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Surrogacy in India

Surrogacy is a method or agreement whereby a woman agrees to carry a pregnancy for another person or persons, who will become the newborn child's parent(s) after birth.

Intended parents may seek surrogacy arrangement when either pregnancy is medically impossible, pregnancy risk present an unacceptable danger to the mother's health or is a same sex couple's having preferred method of having children. Monetary compensation may or may not be involved in these arrangements. If the surrogate receives money for surrogacy the arrangement is considered as commercial surrogacy, if she receives no compensation reimbursement of medical and other reasonable expenses it is referred to as altruistic.[1]The legality and cost of surrogacy vary widely between jurisdictions, sometimes resulting interstate or international surrogacy arrangements.

There are laws in some countries which restrict and regulate surrogacy and consequences of surrogacy. Some couples who want child but live in the jurisdiction of such country which does not permit surrogacy in the circumstances in which they find themselves may travel to the jurisdiction of other country which permits it.

Surrogacy in modern times is the most talked about issue. From a reproductive technology it has moved on to huge money making industry that it has spread its roots all over the world. A wish to have an offspring is the most cherished dream in the life of human beings. Literally meaning 'substitute', surrogacy occurs when a woman agrees to give birth to a child and hand it over to a party they have contacted with.

The success of these clinical advancements in developed countries and lately Nigeria has made it possible for couples who would otherwise have been unable to conceive and bear children to avail themselves of these techniques that are today commonly grouped under the heading "Assisted Reproductive Technology (ART)".[2]

The woman who bears the child is the 'surrogate' or 'birth mother'. The person or persons to whom the child is intended to be surrendered, are referred to as 'commissioning' or 'intended' parent(s).

Depending on the law where surrogacy arrangement takes place, commissioning person(s) may include:

  1. Heterosexual women who do not wish to carry a child by choice, or who are unable to carry a child due to range of factors (for example, infertility, recurrent pregnancy loss, age);s
  2. Single woman or lesbian couples who cannot or do not wish to use artificial insemination or other forms of assisted reproduction to become pregnant , or do not wish to carry a pregnancy;
  3. Single or same sex partnered men.[3]

Definition of Surrogacy:

The word 'surrogate' has been derived from the latin word 'surrogatus', past participle of 'surrogare' which has been made by combining two word 'super' and 'rogare', 'super' means over and 'rogare' means ask so surrogare means 'elect as substitute'.

The dictionary meaning of the term surrogate is a substitute. There are two forms of it. One, when a surrogate has a child for a couple where the husband is the genetic father and the surrogate the genetic mother. Two, called Host mothering is where the surrogate carries the genetic child of both the child of both the husband and wife through IVF[4]/gift technique which requires the doctor's intervention.[5]

Surrogacy is a method of reproduction whereby a woman agrees to become pregnant and deliver a child for a contracted party. She may be the child's genetic mother (the more traditional form of surrogacy), or she may, as a gestational carrier, carry the pregnancy. Surrogate birth is very controversial issue both legally and ethically. Surrogacy involves conception by a woman using an egg from another woman or using the surrogate's own egg and the sperm of a donor. Typically, the surrogate is acting for a married couple but is not limited to them and may include gay and lesbian couples or single men or women as well.[6]

A child may be born by a surrogate mother for an intended person or couple:
  1. Using her own egg and sperm by the intended father
  2. An embryo fertilized by the egg and sperm of the intended parents
  3. An embryo fertilized by:
    1. Sperm of intended parent with donor egg from third party
    2. Egg of intended parent and donor sperm from third party or
    3. Donor sperm and egg both from third party.[7]

According to the Warnock Committee (1984 report):

Surrogacy is the practice whereby one woman carries a child for another with the intention that the child should be handed over after the birth. The use of artificial insemination and the recent development of in-vitro-fertilization have eliminated the necessity for sexual intercourse in order to establish pregnancy. Surrogacy can take a number of forms.

The commissioning mother may be the genetic mother, in that she provides the eggs, or she may make no contribution to the establishment of the pregnancy. The genetic father may be the husband of the commissioning mother or of the carrying donor. There are thus many possible combinations of persons who are relevant to the child's conception, birth and early environment.[8]

According to Black's Law Dictionary, surrogacy means the process of carrying and delivering a child for another person. The New Encyclopaedia Britannica defines 'surrogate motherhood' as the practice in which a woman bears a child for a couple unable to produce children in usual way. [9]

In surrogacy agreement, the surrogate mother has no right on the surrogate child. There is only an agreement between the intended couple and the surrogate in which intended couple agree to pay for surrogate's expenses and child's while it is in womb. This is a legal precedent, which has been allowed in most countries. However, the agreements are not binding and either one can back out of it anytime.

It basically works on trust. The phenomenon of surrogate birth may involve other legal complexities such as the legality of a surrogate contract, the legitimacy of the child, the right of the surrogate mother over the child and parenthood rights.

Origin of Surrogacy:

Having another woman bear a child for a couple to raise usually with the male half of the couples a genetic father, is referred to in antiquity. Babylonian law and custom allowed this practice, and infertile woman could use the practice to avoid the divorce, which would otherwise be inevitable.[10]The earliest known description of surrogacy is claimed to be the servant Hagar begetting a child for the childless Sarah through her husband Abraham, described in the biblical Book of Genesis.[11]

Many developments in medicine, social customs, and legal proceedings worldwide paved the way for modern commercial surrogacy.

1980:
Michigan lawyer Noel keane wrote the first surrogacy contract. He continued his work with surrogacy through his Infertility Center, through which he created the contract leading to Baby M case.[12]

1985:
A woman carried the first successful gestational surrogate pregnancy.

1986:
Melisa Stern, otherwise known as "Baby M", was born in U.S. The surrogate and biological mother, Mary Beth Whitehead, refused to cede custody of Melissa to the couple with whom she made the surrogacy agreement. The courts of New Jersey found that Whitehead was the child's legal mother and declared contracts of surrogate motherhood illegal and invalid. However, the court found it in the best interest of the infant to award custody of Melissa to the child's biological father, William Stern, and his wife Elizabeth Stern, rather than Whitehead, the surrogate mother.

1990:
In California, gestational carrier Anna Johnson refused to give up the baby to the intended parents Mark and Crispina Calvert. The couple sued her for custody (Calvert v. Johnson), and the court upheld their parental rights. In doing so, it legally defined the true mother as the woman who, according to the surrogacy agreement, intends to create and raise a child.

1994:
  1. Latin America fertility specialists convened in Chile to discuss assisted reproduction and its ethical and legal status.
  2. The Chinese Ministry of Health banned gestational surrogacy because of the legal complications of defining true parenthood and possible refusal by surrogates to relinquish a baby.

2009:
The Chinese government increased enforcement of the gestational-surrogacy ban, and Chinese women began coming forth with complaints of forced abortions.

Surrogacy has the potential for various kinds of clash between surrogate mothers and intended parents. For instance, the intended parents of fetus may ask for an abortion when complications arise and surrogate mother may oppose the abortion.[13] [14]

Causes of Surrogacy:

There are many reasons why a couple would choose surrogacy to grow their family. Every couple's needs are different and no two situations are exactly the same. Surrogacy provides the couples with the option to have a child when facing all kinds of fertility or pregnancy related challenges.

Here are some reasons why couples may choose surrogacy:

  1. Infertility:
    Infertility is one of the primary reasons that a couple will pursue a surrogate pregnancy. There are countless reasons a couple or individual may struggle with infertility issues, ranging from low sperm count or pelvic inflammatory disease, age is also a major reason of infertility. Thousands of couples across the United States experience infertility and/or difficulties with a traditional pregnancy, and surrogacy offers couples the opportunity to grow their family despite these obstacles.
     
  2. Genetic Challenges:
    One or both parents may have genetic conditions that they do not wish to pass on to their child. If the mother of the child has a genetic condition, the couple may choose a surrogate who undergoes in-vitro fertilization(IVF) using the father's sperm and an egg donor. If the father has a genetic condition, the couple may choose to use a sperm donor and the mother's egg, along with IVF surrogacy.
     
  3. Medical Condition:
    If a mother has medical conditions that would not allow her to safely carry a child or go through the birthing process, a surrogate pregnancy may be an excellent alternative.
     
  4. Impossibility:
    If a same sex couple is involved, surrogacy is their only option. Choosing a surrogate who would be artificially inseminated with one of the male's sperm, or who uses an IVF using an egg donor offers the couple the chance to have a child who is biologically related to one of the partners.[15] Likely, a single woman with an inability to conceive or carry baby to full-term will require the help of a surrogate mother. Alternatively, a single man will require a surrogate as well, regardless of his fertility status.
     
  5. Past Trauma:
    Both physical and emotional trauma surrounding a past pregnancy or birth of surrounding a past pregnancy or birth of a child may deter a woman from pursuing pregnancy. This is a situation where a surrogate would be chosen to move forward with having their baby.
     
  6. When a woman freezes her eggs:
    A woman who has frozen embryos in storage dies and her male partner wishes to use the embryos to have a child, then surrogate mother is a good option.

The craze for Indian mothers as surrogate mother is increasing in foreign couples because of several reasons:

  1. The first one is obviously the imposition of the ban on the Act in foreign countries related to surrogate mothers. In China, France, Italy, Canada, Australia, Germany and USA banned the provision of surrogate mothers. But India is one of the countries where the Act was imposed in 2002. Private clinics have witnessed the mushrooming growth in Indore, Pune, Surat, Anand. These clinics are organizing deals and they act as a middlemen between the foreign couples and the willing surrogate mothers.
     
  2. The second reason is the low cost of mothers on rent. In USA, a surrogate mother costs approximately $70,000. In India, the cost is slashed down to $7,000.
     
  3. The third reason is that according to The Indian Act, one surrogate can breed five foetus if doctor allows her whereas in other countries, provision remains for three only. The childless couples are also interested in the women belonging to Northern India because they are healthy and whitish in color. Foreign couples are eager to have a white child. [16]

There are some reasons that why women choose to become a surrogate and it has been discussed as follows:

Surrogacy may have been around for thousands of years but still a large number of people are a little suspicious about what motivates women to become gestational surrogates. It is true that poor women become surrogates because of their financial condition, it is a reason because getting paid to carry a child for nine months can be really helpful financially.

However, the financial benefits of surrogacy are hardly ever the first and only motivation. But money making is the not the only reason to become a surrogate, agencies has make it clear that money can't be the only reason to become a surrogate.

Surrogates have some other motivations also, some women don't get paid at all, because they go through a process in order to help a friend or family member. For those who compensated, they usually get between $35,000 and $50,000 per pregnancy to cover drugs, potential bed rest, hospital fees and any other medical expenses, as well as any transportation charges related to pregnancy.[17]

But it is also true that for some women, the motive of becoming a surrogate is only the money making, because of their financial condition. For example, Anand and Surat of Gujarat in India are the hot places to search these surrogate mothers. The women who are bestowing their motherhood to children of foreigners are desperate to earn bread and butter for their starving families. In Anand, 27 Indian women were carrying the children of foreign fathers.

After they are born, they will be taken back either taken back either to USA or UK or to any other destination abroad and none of these women will have any claim on the children they will give birth to[18]. Mothers in India are developing increasing interest because this is one of the easiest way to create wealth in very short period.

In India, where per capita income never exceeds $500 and 35 percent of population has an income of lesser amount, the attraction of money is difficult to pass by:

They just do not want to miss the opportunity, even if they are urged to have a child directly by the unknown foreigner and not by artificial breeding system like in-vitro-fertilisation. For them dollars are much more attractive than personal sanctity as women. Their husbands also do not raise objections. The availability of surrogate mothers is one of the reasons for which the ingress of foreign couples has increased manifold recently, particularly in Northern India.[19]

Types of Surrogacy:

The word 'surrogate' has been derived from the latin word 'subrogare' which means appointed to act in place of other. It is considered as a 'blessing' and ''miracle of science'. This concept dwells for its legality to Articles 16(1) of Universal Declaration of Human Rights, 1948 which stipulates that men and women of full age and without any limitation due to race, nationality or religion have a right to marry and to find a family.

There are various types of surrogacy:
  1. Traditional surrogacy
  2. Gestational surrogacy
  3. Altruistic surrogacy
  4. Commercial surrogacy

Now, lets explain these kinds of surrogacy:
  1. Traditional surrogacy:
    Traditional surrogacy is popularly known as straight method surrogacy which means that the surrogate is pregnant with her own biological child, but the child has been conceived with the intention of relinquishing the child to be raised by other i.e. by the biological father and possibly his spouse or partner.
     
  2. Gestational surrogacy:
    Gestational surrogacy (also known as host or full surrogacy[20]) was first achieved in April 1986[21]. It means that the surrogate becomes pregnant via an embryo transfer with a child of whom she is not the biological mother and such surrogate mother is called gestational carrier.
     
  3. Altruistic surrogacy:
    Altruistic surrogacy is a surrogacy in which the surrogate mother does not intend to receive anything except the medical expenses, maternity, clothing, etc.
     
  4. Commercial surrogacy:
    Commercial surrogacy is where the surrogate mother receives full consideration treating her action as a surrogate in a manner akin to a commercial surrogacy. The availability of poor surrogate mothers has meant that commercial surrogacy has reached industrial proportions. "Commercial surrogacy" sometimes is referred to as "wombs for rent", "outsourced pregnancies" or "baby farms".[22]

So, these are the types of surrogacy. However, in countries like Australia, Canada, Japan, and in some states of the USA, commercial surrogacy is either illegal or banned.[23]

National laws regarding Surrogacy:

In India, so far no legislation has been framed legalizing or declaring surrogacy as illegal. But in 2008, the Supreme Court of India in Manji's case (Japanese Baby) has held that commercial surrogacy is permitted in India.

As of 2013, places where a woman could legally be paid to carry another's child through IVF and embryo transfer included India, Georgia, Russia, Thailand, Ukraine and a few U.S.states.[24]

Guidelines issued by the Indian Council for Medical Research, pertaining to governance of surrogacy:

In 2005, the first attempt at regulating surrogacy was made by the Indian Council for medical research (ICMR). The ICMR issued guidelines for regulating ART clinics. However, these are not enforceable and hence have been repeatedly flouted.[25] The following is the extract from the "Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005":

3.10: Surrogacy : General Considerations

3.10.1: A child born through surrogacy must be adopted by the genetic (biological) parents unless they can establish through genetic (DNA) fingerprints (of which the records will be maintained in clinic) that the child is theirs.

3.10.2: Surrogacy by assisted conception should normally be considered only for patients for whom it would be physically or medically impossible/ undesirable to carry a baby to term.

3.10.3: Payments to surrogate mothers should cover all genuine expenses associated with pregnancy. Documentary evidence of the financial arrangement for surrogacy must be available. The ART centre should be involved in this monetary aspect.

3.10.4: Advertisements regarding surrogacy should not be made by the ART clinic. The responsibility of finding a surrogate mother, through advertisement or otherwise, should rest with the couple, or a semen bank.[26]

3.10.5: A surrogate mother should not be over 45 years of age. Before accepting a woman as a possible surrogate mother for a particular couple's child, the ART clinic must ensure (and put on record) that the woman satisfies all the testable criteria to go through a successful full-term pregnancy.

3.10.6: A relative, a known person, as well as a person unknown to the couple may act as a surrogate mother for the couple. In the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate.

3.10.7: A prospective surrogate mother must be tested for HIV and shown to be seronegative for this virus just before embryo transfer. She must also provide a written certificate that:
  1. she has not had a drug intravenously administered into her through a shared syringe,
  2. she has not undergone blood transfusion; and
  3. she and her husband (to the best of her/his knowledge) have had no extramarital relationship in the last six months.
This is to ensure that the person would not come up with symptoms of HIV infection during the period of surrogacy. The prospective surrogate mother must also declare that she will not use drugs intravenously, and not undergo blood transfusion excepting of blood obtained through a certified blood bank.

3.10.8 : No woman may act as a surrogate more than thrice in her lifetime.[27]

Drawback of guidelines:
These guidelines are nebulous and not friendly to patients and doctors:
  1. For instance, Section 3.10 of ICMR guideline states that "No relative or person known to the couple may act as a surrogate." This, experts believe, is ludicrous as it propels childless couples needlessly towards commercial surrogacy. In fact, in-vitro-fertilization experts say that in 90% of the surrogacy cases in India, the mother is related to the childless couple while only in five per cent, commercial. So, infertile couples are forced to think twice before going in for it due to the cost involved, which is unfortunate as India is home to 14 per cent of the world's estimated 80 million infertile couples.
     
  2. Then, there is ambiguity about a surrogate mother's rights. The guidelines state that "a surrogate should be younger than 45 years" without mentioning the minimum age. So does that mean an 18-year-old, or someone even younger, can become a surrogate mother?
     
  3. Also, what happens after the baby is born? According to the ICMR guidelines, a child born through surrogacy "must be adopted by the genetic (biological) parents unless they can establish through genetic (DNA) fingerprinting that the child is theirs." Ergo, the only option left open to them is to adopt the baby, which is a very lengthy and cumbersome process in India.
     
  4. The regulations do not provide legal protection to Indian parents, either. The only legal recognition of the child's parentage is the birth certificate, and it is only the birth mother's name that can be used for this purpose. Consequently, if the birth mother decides not to hand over the baby after birth, there is nothing the intended parents or the doctor do about it.[28]

The Assisted Reproductive Technology (Regulation) Bill & Rules-2008:

The legislature in 2008 drafted the ART Bill, which is yet to be tabled. The bill seeks to formally legalize commercial surrogacy in India. The Bill sets an age threshold for surrogate mother between 21 and 35. It also lays down that a single surrogate cannot give birth to more than 5 children (including her own) in a lifetime.

In the presence of a surrogacy agreement, the legitimacy of the child being born to the parents commissioning the surrogacy, will not be up for question. Administrative framework to regulate surrogacy has also been laid down in the Bill. The Bill provides for government certified ART banks that will be used to keep a database of surrogates and donors. The draft Bill envisions many of the problems surrounding surrogacy and seeks to mitigate them through legislation.[29]

In phenomenal exercise to legalize commercial surrogacy, a draft bill prepared by a 15 member committee including experts from ICMR, medical specialists and other experts from the ministry of Health and Family Welfare, Government of India was posted online recently for feedback. This 135 page document is meant to be an Act to provide for a national framework or Regulation and Supervision of Assisted Reproductive Technology and matters connected therewith or incidental thereto as a unique proposed law to be put before the Indian Parliament. Abetting surrogacy, it legalizes commercial surrogacy stating that the surrogate mother may receive monetary compensation and will relinquish all parental rights. Single parents can also have children using a surrogate mother. Foreigners, upon their registration with their Embassy can seek surrogate arrangements.[30]

Law Commission's Report on surrogacy:

The 228th Law Commission of India Report in August 2009 added suggestions to the ART Bill. However, Law Commission Reports are merely suggestive in nature and have not been implemented. With India growing as a market for surrogacy, it is time that the legislature passes a law that adequately regulate the complex issues surrounding it. [31]

Legal issues associated with surrogacy:

As far as the legality of the concept of surrogacy is concerned it would be worthwhile to mention that Article 16.1 of Universal Declaration of Human Rights 1948 says, inter alia, that "men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family." The Judiciary in India too has recognized the reproductive right of humans as basic right.

Now, if reproductive right gets constitutional protection, surrogacy which allows an infertile couple to exercise that right also gets the same constitutional protection. However, jurisdictions in various countries have held different views regarding legalization of surrogacy. In England, surrogacy arrangements are legal and the Surrogacy Arrangements Act, 1985 prohibits advertising and other aspects of commercial surrogacy.

In India, according to the National Guidelines for Accreditation, Supervision and regulation of ART Clinics, evolved in 2005 by the Indian Council of Medical Research (ICMR) and the National Academy of Medical Sciences (NAMS), the surrogate mother is not considered to be the legal mother. The birth certificate is made in the name of the genetic parents. The US position as per the Gestational Surrogacy Act 2004 is pretty similar to that of India.[32]

Observations made by Law Commission in its report:

  1. Surrogacy arrangements will continue to be governed by a contract amongst parties, which will continue to be governed by a contract amongst parties, which will contain all terms requiring consent of surrogate mother to bear the child, the agreement of her husband and other family members for the same, medical procedures for artificial insemination, reimbursement of all reasonable expenses for carrying the child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such arrangements should not be for commercial purposes.
     
  2. A surrogacy arrangement should provide for financial support to the surrogate child in event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
     
  3. A surrogacy contract should necessarily take care of life insurance cover for the surrogate mother.
     
  4. One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child abuse, which have been noticed in case of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
     
  5. Legalization itself should recognize a surrogate child to be the legitimate child of commissioning parent(s) without there being any need for adoption or even declaration of guardian.
  6. The birth certificate of the child shall contain the name(s) of commissioning parents only.
     
  7. Right to privacy of donor as well as surrogate mother should be protected.
     
  8. Sex-selective surrogacy should be prohibited.
     
  9. Cases of abortions should be governed by Medical Termination of Pregnancy Act 1971 only.
The Report has come out largely in support of Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor which the law has to address. Also, commercialization of surrogacy is an issue that has been on the mind of the Law Commission.

Right of Foreign Homosexuals to have a Surrogate Child in India[33]:

A recent case is Israeli homosexual couple case in which the couple had a surrogate child in India. Everywhere, people seem to be pleased about it, but when analyzed legally, it leaves us in a very befuddled state of mind.

Thus, in future it would be appropriate if the right of foreign homosexuals to have a surrogate child in India is governed by the ART Bill, 2008, which, in all likelihood, will become a law in parliament.

In order draw out the right of homosexual to have a surrogate child in India, a glance should be directed to the following provision of the above Act, Section 32(1) of the Bill, the enabling provision, which states that: "Subject to provisions of this Act and the rules and regulations made thereunder, "ART"[34] shall be available to all persons including single persons, married couples and unmarried couples". Therefore, it becomes pertinent to understand how a couple defined here. Under Section 2(e) of the Bill, a couple means: "Persons living together and having sexual relationship that is legal in the country/ countries of which they are citizens or they are living in"[35]

The Surrogacy (Regulation) Bill, 2016[36]:

The Union Cabinet chaired by Prime Minister Shri Narendra Modi has given its approval for introduction of the "Surrogacy (Regulation) Bill, 2016. The legislation will ensure effective regulation of surrogacy, prohibit commercial surrogacy and allow ethical surrogacy to the needy infertile couples.

In the preamble of this bill, it has been stated that that this bill has been made to constitute National Surrogacy Board, State Surrogacy Board and the appointment of appropriate authorities for regulation of practice and process of surrogacy and for matters connected therewith and incidental thereto.
  1. Regulation of Surrogacy Clinics[37]:
    Only Those surrogacy clinics which are registered under this Act shall conduct or associate with activities relating to surrogacy and surrogacy procedures and these clinics are not allowed to conduct the commercial surrogacy in any form. The surrogacy clinics or the medical practitioners are not allowed to advertise which is aimed promoting commercial surrogacy in general or which is aimed at inducing the women to become a surrogate. And it is also said in this act no surrogacy clinic or legal practitioner shall conduct or cause abortion during the period of surrogacy without the written consent of surrogate mother and on authorization of the same by appropriate authority.
     
  2. Regulation of Surrogacy and Surrogacy Procedures[38]:
    The Surrogacy procedures shall be conducted only when, either or both members of the couple is suffering from proven infertility or when it is only for altruistic surrogacy purposes and not for commercial surrogacy purposes, or when the surrogate children are not produced for sale or prostitution or any other form of exploitation. Surrogacy or surrogacy procedures shall not be conducted unless the Director or in-charge of the surrogacy clinic and the person qualified to do so stated that all the conditions and formalities stated under this Act have been fulfilled by intending couple or surrogate mother.

    The side effect and the after effects of the surrogacy procedure must be explained to the surrogate mother before conducting surrogacy by such person. And after the delivery of the surrogate child the intending couple shall not abandon the child born out of surrogacy for any reason including any genetic defect, birth defector any other medical defect or sex of the baby.
     
  3. Registration of Surrogacy Clinics[39]:
    For the purpose of rendering surrogacy procedures in any form the surrogacy clinics must be registered under this Act and they must fulfill all the conditions given under this Act for their registration. Then the appropriate authority after satisfying itself that the applicant has complied with all the requirements of this Act, rules and regulations made thereunder render a certificate of registration to the surrogacy clinic. If the appropriate authority observes that the requirements rendered under this Act have not been complied with may cancel or suspend the application for registration after giving an opportunity of being heard to such surrogacy clinic.
     
  4. National Surrogacy Board [40]:
    The Central government shall, by notification, constitute a Board to be known as National Surrogacy Board to exercise powers and functions conferred on Board under this Act. The Board shall advise the Central Government on policy matters relating to surrogacy or oversee the performance of various bodies constituted under this Act and it shall also supervise the functioning of State Surrogacy Boards.
     
  5. State Surrogacy Board[41]:
    Each State and Union territory having legislature shall constitute a Board to be known as State Surrogacy Board, as the case may be. The Board shall discharge the functions as conferred on it under this Act. The Board shall review the activities of appropriate authorities functioning in the State or Union territory and recommend appropriate action against them and it shall monitor the implementation of the provisions of this Act in their State.
     
  6. Appropriate Authority [42]:
    The Central Government shall, within a period of 90 days from the date of commencement of this Act, by notification, appoint one or more appropriate authorities for each of the Union territories for the purpose of this Act. And The State Government shall also within a period of 90 days from the date of commencement of this Act, by notification appoint appropriate authorities for their State.
     

So, this was the bill which has come last year in 2016. This bill strictly bans the commercial surrogacy and commercial surrogacy is an offence under this Act and punishable under this Act.

The Surrogacy (Regulation) Act 2021:
This Act was passed in December, 2021 and made "Altruistic Surrogacy" mandatory to curb exploitation of women for commercial gains. The Law limits the medical procedure to couples who are infertile and have been married for at least five years, with no surviving offspring. This Act has made "Commercial Surrogacy" completely illegal and banned in India. So, By this Act the provisions of The Surrogacy (Regulation) Bill, 2016 has come into force.

Role of Judiciary:
Following are the cases in which the Indian Judiciary gave their decisions on Surrogacy:
B.K. Parthasarthi v. Government of Andhra Pradesh[43], In this case, the Andhra Pradesh High Court upheld "the right of reproductive autonomy" of an individual as a facet of his "right to privacy" and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma[44], which characterised the right to reproduce as "one of the basic civil rights of man".

In Javed v. State of Haryana[45], though the Supreme court upheld the two living children norm to debar a person from contesting a Panchayat Raj election it refrained from stating that the right to procreation is not a basic human right.

Indian Baby M Case:
Baby Manji Yamada v. Union of India[46] concerned production/custody of a child Manji Yamada given birth by a surrogate mother in Anand, Gujrat under a surrogacy agreement with her entered into by Dr Yuki Yamada and Dr Ikufumi Yamada of Japan. The sperm had come from Dr Ikufumi Yamada, but the egg from a donor, not from Dr Yuki Yamada. There were matrimonial discords between the commissioning parents.

The genetic father Dr Ikufumi Yamada desired to take custody of the child , but he had to return to japan due to expiration of his visa. The Municipality at Anand issued a birth certificate indicating the name of genetic father. The child was born on 25.07. 2008 and moved on 03.08 2008 to Arya Hospital in Jaipur following a law and order situation in Gujarat. The baby was provided with much needed care including being breastfed by a woman.

The grandmother of baby Manji, Ms Emiko Yamada flew from Japan to take care of child and filed a petition in Supreme Court under article 32 of the constitution. The Court relegated her to the National Commission for Protection of Child Rights constituted under the Commissions for Protection of Child Rights Act 2005. Ultimately, baby Manji left for Japan in the care of her genetic father and grandmother.

Israeli Gay Couple's Case:
Thereafter was in the news the Israeli gay couple's case[47], the gay couple Yonathan and Omer could not in Israel adopt or have a surrogate mother. They came to Mumbai. Yonanthan donated his sperm. They selected a surrogate. Baby Evyatar was born. The gay couple took son Evyatar to Israel. Israeli government had required them to do a DNA test to prove their paternity before the baby's passport and other documents prepared.[48]

Harihara Varma v. Girija Menon, in this case serious counter affidavit was filed by the respondent. Significantly absolutely no evidence and much less documentary evidence was produced by the petitioner to substantiate his case of having entered into surrogacy agreement and having staged drama of marriage along with respondent. The learned Judge of Family Court dismissed the IA holding that no prima facie case is made out for passage of injunction order against the respondent who is in actual physical occupation.

Jan Balaz v. Anand Municipality & six Ors.[49], which involved the question of nationality of the twins born to an Indian surrogate mother with the help of unknown Indian donor and sperm of the father, Jan Balaz. At the time when this case was up on hearing before Hon'ble Supreme Court and until today, there is no law governing surrogacy in India and in the name of surrogacy lot of irregularities are being committed every day. In the name of surrogacy money making racket is being perpetuated.

Conclusion:
Looking closely, we realize that like any modern discovery, surrogacy also runs the risks of being utilized for the narrow financial gains of a few. Nations should use the legal system to see that surrogacy serves the human cause and is not turned into a moneymaking venture. At this time, we can say that Indian Government has taken this initiative to ban the commercial surrogacy, so that the rich people cannot take advantage of the weakness of poor and needy people. But at the same time, rights and interests of surrogates and intended parents should be looked after.

The governments of third world countries should ensure that their surrogates are not underpaid or exploited in any way. We should always remember that it is welfare of people that is the ultimate aim of any scientific discovery, surrogacy or otherwise. In our opinion, surrogacy is much better than adoption of a child, the reason is that the chances of the trafficking of the adopted children are more than that of the surrogate child because the surrogate child is biologically related to the intended parents, so chances of child trafficking are less in case of surrogate child.

In case of surrogacy, there is an agreement between the surrogate mother and the genetic parents that after the delivery of the child the surrogate mother has to handover the surrogate child to the intended parents, so when the embryo is fertilized into the womb of the surrogate mother from that time all the financial support or the love and affection is given to the surrogate mother but after the delivery of the child when surrogacy procedure is finished suddenly the surrogate mother is forgotten. That's why in this process, the feelings of the woman who is the surrogate mother of the child are ignored.

End-Notes:

  1. Reproductive law Lisa feldstrin Law Office. Retrieved March 4, 2016.
  2. Samson O. Koyonda, Assisted Reproductive Technology In Nigeria: Placing The Law Above Medical Technology At P.66 ,Journal Of Indian Law Institute, vol.43 no.1, January-March 2001
  3. www.healthlawcentral.com/surrogacy/ visited at June 30, 2022
  4. In-vitro-fertilisation.
  5. Anil Trehan, Surrogate Motherhood in India: A Conceptual and Effectual Analysis and Recommendations of Indian Surrogacy Law Centre at p.23, Nayaya Deep, vol.10 Issue 4, October 2009 .
  6. New reproductive techniques and new parental issues �http://www.etax.byu.edu/ wardel/ fundsprintsfaml/ 11newpro.htm.
  7. Ms. Sonu Sharma, Surrogacy in India : The Darker and the Brighter Sides, at p.64, Nayaya Deep, vol.16, Issue 4, October 2015.
  8. Samson O. Koyonda, Assisted Reproductive Technology In Nigeria: Placing The Law Above Medical Technology At P.76 ,Journal Of Indian Law Institute, vol.43 no.1, January-March 2001
  9. http;//www.lawcommissionofindia.nic.in visited at June 30, 2022
  10. Postgate, J.N.(1992).Early Mesopotamia Society and Economy at the Dawn of History. Routledge p.105.ISBN 0-415-11032-7.
  11. http;//www.economist.com/news/leaders/21721914-restrictive-rules-are-neither-surrogates-interest-nor-babys-carrying-child.
  12. Van Gelder, Lawrence(January 28,1997). Noel Keane, 58, Lawyer in Surrogate Mother Cases, Is Dead.The New York Times. Retrieved February 2013.
  13. Surrogate Mother Sues over Demand for Abortion. The Independent. Retrieved February 14,2011.
  14. New Hampshire Surrogacy Law: What No One Wants to Talk About. Retrieved August 23, 2014.
  15. https://googleweblight.com/i?u=https://www.surrogatemothers.com/blog/surrogacy/why-couple -choose-surrogacy/&grqid=m_VNu3Zb&hl=en-IN visited at June 30, 2022.
  16. Anil Trehan, Surrogate Motherhood in India: A Conceptual and Effectual Analysis and Recommendations of Indian Surrogacy Law Center at p.25, NAYAYA DEEP, vol.10, Issue4, October 2009.
  17. https://www.coparents.com visited at July 2, 2022.
  18. Anil Trehan Surrogate Motherhood in India: A Conceptual and Effectual Analysis and Recommendations of Indian Surrogacy Law Center at p.24, NAYAYA DEEP, vol.10, Issue4, October 2009
  19. Anil Trehan, Surrogate Motherhood in India: A Conceptual and Effectual Analysis and Recommendations of Indian Surrogacy Law Center at p.25, NAYAYA DEEP, vol.10, Issue4, October 2009.
  20. Imrie, Susan; Jadva, Vsanti(4 July,2014). The long-term experience of surrogates: relationships and contact with surrogacy families in genetic and gestational surrogacy arrangements. Reproductive BioMedicine Online. 29(4):424-435.doi:10.1016/j.rbmo.2014.06.004.
  21. http://www.people.com/people/archive/article/article/0,,20096199,00.html visited at September 9,2017.
  22. Dr. Justice B.S. Chauhan, Law, Morality & Surrogacy- with Special Reference to Assisted Reproductive Technology at p.3, NAYAYA DEEP, vol.13,Issue 4, October 2012.
  23. Ms. Sonu Sharma ,Surrogacy in India : The Darker and the Brighter Sides at p.65, NAYAYA DEEP, Volume16, Issue 4, October 2015
  24. [dead link] Bhalla, Nita;Thapliyal, Mansi (September 30,2013). India Seeks to Regulate Its Booming Surrogacy Industry. Reuters Health Information (via Medscape
  25. https://www.google.co.in/amp/www.pocketlawyer.com/blog/surrogacy-in-india/amp/ visited at July 2, 2022.
  26. Section 3.9.1.1 and section 3.9.2 of Guidelines issued by the Indian Council for Medical Research, pertaining to governance of surrogacy Chapter 3, Code of Practice, Ethical Consideration and legal Issues.
  27. Chapter 3, Code of Practice, Ethical Considerations and Legal Issues, Guidelines for ART clinics in India by ICMR/NAMS
  28. Ms. Sonu Sharma ,Surrogacy in India : The Darker and the Brighter Sides at p.72, NAYAYA DEEP, Volume16, Issue 4, October 2015.
  29. https://www.google.co.in/amp/www.pocketlawyer.com/blog/surrogacy-in-india/amp/ visited at July 3, 2022.
  30. Ms. Sonu Sharma ,Surrogacy in India : The Darker and the Brighter Sides at p.73, NAYAYA DEEP, Volume16, Issue 4, October 2015.
  31. https://www.google.co.in/amp/www.pocketlawyer.com/blog/surrogacy-in-india/amp/ visited at September 13, 2017.
  32. http;//www.lawcommissionofindia.nic.in visited at July 3, 2022.
  33. www.legalserviceindia.com visited at July 3, 2022.
  34. The Assisted Reproductive Technology (Regulation) Bill & Rules -2008.
  35. Ms. Sonu Sharma ,Surrogacy in India : The Darker and the Brighter Sides at p.73, NAYAYA DEEP, Volume16, Issue 4, October 2015.
  36. Bill No. 257 of 2016
  37. Chapter 2 , Section 3 of The Surrogacy (Regulation) Bill, 2016.
  38. Chapter 3, from Section 4 to Section 9 of The Surrogacy (Regulation) Bill, 2016.
  39. Chapter 4 , from Section 10 to Section 13 of The Surrogacy (Regulation) Bill, 2016.
  40. Chapter 5, from Section 14 to Section 22 of The Surrogacy (Regulation) Bill, 2016.
  41. Chapter 5, from Section 23 to Section 31 of The Surrogacy (Regulation) Bill, 2016.
  42. Chapter 6, from Section 32 to Section 35 of The Surrogacy (Regulation) Bill, 2016.
  43. AIR 2000 A.P. 156
  44. 316 US 535
  45. (2003) 8 SCC 369
  46. JT 2008 (11) SC 150
  47. The Times of India, Mumbai, 18.11.2008
  48. http;//www.lawcommissionofindia.nic.in visited at July 3, 2022.
  49. AIR 2010 Guj 21

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