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Comparing Surrogacy Laws Of India And South Africa

Surrogacy has also been used unfairly. The main reason it has been abused is " commercial surrogacy," sometimes known as "renting a womb." When a surrogate mother receives compensation for her services, the arrangement is known as commercial surrogacy. In this paper I compared surrogacy laws of India and Surrogacy laws of South Africa from different aspects.

Once there was no conditions and there were no such proper laws and measures in India but afterwords there were strict laws implemented regarding this to protect the interest of the people of India but now commercial surrogacy is banned in the year 2024. In south Africa similarly non-profit surrogacy is legal. So basically in both countries it is allowed with some restrictions and guidelines.

South Africa:

The historical background of women consenting to conceive and bear children for childless couples a practice that dates back to biblical times shaped the origins of surrogacy in South Africa. Surrogacy did not, however, get official recognition or legal processes in South Africa until the 1980s. The Children's Act1, which started to explicitly regulate surrogacy in South Africa in 2007, marked a turning point in the legal situation.

This Act created a structure for surrogacy agreements, which was a major change. The High Court was forced to legalize the surrogacy arrangements between commissioning parents and surrogate mothers as court orders. From the beginning of the surrogacy procedure, this step guaranteed parental rights were protected and made clear. The Act also emphasized the significance of mental health and well-being by introducing standards like psychiatric evaluations for commissioning parents and surrogate moms.

The surrogacy environment in South Africa has been further changed over time by modifications and legal clarifications. Notably, the Act has changed over time to let single people and homosexual couples to become commissioning parents, increasing the surrogacy arrangements' diversity. Notwithstanding these advancements, worries regarding industry surveillance and possible surrogate abuse endure.

India:- The practice of surrogacy has a long history in India, as attested to by historical allusions in books like the Bhagavata Purana, which describe legendary surrogacy cases. But in the late 20th and early 21st centuries, surrogacy became more popular in India, especially with the development of assisted reproductive technology.

India saw a boom in commercial surrogacy, drawing international couples looking for reasonably priced surrogate choices. Because India is less expensive than Western nations, it has become a favorite destination for "fertility tourism" related to surrogacy. However, as surrogacy became more commercialized, worries about exploitation and moral issues surfaced. India made considerable legal adjustments in response to these worries.

A sea change was brought about by the Surrogacy (Regulation) Act of 2021, which outlawed commercial surrogacy and encouraged charitable surrogacy. The purpose of this regulation was to safeguard surrogate mothers' rights and guarantee that surrogacy agreements were motivated by charity rather than profit. Strict eligibility standards, including age and marital status requirements, were established by the Act for intended parents.

It also underlined the significance of morally sound and legally controlled surrogacy procedures and required medical certifications. In order to solve loopholes and issues, India's legislation has undergone many amendments. For example, surrogacy is now only permitted for legally married Indian couples, and it is not permitted for single males or same-sex couples.

Origin And History Of Surrogacy In India:

Although the name "surrogacy" is relatively new, the practice of surrogacy has a long history. Indeed, evidence of surrogacy dates back thousands of years in India. The Bhagavata Purana, which tells the narrative of Kans, Devaki, and Vasudeva, provides proof of the surrogacy practiced throughout the Mahabharata time.

The ruthless ruler Kans of Mathura had his sister Devaki and her husband Vasudeva imprisoned because the heavens had sent warnings that Devaki and Vasudeva's eighth son would destroy Kans. Afterwards, shortly after giving birth, Kans murdered each of the six sons of Devaki by slamming their skulls on the ground. God intervened in the conception of the seventh son in order to preserve its life. They summoned Goddess Yogamaya and asked her to transfer the fetus from Devaki's womb to Rohini's.

Rohini was Vasudeva's other wife, and the two of them resided in the Gokula cowherd community across the Yamuna river with their brother Nanda. As a result, the kid born in one womb was raised in and delivered by another. This may have been the first surrogacy case in India's history.

This incident provides enough proof that sophisticated science and technology existed throughout the Mahabharata era. Even if the use of sophisticated science and technology was cloaked in mythology and religion, it was just the surrogacy business. The evidence of surrogacy in India throughout such a long time is astounding.

Origin and history of surrogacy in South Africa:

There Is a Long History of Surrogacy Fertile women have consented to conceive and bear children for childless women since the time of the Bible, and to give the children over to them when they are born. Since the 1980s, the technique has advanced to such a degree in South Africa that official legal and medical procedures are currently in place to protect commissioning parents as well as surrogate mothers. The first "official" surrogate mother in South Africa was Pat Anthony in 1987. She gave birth to her triplets safely while acting as a surrogate mother for her daughter.

Surrogacy Law in India:

To stop the exploitation of women who could be tricked into commercial surrogacy agreements, the new surrogacy law in India forbids commercial surrogacy. Only altruistic surrogacy is permitted under India's surrogacy law of 2021, which calls for the surrogate mother to have the kid to assist another person or couple without getting any financial reward other than insurance coverage for medical costs. This clause prioritizes the welfare of all parties concerned while ensuring that surrogacy agreements in India continue to be morally righteous and open.

Furthermore, the legislation outlines a few prerequisites that must be fulfilled before a couple or individual chooses to use a surrogate in India, highlighting the significance of ethical and regulated surrogacy procedures in the nation.

The surrogacy law in India - 2021 has established eligibility criteria for intended parents seeking to undertake surrogacy.
  • The prospective pair must fulfill certain age requirements and be legitimately married, according to the legislation.
  • The age range for the male partner must be between 26 and 55 years old, while the age range for the female spouse must be between 23 and 50 years old.
  • The pair also can't have any biological children from a previous marriage.
  • The female partner should be able to substantiate her assertion that she is a medical candidate for surrogacy with official medical papers.
  • It is required that the willing surrogate mother be married and have a minimum of one kid.
  • If a woman is between the ages of 35 and 45 and is married, divorced, or widowed, she may also be considered an intended parent despite not being married. However, she cannot be a surrogate if she is the mother of a kid from a prior marriage.
  • In India, surrogacy agreements are not permitted for single men or same-sex couples.
  • Medical Verification for the Expectant Mother Is Required
  • As per the recently enacted surrogacy legislation in India, couples with specific medical issues, such as repeated IVF failure, unicornuate uterus, miscarriage, or abortion, are permitted to choose surrogacy.

Surrogacy Laws in South Africa:

South African legislation started to regulate surrogacy in 2007. The Children's Act, Act 38 of 20052 governs it. The commissioning parties shall abide by the Act's provisions in order to utilize a surrogate. A signed agreement between the parties and the surrogate mother is required. This agreement must be formalized as a court order (High Court). The arrangement cannot be broken once the kid has been created through artificial fertilization. Both the commissioning parents and the surrogate mother must reside in South Africa in accordance with Sections 292 and 293 of the Act.

The surrogate mother's spouse or partner should consent to her serving as a surrogate if she is married or in a relationship. Psychological assessments of both the commissioning parents and the surrogate mother are required by surrogacy law, and this is one of its most important components. A woman under the age of eighteen may not have her ovaries removed for the purpose of artificial insemination, according to South African surrogacy rules and regulations. As a result, the ideal age range for female donors is 21 to 34 years old.

The process:
There are several issues that must be resolved, and the surrogacy procedure might take several months. Locating a surrogate mother is the first and most crucial step. A surrogate motherhood agreement between the commissioning parents and the surrogate mother must be drafted when a suitable surrogate has been identified.

Typically, these agreements contain provisions pertaining to:
  • The mutual duties of the parties.
  • The declaration of parenthood.
  • Pregnancy care provisions.
  • The commissioning parents' responsibility to pay for all medical fees and other expenditures directly associated with the surrogacy procedure.

The High Court mandates not just criminal background investigations but also psychological and physical evaluations.

International status of surrogacy in context of India:

In accordance with the Surrogacy (Regulation) Act, 2021, surrogacy is only available to married couples for medical purposes for a maximum of 5 years. According to the law, a married Indian "man and woman" are considered a pair. The lady must be between the ages of 23 and 50, and the guy must be between the ages of 26 and 55. The pair ought not to become parents.

Despite the fact that the law permits single women to use surrogacy, they must be between the ages of 35 and 45 and widows or divorcees. Men who are single are not eligible. India banned commercial surrogacy for foreign intended parents on November 4, 2015.

Those commissioned before this date are reviewed on case-by-case situation; however, no new surrogacies will be started. In India, overseas commercial surrogacy was permitted before to 2015. Due to its comparatively low cost, India was a popular location for fertility tourism connected to surrogacy. When factoring in the expense of accommodation, hospital visits, and plane tickets, the total cost was around one-third that of having the surgery done in the UK.

The Supreme Court of India ruled in the case of Balaz v. Union of India that the child born through this technique will be entitled to the citizenship of its gestational carrier. The Indian Council of Medical Research's 2005 rules governed surrogacy.

International status of surrogacy in context of south Africa:

The South African Children's Act of 2005 allowed the surrogate and the "commissioning parents" to have their surrogacy agreement approved by the High Court prior to conception34. This helps avoid confusion and enables the commissioning parents to be acknowledged as legal parents from the beginning of the procedure; however, if the surrogate mother is the child's genetic mother, she has the option to alter her mind up to sixty days after the kid is born.

The law allows homosexual couples and single individuals to become commissioning parents. Nonetheless, agreements must be charitable rather than commercial, no unvalidated agreements will be enforced, and the legislation only protects people who are South African citizens.

In the event that there is just one commissioning parent, that parent needs to share genetics with the kid. If there are two, unless infertility or sex (as in the case of a same-sex relationship) make it physically impossible for them to be genetically related to the kid, they must both be. The parent or parents commissioning the kid must be incapable of giving birth on their own.

The surrogate mother has to have given birth to at least one live child and had at least one pregnancy and successful delivery. The surrogate mother may end the pregnancy at any time, but she must notify and contact the commissioning parents first. If the termination is being made for a non-medical cause, she could also be required to return any reimbursements she got for medical expenses.

Gaps in the Surrogacy (Regulation) ACT, 2021's of India:

The Surrogacy (Regulation) Act, 2021, has been previously cited as a socially beneficial law in India with the potential to safeguard the rights of both surrogate mothers and surrogate children. However, the Act has certain practical issues that make it challenging to execute in the future. There aren't many gaps in the Act either.

The following is a discussion of the Act's issues:

  1. An abandoned kid is defined by the Act as a child who is deemed abandoned by the competent authority following a thorough investigation; nonetheless, there may be instances of abandoned children occurring after surrogacy without the proper official's awareness.
  2. Altruistic surrogacy is the only type of surrogacy allowed by the Act, yet it might be challenging to obtain surrogates on a regular basis.
  3. The Act outlawed commercial surrogacy because of the detrimental consequences it had on the surrogate mothers; nevertheless, it also eliminated the opportunity for low-income women to get money by serving as surrogate mothers.
  4. A lawfully married Indian man and woman are referred to as a pair under the Act. As a result, the Act prohibits live-in couples from using surrogacy to conceive their children.
  5. Once more, the Act only recognizes lawfully wedded Indian men and women as a pair; hence, third-gender or gay couples are not permitted to use surrogacy to conceive.
  6. As defined by the Act, an intended woman is an Indian woman who plans to use surrogacy and is a widow or divorcee between the ages of 35 and 45. As a result, the Act prohibits single women from becoming surrogate mothers, yet guardianship of a single mother is permitted in India. It's also dubious because surrogacy requires a 35�45-year-old minimum to become a mother; why not a 35�45-year-old minimum?
  7. Despite the Act's penalties for sex selection in surrogacy, it is almost impossible to stop in a nation like India where bribery and corruption are pervasive across all governmental levels. One glaring example of this is the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994, which was passed long after female foeticide was eliminated.
  8. The Act's registration of surrogacy clinics is a laudable step, but corruption and bribery again provide them an opportunity to avoid the long reach of the law.

Gaps in laws of South Africa:

  • Parental Rights: The position of parental rights has been a significant legal loophole. At first, the Children's Act didn't include precise instructions on how to protect the intended parents' parental rights. This resulted in situations where, up until a court order was obtained, the surrogate mother was regarded as the biological mother.
  • Court Involvement: The legislation requires the High Court to ratify surrogacy arrangements. All parties are guaranteed to be informed of their rights and duties through this procedure.
  • Foreigners: At first, foreigners were not allowed to sign surrogacy contracts in South Africa. But after a legal challenge, the legislation was changed to permit it in certain circumstances.
  • Regulation and monitoring: According to some opponents, the surrogacy industry lacks monitoring and regulation, which might result in surrogates being exploited.

Surrogacy is now governed via different legal frameworks in South Africa and India. In order to safeguard the rights of surrogate mothers, India's Surrogacy7 Act of 2021 places a strong emphasis on charitable surrogacy and prohibits commercial surrogacy. The requirements, such as age restrictions and marital status, are spelled out in detail. There are legal loopholes, though, such as the restriction on surrogacy to Indian couples who are lawfully married, which keeps live-in couples, those who identify as third gender, and homosexual couples out.

The Act also has difficulties overseeing surrogacy facilities and implementing laws against sex selection. On the other hand, the Children's Act of 2005 in South Africa establishes a legal framework for surrogacy and mandates that surrogacy arrangements have clearance from the High Court. Though there were early issues with foreigners being permitted to participate, this helps establish parental rights from the start of the procedure.

The Act also highlights how structured agreements and judicial participation may safeguard commissioning parents and surrogate mothers. Concerns regarding the surrogacy industry's lack of thorough oversight and regulation, which may allow for exploitation, persist, nonetheless.

Finally, even though both South Africa and India have worked to control surrogacy and safeguard the rights of all individuals involved, there are still significant weaknesses and difficulties in their different legal frameworks. These gaps span from worries about exploitation and supervision in South Africa's system to inclusion challenges in India's legal system. In the future, closing these loopholes and guaranteeing thorough regulation will be essential to protecting the rights and welfare of commissioning parents, surrogate moms, and the surrogate offspring.

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