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Legal and Moral Implications of Surrogacy in India

Experiencing the feeling of parenthood is a dream of every couple, but due to infertility, this remains a dream for some couples. With the advancement of technology and medical sciences, In- Vitro Fertilization introduced made it possible that couples could feel the breath of their own blood.

Surrogacy process is a blessing for India. Surrogacy had invited large number infertile couples all over the world to India numerous women can be found here who are ready to become surrogate for another's child. India is known as the hub of surrogacy. Even before introduction of IVF, traditional surrogacy was in practice.

In 2002, India for the first time, had legally recognized the surrogacy. But, yet, India does not have any legislation to regulate the surrogacy. Currently, Lok Sabha had passed the Surrogacy Amendment Bill, 2019 and it is there on the table of Rajya Sabha for their approval. The bill had made commercial surrogacy illegal and focused only on altruistic surrogacy (i.e. unpaid surrogacy).

Moreover, foreign infertile couples are banned to have a child through surrogacy process in India. Surrogacy is more likely to have moral and legal implications which are discussed in article. Further, in the last, I have concluded the article with my opinions and certain modifications which are required in the Surrogacy Bill of 2019.

Introduction
The joy of becoming a mother figure is greater than all the pleasures of the world. It is the most expensive happiness which could be enjoyed by a woman after patience of 9 months and suffering from labour pain. But becoming mother is not in everyone's destiny. Nature does not allow certain woman to become pregnant (because of problem in their reproductive system). [1]Approximately, 80 million couples are imprecated with infertility. 'Infertility', in terms of surrogacy, is basically inability of woman or couples to reproduce.

For them, the new process was introduced which was named as Surrogacy. In Surrogacy, a woman is contracted to carry pregnancy for another married couples. India is deemed to be the hub of Surrogacy as lots of foreign couple visits India for the same purpose. This makes India famous for fertility tourism too. In India, commercial surrogacy is legalized in 2000. In surrogacy, a woman is hired, to carry pregnancy and deliver child for another couple (who are not able to reproduce), in return of money.

Surrogacy is an Alternative Reproductive Technique (ART) introduced, is the last solution for infertile couples. ART is a gift of human advancement and technologies in the field of medical sciences. In India, surrogacy is cheaper than rest of the world i.e almost 10- 12 lakhs which is bearable by any foreign couple. The first baby through Gestational Surrogacy is reported to be born in Chennai.

But after on amendments, in December 2018, made commercial surrogacy legalized only for India infertile couples who have been married for at least 5 years and is still unable to bear a child. This means that it is illegal if foreign couples contracted for surrogacy in India. Besides India, Surrogacy is legal in USA (California), Russia, and Ukraine which facilitates the couples who desire to become parents, but their native country does not allow surrogacy or if, they are unable to find a woman who is ready to become surrogate mother, to abroad (in these countries) and avail the facility. Whereas, it is illegal in England to indulge in surrogacy. Surrogacy has not been yet recognized in Sweden, Germany, Norway and Italy.

Surrogacy has a wider role to play in the life of married couples who have been in sexual relations for 5 or more than 5 years but still unable to bear a child of their own. Surrogacy is a luring process for these types of couples. It had opened up for homosexual couples also to gain the parenting experience. But surrogacy and birth of surrogate child is a complex issue both from the moral and legal perspectives.

There have been certain medical complexes and health issues for surrogate mothers. As, financially weaker women mostly indulge in surrogate practices, thus, often leading to abuse of women and advertising of child bearing. To avoid this legal complication and ensure the health of women, legislations have been formulated but still there are certain areas which remained out the already existing legislations which need to be sorted out.

Meaning of Surrogacy and its types

In simple terms, Surrogacy is process in which a woman gave birth to a child and handed it to another couple. 'Surrogacy' is an arrangement where an agreement is made with a woman to bear a child for 9 months and then handover it to another married couple. The woman who bears the child is known as surrogate mother and the child born out through this arrangement is known as surrogate child. The women are indulged in the act of surrogacy because of money. It is a good business which earns a lot of money.

Surrogacy had been derived from the latin word surrogatus which means replacement. Black's Law Dictionary defines surrogate applies to women who agree to carry and delivers the child on behalf of couple.

In other words, surrogacy is a result of human innovative mind and advanced technologies which facilitates the married couples who are infertile to bear a child, to enjoy the happiness of parenthood. Surrogacy is a process of assisted reproduction, in which, desired couples co-ordinate with surrogate mother who is prepared to carry pregnancy for 9 months and deliver the child to the couples.

Surrogacy is done in two ways:

  1. Traditional Surrogacy:
    As the name suggests, traditional surrogacy is where the infusion of surrogate mothers are either natural or artificial. Through this method the child born can have genetic features of surrogate mother. In the traditional type, surrogates mother's eggs are used and donor's (intended father) sperm is inculcated inside the women's body. Thus, the child born out of such process is the biological child of his or her surrogate mother. Traditional surrogacy was done before the recognition of In- Vitro Fertilization (IVF) technique.
     
  2. Gestational Surrogacy:
    This is the modern method practiced mostly in present time period. In this method, egg and sperm of intended couples are taken out and mixed up in lab forming a zygote and then it is inserted into the womb of surrogate mother by using IVF technique. Unlike Traditional surrogacy, here, surrogate mother is not the biological mother of child. Child has the genetic qualities of his intended parents. Even Pre-implantation Genetic Diagnosis (PGD) is also done to ensure the health of child and could detect any kind of disease which a child could have in future, which is not there in the traditional type.

Apart from these two major types of surrogacies, there are two more categories of surrogacy:

  1. Commercial Surrogacy/Paid Surrogacy:

    Most of the surrogacies done come under this category. It means that paying expenses to surrogate mother for bearing child for 9 months and then giving birth. These are afforded by high earning childless couples. The couples pay all the medical and other surrogacy related expenses. Surrogate mothers are paid for her service delivered. Intended couples make contracts including payments of expenses in hope of a child. In simple words, desired couples bear child after paying a certain amount of money.
     
  2. Altruistic / Unpaid Surrogacy:

    Surrogate mothers are not paid any money for the services they deliver. They do so for the welfare of society and for the happiness of childless parents. She is only paid with her medical and pregnancy related expenses only. These are generally done by person who is in relation to intended parents either as a friend or as any relative. Here the surrogate women do the favour so that the childless woman could also experience the feeling of motherhood at least once.

Brief historical Origin of Surrogacy:

The concept of surrogacy is not new to the world and has its origin in the ancient times. In Greek Mythology, the word 'Eros' means 'The god of lust, love and intimacy.' Even Hindu mythology also considered marriage as a sacramental bond which is made for the procreation of son. In order to bear a child, woman used to pray 'Shivalinga' which is believed to be the symbol of fertility.

The epic saga of Mahabharata also describes about the Niyog (i.e IVF in today's term) as a solution for the problems faced by Kuru brothers Pandu and Dhritrashtra.
The customs and law of Babylonia make an arrangement of another woman for the couple, who could bear the child. She was impregnated by intended male partner.

After the birth of child, he or she was delivered to couples who would ensure his or her aftercare. Thereafter, several modifications were done and because of advancement in medical science and legalities, contemporary commercial surrogacy was introduced. In the year of 1936, pharmaceuticals and Drug Company in US, named, Schering Kahalbaum and Parke- Davis started producing Estrogen. In 1944, Prof. John Rocke (of Harvard Medical School), was the first person, who fertilizes the female ovum outside the Uterus. Then, in 1953, the cryopreservation of sperm was done, for the first time, by researchers. In USA (1980), Noel Keane (a Michigan lawyer) made the first contract of surrogacy.

Before that, in 1971, In New York, first commercial sperm bank was opened which became the high earning business. First test tube baby was born in England in 1978 by using IVF mechanism. In 1986, first case on surrogacy came in New Jersey, where the surrogate mother (Mary B. Whitehead) refused to give her baby to couples and goes against agreement made between them. The court of New Jersey made judgment in favour of biological father and allowed the custody of surrogate child to him instead of surrogate mother. Later on, a convention was held in Chile (in 1994), where Latin American fertility specialists joined and discussed upon the moral and legal position of Assisted Reproduction Technique.

Prospects of Commercial surrogacy and legislation in India:

As stated earlier, India is a hub for commercial surrogacy as the condition of women forced them to indulge in such acts. A lot of tourist travels from all over the world in India to convert their lifelong dream into reality and the expenses are also affordable by them. In India, women are ready to become surrogate mothers are easily available at very nominal rates. This can be one reason for the foreigners to choose India for surrogacy.

India had recognized commercial surrogacy by legalizing it in 2002. This attracts lots of infertile couples from outside of territory in search of a woman who could be a surrogate mother to their baby. This resulted in setting up of various foreign companies in India which helped the foreign infertile couple to find Indian women for such activity and completing other formalities and paper work related to the process.

The process of commercial surrogacy had affected the health of women very badly. It directly affected the women's reproductive health and ultimately leads to exploitation of women. Poverty was the main cause behind women renting her womb. Later on, Indian Council of Medical Research (ICMR) in 2005, pointed out certain guidelines for attribution, direction and regulation of ART (surrogacy) clinics in India but these were not followed.

Then in the year 2008, a case came forward [2]Baby Manji Yamda V. Union of India, in which a baby was born out of surrogacy and handed over to Japanese couple but she was unable to leave India because her nationality was not identified yet. The apex court in this case issued travel certificate to the baby considering commercial surrogacy as legal in India and Japanese government granted one- year visa to her on humanitarian grounds.

At the same time, ART Bill, 2008 was formulated but was not laid down before Parliament. Concerning with this problem, Law Commission of India, in its 228th Report (in 2009) suggested the abolition of commercial surrogacy and continuance of Altruistic surrogacy by formulating suitable legislations.

Finally, ART draft Bill of 2010 came into existence, which provides for national framework to prevent abuse of ART techniques and safely use them. But this Bill also had certain lacunas, not covering important implications of surrogacy. Then again, several modifications and amendments were done and later on in 2014, a bill passed named as Assisted Regulation Technology Bill, 2014.

In the meantime, Surrogacy (Regulation) Bill, 2016 was passed. The draft bill of 2016 was laid before Lower House on 21st November, 2016. Lower House referred the Bill to Standing Committee on 12th January, 2017, who submitted its report on 10th August, 2017. Based on the report passed by Standing Committee, Lower House, finally, passed the bill on 19th December, 2018.

Later on, The Surrogacy (Regulation) Bill, 2019 was introduced in Lower House by Dr. Harsh Vardhan (Union Minister of Health and Family Welfare) on 15th July, 2019 and was passed on 5th August, 2019. The Lower House referred the Bill of 2019 to Standing Committee on 21st November, 2019 and committee submitted its report on 5th February, 2020. The Bill is currently laid before Upper House.

Important Provision in Bill of 2019

The Surrogacy Regulation Law of 2019 banned commercial surrogacy for outsiders (foreigners). Meaning thereby, it is now illegal for foreign couples to come to India to avail surrogacy related benefits. Even only those Indians could avail surrogacy benefits who are married couples for 5 years and have certificate of infertility issued by District Medical Board after fulfilling certain criterias.

This means that bachelors and live- in couples could not make the surrogacy agreements. The bill had focused more on altruistic surrogacy as the drafters discerned commercial surrogacy to be the root cause of abuses done to surrogate mothers. This point was inserted keeping in view the suggestion given in 228th Law Commission Report. The bill had fixed certain criterias for surrogate mothers also like she could surrogate only once and should be close relative of couples.

The age should be between 25- 35 years and must be married having her own child, should possess certificate of fitness (both medical and psychological) for surrogacy. Registration of clinics for surrogacy purpose by appropriate authority as appointed by central or state government as the case may deems fit. National and State Surrogacy Boards would be constituted by Central and State Government respectively for advising and providing code of conduct for surrogacy clinics.

Prior to the abortion of surrogate child, surrogate mother should be consented and appropriate authority must authorize such not violating the rules under Medical Termination of Pregnancy Act, 1971. Lastly, advertising of commercial surrogacy, abusing surrogate mother, rejecting or deserting surrogate child, trading or importing of human embryo or gametes for surrogacy purpose is punishable with imprisonment maximum up to 10 years and fine maximum up to Rs. 10 Lakhs.

Ethical and Legal Implications of Surrogacy in India:

Although, surrogacy is introduced with the motive to provide parenthood feelings to infertile couples and for economic assistance to surrogate mother who has to fight every day for her subsistence living. But, due to lack of proper surrogacy legislation, only the middlemen are profit earners and intended couples and surrogate mothers are in a way being exploited. There are several moral and legal issues related with commercial surrogacy.

As per the latest Surrogacy Bill of 2019, commercial surrogacy has been banned and altruistic surrogacy had been permitted. The main reasons to ban commercial surrogacy were to prevent the exploitation of women, selling and purchasing of babies, illegal trading of human embryos The criteria mentioned for surrogate mother that she should be a close relative of infertile couple but not accurately defined the term close relative makes it a little vague to understand the concept.

The parents have to wait for 5 years and had to get a medical certificate from Doctors and have to complete certain legal formalities, which is itself a very complex and time consuming task. It is also very sarcastic that live- in couples are not allowed to go for surrogacy. This, in a way, is discriminating for live- in couples, who are not married, as for having a child, marriage is a compulsory criteria.

This means that live- in couples cannot enjoy the parenthood feeling without getting married. It is practically very difficult to find out such a women, who is a close relative and is ready to carry pregnancy for the intended couples free of cost. It become more complex in the case if the women (in close relative) is working as she does not have time to have children of her own, then, how could she find time to carry pregnancy for that intended couples? In between a major concern about society is drawn that what society will think of her.

Societal and family impression is the big issue as society never accepts this kind of behaviour. There is a lackness of secrecy and everyone in the family and society get to know about the act and then starts blaming both the surrogate mother and intended couples.

Next big concern which arose is that attachment of mother with her child. It is very difficult for any mother to keep her child away from her because of an emotional attachment built between gestational mother and child. Making surrogacy agreements by the intended couples with the women within their relation could even cause genetic disorders in child. This makes clear that exploitation can be done even in the altruistic surrogacy.

There are no laws made which accurately deal with surrogacy contracts. Surrogacy morally degrades the dignity of women in the eyes of society as ultimately it is a woman carrying pregnancy for the enjoyment of another couple who are infertile to procreate a child. There is possibility that child could have emotional problems after knowing that he or she is not the biological child of commissioning mother.

Conclusion
At last, I want to conclude that, the surrogacy rates are higher in India. Ironically, there are numerous orphan children in India but due to the desire of 'own child', many millions of orphans are denied of family and a healthy environment. Even those couples who want to adopt the child, it is again a difficult task for them because Hindu Adoption and Maintenance Act, 1956 lays very hectic terms and conditions.

Moreover, this adoption law does not allow non- hindu to adopt a hindu child. The last alternative left for such couples id to go for IVF. Further on, because of no proper legislation on surrogacy, the process had been misused a lot. Even the new amendment Bill of 2019, which has been passed by Lok Sabha is also supporting only altruistic surrogacies which have several loopholes and it scratches away the hope of earning to those females who are financially weak and have no other source of earning. Rights of surrogate woman and child are also not secure. There are lot more loopholes which needed to be removed.

The surrogacy Bill of 2019 needs more changes to be done before passing further to the President for his assent. It is mentioned in the legislation that ART Clinics should be made but, what conditions should be followed for maintaining sanitation for surrogate mother and her safe delivery at such clinics, is not there (which must be specified). Commercial surrogacy should not be completely banned, it should be legalized with certain limitations imposed for the benefit of both commissioning parents and surrogate mother.

Completely making it illegal for the foreign infertile couples to have a baby will definitely not proved to be good so, it should be legalized for foreign infertile couples to have a baby in India through surrogacy with proper authorities and regulations made for it, so that negative implication of commercial surrogacy could be removed. This could play a greater role in spreading medical tourism in India.

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