practiced but in an unlawful manner and would lead towards the rise in corruption and unfair means in the procedure of surrogacy.

The second, shortcoming of the act which is looked upon is that how marriage is an essential criterion under the act[15]. As the act clearly specifies that how only a married woman who has a child of her own is eligible as a surrogate mother. This clause of the act also indicates over the promotion of the society's perspective of not encouraging or improving the conditions of a single mother. As in the act it is very clear that a woman who may be connected to the intending couple and may be ready to act as their surrogate but still, she won't qualify for the certificate if she is unmarried and doesn't have a child of her own.

Presence of this clause also lessens the chances of a couple to view surrogacy as an alternative measure to have a child. As viewing the social conditions of our society, it is nearly impossible to find a woman who is connected to the intending couple genetically and herself is married along with having a child of her own.

The basic argument which deals with the advent of the act was the protection and welfare of the children involved and of the surrogate mother but with the sections of the act in can be viewed that the emphasis of the objective fades away as the act nowhere protects the rights of children or the surrogate mother but only lays provisions for surrogacy clinic[16] or the certification[17].

Not only this but the way the act deals with the position of a woman as a surrogate mother or even while talking about her rights it depicts the position of a woman in a disrespectful manner as the act believes that the surrogate mother is only at the losing end and she needs a protection the form of her husband indicating that she is not sensible enough to make her own decisions. Although the act lays that the decision should be of the surrogate mother only with a free consent but the fact can't be avoided that in Indian society a woman doesn't have complete independence with respect to make her own decisions.

Due to this change in nature of the act from child and surrogate mother to the clinics and certificates the importance and impact of the act which was aimed to achieve is now blurred. As it is also argued that the provisions of the act don't come out as imposing but more as regulatory in nature. Which indicated towards the inefficiency of the legislation.

Corrective Measures with Respect to the Act
The act has several shortcomings attached to it but still it is one of the much-needed legislation in the modern-day society. moving forwards are the certain suggestive measure that could be added in the existing act to increase its efficiency and make the act more relevant in today's scenario. Some of these measures are as follows-

The act should uplift the complete ban over the practice of commercial surrogacy and this conception that it leads to commercialization of a child should be changed. As it should be viewed that this alternative option is two-fold where a childless gets an opportunity to have a child and a woman who might be in need of money can earn it. Also, if commercial surrogacy is made legal then laws with respect to the nature of the contract can be drawn.

Having such contract dealing with commercial surrogacy would blur out the chances of corruption and unfair means that would ultimately come out as a protection to the surrogate mother, the intending couple as well as the child born out of the surrogacy.

It is a known fact that putting a complete ban on any practice is not an ideal way to control a practice but if we regulate it the chances of exploitation are considerably less.
  • The act should not put a mandate upon the condition that the woman should be married and have a child of her own. As we as law makers should not support the notions of the society with respect to the stigmas. As having such condition also says a lot about society's perspective for single mothers or even women carrying babies without being married.
Also, marriage and having a baby can't be a condition to determine whether the surrogate mother is capable to take care of the baby.

Instead of the conditions in terms of marriage and having their own baby the conditions should specifically deal with the mental and physical health and taking due consideration in the environment the mother will be living in.
  • Moving forward one of the other improvements that can be added to the existing act is that the act should focus more on sections that specifically deals with the protection as well as the rights of the parties involved in the procedure of surrogacy including the child. Through this suggestive measure the synopsis is not only to talk about the duties and liabilities of the surrogacy clinics but also of the individuals involved should be more stressed upon.
Having this change in spectrum of the provisions would instantly create trust of people within the procedure and the point of strict adherence should also be taken seriously to establish that these laws are not merely in the form of regulations but are imposing on the parties and at last the security and welfare of the child is nowhere compromised.

Henceforth, these are some of the corrective measures that could lead the act in achieving the vision with which thew act came into existence.

Conclusion
Surrogacy is an alternative measure that acts as a ray of hope of many childless parents and gives them an opportunity to have a child of their own. Although, socialists often argue that despite of adoption people look upon surrogacy as a measure to have a child because in India the procedure for adoption is also a lengthy one but again the current legislative policies make this option far away from achievement.

Due to this far-fetched goal of having child people often choose illegal or unfair means to fulfill their desires which leads to an increase in the crime rate as well as causing exploitation to the innocents. Talking about surrogacy it has to viewed with a lens of acceptance as a reality of today's society which can't be neglected or looked upon.

Therefore, understanding this urge of society a legislation in the form of The Surrogacy Regulation Act,2021 came into existence but the criticism of the act was that the approach adopted by the law-makers was very narrow and was not enough to cater the solution towards the problem. Nowhere the need of act should be compromised but it has to ensured that it is not discriminatory and caters all the sections of the society and protecting the best interest of all the parties involved in the3 procedure including the unborn child.

Henceforth, through this paper the author wants to draw attention towards certain loopholes of the act that may act as a roadblock to the development of the society and cause corruption. The author also aims to provide certain corrective measures that encourage a step towards achieving the objective aimed at.

End-Notes:
  1. World Health Organisation, Infertility, https://www.who.int (last visited on Oct.18, 2022).
  2. Surrogacy Regulation Act,2021, No.47, Acts of Parliament, 2021 (India).
  3. National Library Of Medicine, Surrogacy: Ethical and Legal Issues, https://www.ncbi.nlm.nih.gov (last visited on Oct.18, 2022).
  4. Surrogacy Regulation Act,2021, S.2(1) (zd), No.47, Acts of Parliament, 2021 (India).
  5. Surrogacy Regulation Act,2021, S.2(1) (g) No.47, Acts of Parliament, 2021 (India).
  6. Surrogacy Regulation Act,2021, S.2(1) (b) No.47, Acts of Parliament, 2021 (India).
  7. Surrogacy Regulation Act,2021, S.2(1) (zg), No.47, Acts of Parliament, 2021 (India).
  8. Surrogacy Regulation Act,2021, S.2(1) (r)No.47, Acts of Parliament, 2021 (India).
  9. supra note 5.
  10. supra note 6.
  11. Baby Manji Yamada v. Union of India, 2008 13 SCC 518.
  12. Maternity Benefit Act, 1961, No.53, Acts of Parliament,1961 (India).
  13. P. Geetha v. The Kerala Livestock Development Board Ltd., 2015 SCC Online Ker 71.
  14. Surrogacy Regulation Act,2021, S.3(ii), No.47, Acts of Parliament, 2021 (India).
  15. Surrogacy Regulation Act,2021, S.4(iii) (b) (I)No.47, Acts of Parliament, 2021 (India).
  16. Surrogacy Regulation Act,2021, S.2(1) (ze), No.47, Acts of Parliament, 2021 (India).
  17. Surrogacy Regulation Act,2021, No.47, Acts of Parliament, 2021 (India).

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