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Surrogacy In India

An agreement by a woman (Surrogate mother) to undergo pregnancy so as to produce a child which will be surrendered to others (Intended parents) who cannot have children is surrogacy.
This research provides legal provisions, landmark cases, and certain regulation bills.

There are two types of surrogacy prevailing in India:
  1. Traditional / Natural / Partial surrogacy:

    The surrogate mother is artificially inseminated with the sperm of the intended father or sperm donor. The surrogate's own egg is used, thus she is the genetic/ biological mother of the resulting child. The technique used in this type is IUI.
     
  2. Gestational surrogacy:

    The surrogate mother is not genetically related to the child because her eggs are not used at all. The intended mother donates eggs while the intended father donates the sperm, the two are fused in-vitro, and the embryo is transferred to the womb of the surrogate mother to develop. IVF or ICSI are the techniques used.

Ethical surrogacy:

Surrogacy is often thought to be a 'treatment' option for the infertile or an alternative to adoption, and so to be celebrated in fulfilling people's desires to be parents.

Commercial surrogacy:

Commercial surrogacy refers to any surrogacy arrangement in which the surrogate mother is compensated for her services beyond reimbursement of medical expenses.

Reproductive right is a basic human right granted by Article 16.1 of the Universal Declaration of Human Rights 1948, and in India it is granted under Article 21 of the Constitution of India.

Here, what does intended couple means and what is the eligibility?
In many cases, intended parents are people who have tried for years to have a biological child, either naturally or through the in vitro process. For example, intended parents can be: Single men who want a child and Single women who cannot carry a child to term themselves, due to infertility or health risks.

Evolution Of Surrogacy:

In the year 2002, commercial surrogacy was legalized in India. Subsequently, the commercial firms and guidelines were given to the foreign tourists who came in search of women who can rent her womb for their parenthood. Finally, this effected dignity of women and encouraged selling of newborn, organs etc.

The 228th report of commission of India was recommended for the prohibition of commercial surrogacy by allowing ethical surrogacy, it was also stated that the reason behind a woman renting her womb is poverty due to which they suffer for daily necessities and voluntarily participate in surrogacy.
In 2005, ICMR came into force in order to ban commercial surrogacy.

Case Laws:
  1. Baby Manji Yamada Vs Union of India (AIR 2009 SC):-
    Baby Manji Yamada was born to an Indian surrogate mother for a Japanese couple, at the time of child's birth the couple got separated.
    The biological father wanted to take his child back but there were no legal provisions in India as well as in Japan.
    In the end, Supreme Court permitted the child to leave with her grandmother.
     
  2. Jan Balaz Vs Anand Municipality:
    According to Gujarat High court the child born to a surrogate mother for Germany couple should be given birth certificate in the name of biological mother to be registered as an Indian and granted passport.
These Landmark cases brought a ban bill into existence which rules out the foreign couples approaching to Indian mother.

Surrogacy Bill:

Many of the surrogacy bills are passed till date:
  • Surrogacy regulation bill 2016:
    It was passed in 2016 by LOK SABHA
    Features:
    1. The Bill permits surrogacy only for couples who cannot conceive a child. This procedure is not allowed in case of any other medical conditions which could prevent a woman from giving birth to a child.
    2. The Bill specifies eligibility conditions that need to be fulfilled by the intending couple in order to commission surrogacy. Further, it allows additional conditions to be prescribed by regulations. This may be excessive delegation of legislative powers.
    3. The surrogate mother should be the close relative of intended couple and has had a child.

Eligibility:
  • The intending couple should have a certificate of essentiality and a certificate of eligibility issued by the appropriate authority. The surrogate mother too needs a certificate of eligibility.
     
  • A certificate of essentiality will be issued to the intending couple upon fulfillment of the following conditions:

    1. A certificate of proven infertility of either or both of them;
    2. an order of parentage and custody of the surrogate child passed by a Magistrate's court; and
    3. insurance coverage for the surrogate mother.

     
  • The certificate of eligibility to the intending couple is issued upon the fulfillment of the following conditions:

    1. the couple being Indian citizens and married for at least five years;
    2. between 23 to 50 years old (wife) and 26 to 55 years old (husband);
    3. they do not have any surviving child (biological, adopted or surrogate), except if the child is mentally or physically challenged or suffers from a life threatening disorder; and
    4. such other conditions that may be specified through regulations.
       
  • To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to:

    1. be a close relative of the intending couple;
    2. be an ever married woman having a child of her own;
    3. be 25 to 35 years old;
    4. not have been a surrogate mother earlier; and
    5. have a certificate of medical and psychological fitness.

Section 3 of the Act provides for:

  1. Compulsory Registration of Surrogacy Clinic
  2. No surrogacy at other place than registered clinic, no Specialist or medical practitioner shall perform commercial surrogacy
  3. No Specialist or medical practitioner to perform without qualification
  4. No promotion or aid or advertisement
    1. Of commercial surrogacy in any way by clinic or any person
    2. That encourage a women to be a surrogate mother
    3. Seeks a women to Act as a surrogate
    4. Implies the willingness of a women to become a surrogate
  5. No abortion without consent of mother and Appropriate Authority should comply with the provisions of the Medical Termination of Pregnancy Act, 1971)
  6. NO storage of Human Embryo or Gamete is allowed for surrogacy purpose.

Surrogacy regulation bill 2019:

Section 4(ii) of the Bill has provided with the conditions exclusively under which the surrogacy is permitted in India:
  1. The intending couple who wish to practice surrogacy must suffer from proven infertility through medical reports.
  2. Only altruistic surrogacy to be permitted which is for genuine help of intending couples without any monetary return except for the medical expenses.
  3. It restricts commercial surrogacy which is practiced by surrogate mother for the purposes of monetary returns.
  4. The children born out of surrogacy must not be subjected to any sort of exploitation, prostitution or sale to other persons.
  5. The couple suffers from any disease or condition as specified under regulation.

Eligibility:
Section 4(iii) (a) of the Bill states that eligibility criteria for the intending couple has been established under the bill for them to undergo surrogacy. The couple needs to gather a 'certificate of essentiality' and a certificate of eligibility.

Certificate of essentiality is obtained by the intending couple on the fulfillment of certain conditions:
  1. Certificate of proven infertility of the couple issued by District Medical Board.
  2. Custody of the child passed to the couple by Magistrate Court 3. 16 months of insurance to maintain the surrogate mother for her medical expenses which include healing procedure.

Surrogacy regulation bill 2020:

Clause 4 (ii)(a) of Chapter III relating to Regulation of Surrogacy and Surrogacy Procedures of the 2020 Bill, and some of the relevant clauses at pages 43-45 mandate as follows:

4.(ii) No surrogacy or surrogacy procedures shall be conducted, undertaken, performed or availed of, except for the following purposes, namely:
  1. When an intending couple has a medical indication necessitating gestational surrogacy:
    Provided that a couple of Indian origin or an intending women who intends to avail surrogacy, shall obtain a certificate of recommendation from the Board on an application made by the said persons in such form and manner as may be prescribed.

    Explanation For the purposes of this sub-clause and item (I) of sub-clause (a) of clause (iii), the expression 'gestational surrogacy' means a practice whereby a surrogate mother carries a child for the intending couple through implantation of embryo in her womb and the child is not genetically related to the surrogate mother;
  2. When it is only for altruistic surrogacy purposes;
  3. When it is not for commercial purposes or for commercialization of surrogacy or surrogacy procedures;
(iii) (I) a certificate of a medical indication in favor of either or both members of the intending couple or intending woman necessitating gestational surrogacy from a District Medical Board.

(III) an insurance coverage of such amount and in such manner as may be prescribed in favor of the surrogate mother for a period of thirty-six months covering postpartum delivery complication from an insurance company or an agent recognised by the Insurance Regulatory and Development Authority established under the Insurance Regulatory and Development Authority Act, 1999;

Provided that the intending couple or the intending woman [defined explicitly in Section 4 (1) of the 2020 Bill at page 44 of the said report] shall approach the appropriate authority with a willing woman who agrees to act as a surrogate mother;

(b) (III) No woman shall act as a surrogate mother by providing her own gametes;

(IV) No woman shall act as a surrogate mother more than once in her lifetime.'

Issues:
A few of the many issues raised by surrogacy include: the rights of the children produced; the ethical and practical ramifications of the further commodification of women's bodies; the exploitation of poor and low income women desperate for money; the moral and ethical consequences of transforming a normal biological function of a woman's body into a commercial transaction.

Conclusion And Suggestions:
Childlessness is a very real and tremendous problem for infertile couples in all over the world. Sympathy as well as a search for a solution is necessary. Solutions to difficult problems, however, do not appear in an instant. Courts must scrutinise solutions to decide the potentially grave ramifications of their results.

Efforts to construct legislative policy in response to developments in assisted reproductive technologies are stymied by lack of societal consensus. Concerns over the commodification of reproductive practices and changes to natural family relations must be balanced against empathy for those who desire to have children and support of reproductive freedom.

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