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Legitimacy Of Surrogacy In India

When money is exchanged for pregnancy, some believe in newborn while others comes. close to organ selling, or even babyselling - Prof. Thomas Frank

Infertility is a medical trim serves to be a huge impediment for the couples after few years of marriage and the same cannot be ignored easily. In a country like India which consist of many traditions and culture that values a woman only when she gives birth to a child and positioned as a mother, meanwhile, her husband's masculinity and sexual potency are proved, and the ancestry continues.

Infertility is seen as a major problem for married couples and family ties for the continuation of their kinship through descendants. The parents reproduce the baby biologically on one hand and a baby through the conventional biological means on the other hand to overcome the problem of infertility and this created a separate medical forum called surrogacy in India. Whereas surrogacy serves as a solution for infertility, on the other hand it also made a way for shady dealings on baby selling are discussed in this paper.

Traditional And Gestational Surrogacy

Surrogacy means the process of carrying and delivering a child to another person. Thus surrogacy is an arrangement in which a surrogate mother a woman, who carries a child for someone else i.e. infertile couple.

There are two different types of surrogacy, namely Traditional Surrogacy and Gestational Surrogacy. In Traditional Surrogacy which is also known as Straight or Direct method whereby the surrogate will be pregnant with her own biological child with either the biological linkage of possibly his spouse or partner, either male or female and next type of surrogacy is termed as Gestational surrogacy also known as the Host method, whereby the surrogate becomes pregnant via embryo transfer with a child for which she is not the biological mother[i]

Surrogacy In India

The boom on the fertility market have footed in India in the name of medical tourism, unexpectedly it also mounting year by year. Since 1978, the Assisted Reproductive Technology (ART) has been used in 2,00,000 clinics (approx.) across the country to perform Artificial Insemination, In vitro fertilization (IVF) and Surrogacy.

The world's first IVF boy, Louise Joy Brown born in Great Britain on July 25, 1978 and in India's first IVF baby was born in Kolkata on October 3, 1978 namely Kanupriya alias Durga. Thereafter, the field of assisted reproductive technology (ART) has developed rapidly in India as commercial surrogacy were an Indian women were paid around Rs 4,00,000 i.e.(US $5,628-10,885) per child birth[ii]

Transnational Eyes On India

The cost of surrogacy process is cheaper and even there is no legislation for regulating the surrogacy in India has made a clear way for foreigners and outsiders to get the baby through surrogacy agencies in and around the country.

Hence, the wealthy indenting couples or single parents procure these types of surrogacy process for attaining the baby under an agreement between the agency, intending couples and surrogate mother.

There are several agencies were performing this process using (ART) with the help of Artificial Insemination Clinics in India. As there is no legal framework for commercial surrogacy, it made a way for exploitation of the medical forum and turns out destitute women to be a victims in benefiting the strangers because of their poverty.

Exploiting Destitute Women

Repeated Surrogacy exploits women mentally and physically. Women in desperate situations in order to make extra income and protect their family who has no other means of earning ends up with opting for surrogacy. The majority of women undergoing surrogacy are illiterate and are not being educated on the process and steps of surrogacy. Further, in the Telangana fertility center, more than 50 surrogate mothers were found confined in buildings adjacent to their center.

They were being held until the birth of the child. This restricts their movement and even though they were provided with food and shelter, confining those (about 50 women) in a room is a way of exploiting their mental and physical health[iii].

Legal Background The Supreme Court (Retired) Justice Puttaswamy, made an observation that the constitutional right of women is, their reproductive choices under Article 21 of the constitution of India which restricts the surrogacy of women when they do it for the desperate need of money. The right of women includes her privacy, dignity, and bodily integrity[iv].

In 2005, the government approved the 2002 draft of the National Guidelines for Accreditation, Supervision, and Regulation of ART Clinics in India and the same were not presented in parliament.

On August 2009, the 228th law commission has been constituted for making analysis on surrogacy practices and recommended many objects to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial4 and procedures for surrogacy, and steps to control surrogacy arrangements.

Proposed Legislation

In pursuance to the law commission report and National Guidelines for Accreditation, Supervision and Regulation of ART Clinics, the NDA government drafted the Surrogacy Bill 2016, and the same was lapsed owing to the adjournment sine die in the parliament. Then, the bill was reintroduced as in Lok Sabha and successfully passed. Currently the bill is required to be passed by the Rajya Sabha, the upper house of the Indian parliament and presidential assent.

Special Provisions In The Surrogacy Bill 2019

Many studies say more than 50% of surrogacy arrangements are made for the benefit of outsiders on consideration of money in return. Section 3 (e) of the Surrogacy Bill 2019 says the surrogate mother should be a close relative of the intending couple and should be an ever-married woman having a child of her own[v].

The clinics which are registered under the act only can perform the surrogacy arrangements and the Indian indenting couples & surrogate will have to undergo infertility test for surrogacy. Only the infertile couples can be permitted to proceed with IVF. The act imposes punishment for the clinics which forces surrogate mothers to accept the same. The board has numerous powers to punish under the act, when any petitions filed before the authorities by the victims of surrogacy.

Issues To Be Addressed
Surrogate mothers feel such a ban would hurt them more. Since most of them are unemployed and desperate. Surrogate mothers are considered as a mother by law and nature. She is someone who carries the baby for 9 months, she creates a life bond with her child even if the child belonged to others. Several questions may arise to the person who reads, like what if she wants to keep the baby after birth.

Then, what may be the remedy for a surrogate mother who wants to revoke or discharge the contract of surrogacy with the inclusion of all her dignity and bodily integrity? Further government can make awareness for adopting the child rather than making a commercial dealing through surrogacy.

A woman died cause of pregnancy-related complication at AIIMS in Delhi. An investigation exposed, series of surrogacy undergone by her which leads to illnesses, included tuberculosis, hydrocephalus, and depression.

The surrogacy death in the capital city has exposed that there is only a blanket ban on and criminalizing commercial surrogacy which sparked the government to reintroduce the Bill and the same is passed in the Lok Sabha and sleeping in Rajya Sabha for more than 8 months.

Hence, before the death of another destitute woman because of commercial surrogacy, the government and upper house of parliament have a huge responsibility to consider both sides of the coin to make effective legislation by protecting the life of surrogate mothers and fulfilling the parental need by making proper legislation for surrogacy.

  1. Black's Law Dictionary 10th ed. (West Group, 2014), Bryan A. Garner, editor
  2. Baby Manji Yamada Vs. Union of India & Another (2008) 13 SCC 518
  4. Justice Puttaswamy (Retd) Vs. Union of India in Writ Petition (CIVIL) NO. 494 OF 2012) citation (2017)10 SCC1
  5. Section 3 (e) the surrogate mother should be a close relative of the intending couple and should be an ever married woman having a child of her own and between the age of 25-35 years, The Surrogacy Bill 2019

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