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Legal And Moral Implications Of Surrogacy In India

Every couple wants to experience what it's like to be parents, but for some couples, infertility prevents them from realising this desire. Couples can now feel the breath of their own blood thanks to the development of in-vitro fertilisation and other medical and technological advances.

The process of surrogacy is a godsend for India. Many infertile couples from over the world have been drawn to India by surrogacy, and there are many women who are willing to carry another person's kid here. The surrogacy capital of the world is India. Traditional surrogacy existed even before the invention of IVF.

India initially granted legal recognition to surrogacy in 2002. However, there is no legislation governing surrogacy in India. The Surrogacy Amendment Bill, 2019, was just approved by the Lok Sabha and is now on the Rajya Sabha's desk for their consideration. The legislation prohibited commercial surrogacy and exclusively addressed altruistic surrogacy (i.e. unpaid surrogacy).

Additionally, India forbids foreign infertile couples from using a surrogate to produce a child. The moral and legal ramifications of surrogacy are more likely to be covered in this article. The Surrogacy Bill of 2019 has to be modified, and I've added my ideas and some of those revisions in the final paragraph.

In 2002, infertility among married couples is a significant issue that has an impact on both their social and marital lives. Such infertile couples now have access to assisted reproduction technology. They had had two choices up until recently: either adopt a child or stay childless. Infertile couples today have the opportunity of choosing from a variety of choices, including artificial insemination, in-vitro fertilisation, and surrogacy, thanks to the development of modern reproductive technology.

Therefore, a number of reproductive methods that do not entail sexual activity can be used to create human beings. The most divisive of these new technologies is probably surrogacy.

Woman not only carries the guy's child in her womb but also gives the child to the man and his wife to raise as their own child after the child is born. This procedure involves combining the egg and sperm in a culture dish, allowing the egg to become fertilised, and then implanting the resulting embryo into the woman's uterus.

A scientific expansion of the capacity for natural reproduction is surrogate parenting. Young couples are finding surrogacy to be a desirable alternative to adoption as a way to avoid the challenges of adoption and lower the high infertility rates. Nevertheless, over the past 15 years, the practise of surrogacy has gained acceptance as a desirable reproductive option for infertile couples who want to have at least one biological child.

Surrogacy has achieved widespread acceptance throughout the world, but especially in India, thanks to its many advantages over adoption and other reproductive procedures. Surrogacy is now a feasible alternative method of conception for infertile couples because to advancements in techniques like artificial insemination and in-vitro fertilisation.

Surrogacy: Meaning And Definition

For those who are unable or prefer not to procreate naturally, surrogacy is a crucial form of assisted human reproduction. One of the most dramatic new reproductive technologies is surrogacy, which involves a woman agreeing to undergo assisted conception, carry the resulting foetus, and then give up all parental rights to the kid after they are born.

The process of having a woman (referred to as a surrogate) conceive a child for another couple, carry the child to term, and then transfer her parental rights to the couple is known as surrogacy.

The word "surrogate" comes from the Latin word "surrogatus," which means "a substitute," or "a person designated to act on behalf of another." Consequently, a surrogate mother is a woman who carries a child for another woman using either her own ovum or the implantation of a fertilised egg from a different woman in her womb.

Black's Law Dictionary defines surrogacy as an―agreement wherein a woman agrees to be artificially inseminated with the semen of another woman's husband. She agrees to conceive a child, carry the child to term and after the birth, assign her parental rights to the biological father and his wife.

Furthermore, surrogacy is described by the New South Wales Law Reform Commission as... a contract in which a woman consents to become pregnant and carrying a child for the benefit of another person or people, to whom she will provide custody of the kid at or soon after delivery. Consequently, a surrogate is a person chosen to perform an action on behalf of another.

When employed as a verb, the word "mother" also means to give birth. Accordingly, a surrogate mother is a woman who has been chosen to bear a child to term and then deliver it to the biological father and his wife. Alternatively, a surrogate mother is a woman who has undergone artificial insemination. However, the phrase also refers to the process of fertilising an ovum in a test tube or another woman's womb, then transferring the embryo into the surrogate's womb to bring the child to term.

So, carrying a child for someone else while intending to give the kid back after birth, either voluntarily or in exchange for payment, is the practise known as surrogacy. Different ways can be taken to bear a child. If a woman is unable to carry a child for herself, she can hire another woman to do it. Such a lady is referred to as the "Commissioning Mother" and the "Carrying Mother" is the one who agrees to carry the pregnancy for the commissioning mother. The commissioning mother is also referred to as the "Genetic Mother" because she may supply the egg. The commissioning mother's spouse, or in some circumstances, another person, is the genetic father.

A child who is genetically related to at least one of the parents of a childless marriage can be obtained through surrogacy, however it should be reminded that this is not a cure for the historical problem of infertility. Any of the following groups of people, including married, fertile couples, infertile couples, singles, gays, lesbians, widower, divorced, and post-menopausal women, can use this technology. Although the practise of using a surrogate to have a biological child has increased in popularity and acceptance over the past few years, it should be recalled that this approach predates the modern era and was in use even in ancient times.

Types Of Surrogacy

The subject of surrogacy is seen as being extremely delicate and emotional, with implications that extend to all individuals involved. Due to the sensitive nature of surrogacy, it is crucial that both parties feel at ease and secure with one another for the procedure to be successful. In a surrogacy, a variety of arrangements are conceivable based on the convenience and fitness of the parties.

Traditional Surrogacy:
As the term implies, traditional surrogacy involves either a natural or artificial infusion of surrogate moms. The newborn can inherit genetic traits from the surrogate mother using this technique. The intended father's (donor's) sperm is implanted within the woman's body along with the surrogate mother's eggs in the traditional type. As a result, the child delivered as a result of such a procedure is the biological child of the surrogate mother. Prior to the recognition of the In-Vitro Fertilization (IVF) procedure, traditional surrogacy was practised.

Gestational Surrogacy:
This is the current technique most frequently used today. In this procedure, the intended parents' egg and sperm are removed, combined in a lab, and formed into a zygote, which is then implanted into the surrogate mother's womb using IVF. Contrary to traditional surrogacy, in this case the surrogate mother is not the child's biological mother. The intended parents' genetic traits are present in the child. Pre-implantation genetic diagnosis (PGD), which is not available in the conventional kind, is also carried out to ensure the health of the kid and is capable of detecting any form of ailment that a child may develop in the future.

The majority of surrogacies are classified as commercial or paid surrogacies. It entails paying a surrogate mother's expenses for carrying a kid for nine months before giving birth. These are accessible to wealthy, childless couples. The couples cover all medical and other costs associated with the surrogacy. Surrogate moms receive payment for the services they provide. In the hopes of having a child, intended couples sign contracts that include payments for expenditures. To put it simply, wanted couples become parents after paying a set sum of money.

Altruistic or unpaid surrogacy: The services provided by surrogate mothers are not compensated financially. They act in this way for both the good of society and the fulfilment of childless parents. She solely receives compensation for medical and pregnancy-related costs. Usually, they are carried out by someone who has a relationship with the intended parents, either as a friend or a relative. The surrogate mothers help out here so that the childless woman can at least once know what it's like to be a mother.

Issues Related To Surrogacy

Even so, the purpose of surrogacy is to provide infertile couples the sensation of fatherhood while also providing financial support to the surrogate mother, who must struggle every day to make ends meet. However, because there isn't enough surrogacy legislation, only the middlemen make money, and intended parents and surrogate moms are in a sense being taken advantage of. Commercial surrogacy raises various ethical and legal concerns. The most recent Surrogacy Bill of 2019 forbade commercial surrogacy while allowing charitable surrogacy.

Commercial surrogacy was outlawed primarily to stop the exploitation of women,the sale and purchase of infants, and the unlawful trade in human embryos. The requirement that a surrogate mother must be a close relative of an infertile couple leaves room for interpretation, although the word "near related" is not used with sufficient precision.

The parents must wait five years, obtain a medical certificate from a doctor, and complete a number of legal requirements, all of which are challenging and time-consuming in and of themselves. The fact that married couples cannot use surrogacy is also quite caustic. This discriminates against cohabiting couples who are not married in a certain way because marriage is a need for having children.

Thus, cohabiting couples are unable to experience motherhood without being hitched. Finding a close relative who is willing to carry a pregnancy for the intended partners at no cost is actually very tough. The situation becomes more complicated if the woman (a close relative) works because she would then have to find time to carry the pregnancy for the intended couple as she does not have time for her own children.

 huge concern about what society will think of her is drawn in between these two points. The main problem is that this kind of behaviour is never accepted by society or by families. Because there is no confidentiality, the intended parents and surrogate mother are both blamed after everyone in the family and society learns about the conduct.

The next major issue that came up is the mother's relationship to her child. Any mother will find it very challenging to keep her child away from her due to the emotional bond that develops between the mother and child throughout pregnancy. Making surrogacy agreements with women in their family by intended parents could possibly result in genetic abnormalities in the child. It shows that even in the benevolent surrogacy, exploitation can occur.

Surrogacy contracts are not adequately covered by any laws that have been enacted. In the perspective of society, surrogacy ethically diminishes the status of women because, at its core, it involves a woman carrying a pregnancy for the benefit of another couple who are unable to conceive. After learning that he or she is not the commissioning mother's biological child, there is a chance that the child will experience emotional difficulties.

Finally, one would like to draw the conclusion that India has greater surrogacy rates. Ironically, there are many orphan children in India, yet millions of them are denied a home and a safe environment because of the desire to have a "own child." Due to the strict rules and restrictions laid out by the 1956 Hindu Adoption and Maintenance Act, even those couples who wish to adopt a child would find it challenging.

Additionally, this adoption rule forbids non-Hindus from adopting a Hindu child. Such couples' only remaining option is to use IVF. Further, the practise had been greatly abused due to the lack of adequate surrogacy regulations.

Even the newly enacted Lok Sabha Amendment Bill of 2019 supports only altruistic surrogacies, which include a number of loopholes and wipe away the hope of earning for those ladies who are economically vulnerable and have no other source of income. The rights of the kid and surrogate mother are similarly insecure. There are other other gaps that must be filled. Before being delivered to the President, for his signature, the Surrogacy Bill of 2019 needs to undergo more revisions.

The statute states that ART clinics shall be established, but it is not specified in the legislation what standards must be met for maintaining hygienic conditions for the surrogate mother and her safe delivery at such clinics (which must be specified). To the advantage of commissioning parents and surrogate mothers, commercial surrogacy should be authorised with some restrictions placed on it.

Making it entirely illegal for foreign infertile couples to conceive a child will undoubtedly not be beneficial; as a result, it should be made legal for foreign infertile couples to conceive a child in India through surrogacy with the appropriate authorities and regulations in place, in order to eliminate any potential negative effects of commercial surrogacy. This can contribute more to the growth of medical tourism in India.

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