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Surrogacy Contracts: The Legal Regime In India

Every woman values the experience of maternity because nature has endowed her with the ability to bear children. The natural right of an individual is the opportunity to procreate. It is a worldwide phenomenon that all couples desire a child. Parenthood is a life-altering and unparallelly rewarding experience. The suffering associated with infertility is overwhelming .Significant advances have been made in infertility treatment. Every civilization in the world has prioritized the institution of the family.

When two people marry and establish a marital union, a new family is formed, and that family is complete when children are born. Parents have valued their children as a source of pleasure and a necessity for the continuation of the family line since the beginning of time. According to psychologists, having a child can help troubled marriages endure over time by strengthening the bond between partners.

However, a substantial portion of the population is unable to produce due to a variety of factors. The majority of companions, according to the investigation, have these problems. The absence of a child is stigmatized within the family. As a consequence of infertility, the majority of failed weddings were attributed to infertility. Infertility, which is sometimes referred to as the inability to generate or conceive a child, is a significant problem. According to a WHO report, infertility rates range from 10 to 15 percent worldwide, including in India.

The Concept And History Of Surrogacy:

The practice of using one woman's womb to produce a child for another woman is known as surrogacy, which has progressed to a higher level of generative science. Surrogacy is the most efficient method for overcoming biological and social infertility. Surrogacy is an option for couples who cannot conceive naturally or through in vitro fertilization.

Surrogacy has become an increasingly popular option for those who desire to have a child with a biological connection to them. Globally, the concept of surrogacy is now widely acknowledged. Surrogate birth is viewed as a blessing by infertile couples because it offers them a revolutionary opportunity to become parents.

Kinds Of The Surrogacy

There are three types of surrogacy. i) required/gestational surrogacy ii) unlimited surrogacy iii) genetic surrogacy. In genetic or partial surrogacy, the male partner of the child-seeking couple fertilizes the female's embryo through artificial insemination or, less frequently, natural sexual activity.

The commissioning mother is the social and legal mother, while the surrogate mother is the genetic mother. Traditional surrogacy and partial surrogacy are alternative terms for this practice .When the commissioning father's sperm or a donor's sperm are used to fertilize the surrogate's egg, total surrogacy occurs.

In gestational surrogacy, the commissioning couple's egg and sperm (or those of anonymous donors) are used to create an embryo, which is then implanted in the surrogate or carrying mother .In this instance, the surrogate mother is genetically unrelated to the infant. Full Surrogacy is an alternative term for this type of surrogacy.

On the basis of the quantity of compensation received, surrogacy can be divided into two categories. Surrogacy for altruistic purposes precedes commercial surrogacy. In altruistic surrogacy, the commissioning parent may pay the surrogate mother's expenses and costs associated with carrying an embryo to term, but the surrogate mother is not compensated monetarily. The majority of cases involving this type of surrogacy involve relatives or close acquaintances. The traditional justification for why no monetary compensation is required in this type of surrogacy is that the decision to serve as a surrogate is motivated by altruism and not greed. Even though commercial surrogacy frequently employs the rhetoric of giving, the surrogate receives monetary compensation in addition to reimbursement for pregnancy-related expenses. This is how the surrogate is compensated for her gestational services.

Surrogacy Agreement Definition And Meaning:

Although it is referenced in these case laws, there is no definition for it in the judgment. A surrogacy agreement is defined as "a contract between the person(s) availing of assisted reproductive technology and the surrogate mother" in Section 2(cc) of the ART Bill 2010.To put it simply, a surrogacy agreement is "a thorough document that lays the groundwork for governing the relationship between the commissioning couple and the surrogate including rights, liabilities, responsibilities details about the need for surrogacy, purpose and situation of both parties, the terms under which the surrogate has agreed, compensation, payment schedule, etc."

The Commercial Surrogacy Agreements And Their Inconsistency With The Essentials Of A Legal Contract:

The legitimacy of the surrogacy pact has been called into question due to its failure to meet the standards for a legally enforceable contract established in the Indian Pact Act. The ART Bill characterizes a surrogacy arrangement as a contract, despite the fact that the surrogacy agreement fails to meet the basic legal elements for an agreement to be considered a contract, most notably the free consent of parties as needed by the Indian Contract Act.

Primarily, the surrogate mother is forced to offer her free, informed consent, notably through economic compulsion, and she only agrees to be a surrogate mother in exchange for remuneration. These ladies are unable to understand the provisions of the agreement, which involve a variety of legal and medical language, as well as the repercussions due to their own illiteracy and poor socioeconomic standing. The surrogate mother will only sign the contract if she is desperate for money. According to this, the agreement's essential legal grounding is flawed since it lacks free consent and assent achieved by economic pressure or monetary inducement, thus rejecting consent.

The first and most essential suggestion is to alter the term "commercial" to "compensated surrogacy arrangement" as far as possible with the law and policymakers in light of the legal issues surrounding commercialization and financialization of surrogacy contracts. The term "compensated surrogacy" refers to surrogacy agreements in which the surrogate mother is compensated and her health is restored for carrying the pregnancy.

As a result, it differs from commercial surrogacy arrangements. Many international legal systems, like the United Kingdom, have legalized paid surrogacy. Australia, Canada, New South Wales, and many other countries are included. According to the legislation, only the payment of "reasonable expenses" is authorized in all of these countries.In various UK decisions, such as Re the Matter, the courts have only authorized and upheld the aforementioned reasonable amount. As a result, compensated surrogacy agreements may be drafted, with the primary goal of paying for similarly sanctioned expenses or reimbursements.

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