Posted on: July 11, 2020 Posted by: Smitha Khandige Comments: 0
Share this Article

Introduction:

The concept of surrogacy is a highly debated topic in the country and elsewhere owing to the many ethical considerations that have to be taken into account such as concern about exploitation, commodification, or coercion, when women are paid to be pregnant and deliver babies, especially in cases where there are large wealth and power differences between the intended parents and the surrogates; the conflicting concepts of motherhood of the surrogate and the intended mother, especially in the case of traditional surrogacy, the rights of the child, abandonment of the children born out of surrogacy etc. The ethicality, religious, moral and legal complexities involved have made it a matter of concern.

The Surrogacy Regulation Bill attempts to delicately balance the right of childless couples to procreate and the human rights of the surrogate mothers.

What is surrogacy?

Surrogacy “means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.” (Surrogacy Regulation Bill, 2019)

Couples with infertility issues, same-sex couples, etc. often rely on other methods of child bearing such as this.

On the basis of the nature of fertilization, there are two kinds of surrogacy, traditional surrogacy and gestational surrogacy. Traditional surrogacy is the one where surrogacy is the result of artificial insemination of the surrogate mother with the intended father’s sperm, making her the genetic parent as well as the surrogate parent. Gestational surrogacy, on the other hand is the arrangement by which an embryo from the intended parents is transferred to the surrogate uterus, whereby the surrogate has no genetic connection to the child.

Surrogacy can be of two types, commercial or altruistic. Commercial surrogacy involves monetary compensation to the surrogate mother and the other middle-men involved, barring the medical, insurance and other pregnancy related expenses. Non-commercial or altruistic surrogacy, on the other hand involves no monetary compensation to the surrogate, but is rather based on familial or friendly relations that the couple shares with the surrogate.

History of surrogacy in India:

The world’s second and India’s first In-Vitro Fertilization (IVF) baby was born in 1986. Since then the field of ART (Assisted Reproductive Technology) has grown and with it has grown the field of surrogacy.

India first legalized commercial surrogacy in the year 2002 and over the years has grown exponentially as India became a global surrogacy hub, becoming a billion-dollar industry in the country because of low costs and almost no regulation. Surrogacy was legalized with the ICMR (Indian Council of Medical Research) regulations guiding it; however there was no legal backing.

Without any legislation to regulate commercial surrogacy, exploitation of the surrogates became common. They usually belonged to the lower income classes and were pushed into surrogacy by their family for easy money. They were subjected to poor living conditions, unethical treatment etc. They were treated as ‘baby making machines’ by the surrogacy agencies.

It was only in the case of Baby Manji Yamada in 2008 that the absence of legislation was felt. A Japanese couple opted for surrogacy in Gujarat’s Anand district; but a month before the baby was born, the couple separated and the intended mother refused the child stating that the baby was not genetically related to her. The surrogate mother too refused the child. The court declined granting custody to the single male parent. The child had neither Japanese nor Indian nationality. Finally, custody was granted to the baby’s grandmother and taken to Japan after a few months. The court stated that commercial surrogacy was legal in India since no law prohibited it.

The 228th Law Commission Report, “Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy” stated the urgent need for surrogacy laws in the country. The Assisted Reproductive Technologies (Regulation), ART Bill, 2008 was formulated, and revised several times over the years, but never passed. Thereafter surrogacy was banned for foreign nationals, including homosexuals and single-parents through government guidelines. The Surrogacy (Regulation) Bill, 2016 was passed in the Lok Sabha but later lapsed.

The Surrogacy (Regulation) Bill, 2019, which was similar to the 2016 bill in all aspects, was passed by the Lok Sabha in August, 2019. In the Rajya Sabha, it was referred to a Select Committee which proposed 15 recommendations in total after considering the suggestions of the concerned stakeholders. The amended bill, Surrogacy (Regulation) Bill, 2020, which is a reformed version of the draft 2019 bill including all 15 recommendations of the committee, has been approved by the Cabinet.

The major changes included in the bill:

  • The bill proposes for the establishment of a National Surrogacy Board and State Surrogacy Boards whose functions were to advice the government on policy matters as well as to supervise surrogacy clinics.
  • It removed the restriction of surrogate to a ‘close relative’ and now allows for any ‘willing woman’ to become a surrogate.
  • Commercial surrogacy was completely banned and only altruistic surrogacy was allowed.
  • The bill allows surrogacy for Indian heterosexual married couple and has widened the possibilities to include Indian origin married couple, widowed women and divorced women, all with certain age limits.
  • The insurance cover has been extended from 16 to 36 months to address medical complications even after pregnancy.
  • The definition of infertility in the 2019 bill which previously defined it as the inability to conceive after five years of unprotected intercourse was deleted.
  • The newborn child shall be entitled to all rights and privileges that a natural-born child would be entitled to. Sex selection and sex selective abortions were banned.
  • It became mandatory for the couple to obtain a certificate of essentiality and also a certificate of eligibility (proven infertility) before going ahead with surrogacy.
  • Advertising or undertaking for commercial surrogacy, selling or importing human embryos for surrogacy, disowning a child born of surrogacy, exploitation of surrogate mother etc. have been made offences under this act.

Analysis of the bill

  • According to the 102nd Report by the Select Committee of the Rajya Sabha, the barring of commercial surrogacy is based on ‘moralistic assumptions than on any scientific criterion’.
  • “Permitting women to provide reproductive labor for free to another person but preventing them from being paid for their reproductive labor is grossly unfair and arbitrary”, according to the 102nd Report by the Select Committee of the Rajya Sabha. Surrogacy is a form of reproductive labor, and it’s better to be compensated economically for it. Instead of purely altruistic surrogacy, a compensated altruistic surrogacy model can be promoted. In the altruistic arrangement, the commissioning couple gets a child; and doctors, lawyers and hospitals get paid. However, the surrogate mothers are expected to practice altruism without a single penny. Reasonable expenses related to IVF, the pregnancy, delivery, those expenses not covered by insurance, adoption, insurance, legal charges, loss of earnings for the surrogate mother due to the pregnancy etc. should be compensated.
  • Thinking that a blanket ban on commercial surrogacy would completely end exploitation of Indian surrogates and Indian women in general is too idealistic since this is only likely to push the entire industry underground, hurting the very people it seeks to protect. The surrogates, whom the law aims to protect, would face greater risks of financial exploitation, unsafe conditions and emotional trauma without any legal protection available.
  • The bill violates Article 14 of the Constitution which provides for equality before the law as it is discriminatory on the basis of age, sexuality and marital status; towards homosexuals and live-in couples.
  • The Bill also requires the couples to obtain a ‘certificate of infertility’ from the district medical board, which is a violation of ‘right to privacy’ and has been recognized as a ‘fundamental right’ to be protected under the Constitution of India in the landmark judgment of Jus. KS Puttaswamy (Retd) and Anr v Union of India and ors. As also observed in B.K. Parthasarathi v Govt. of AP., the ‘right of reproductive autonomy’ is a facet of ‘right to privacy’ and the intrusion of state into such a decision making process has to be scrutinized by the Courts.

Surrogacy in other countries:

Commercial surrogacy is legal in Ukraine, and California while it is illegal in England, many states of United States, and in Australia, which recognize only altruistic surrogacy. In contrast, countries like Germany, Sweden, France, Spain, Portugal, Bulgaria Norway, and Italy do not recognize any surrogacy agreements.

Conclusion:

A country’s laws reflect the attitude of its people and every nation should aim to move forward with the times, instead of going back in time by making regressive laws. The practice of surrogacy has been marred by a lot of controversy and the issue of what should be allowed morally.

The potential for exploitation of surrogates is linked to the lack of regulatory oversight and lack of legal protection to the surrogate and can be minimized through adequate legislative norm-setting and robust regulatory oversight. The onus should be on the government to regulate and make safe the working conditions of surrogate mothers, as opposed to banning the work of commercial surrogacy completely and expecting it to be done out of the goodness of a woman’s heart for free. However, it remains for the legislators to answer if commercial surrogacy could have been allowed with strong regulations and oversight.

In India, legislation implementation has always been a challenge and it will be interesting to look if the lawbreakers could devise any other mechanism to achieve the purpose. It remains to be seen whether this bill, unlike its predecessors, could become a proper Act, and give India a legal framework to regulate this practice.

References:

  1. Patel, Nayana Hitesh et al. “Insight into Different Aspects of Surrogacy Practices.” Journal of human reproductive sciences vol. 11,3 (2018): 212-218. doi: 10.4103/jhrs.JHRS_138_17
  2. Saxena, Pikee et al. “Surrogacy: ethical and legal issues.” Indian journal of community medicine: official publication of Indian Association of Preventive & Social Medicine vol. 37,4 (2012): 211-3. doi:10.4103/0970-0218.103466
  3. Nivedita Rao, International comparison of surrogacy laws, PRS Legislative research, 28 November, 2016
  4. Banerjee, Sneha (2018), “The Law Commission and Surrogacy: A Critical Look at the 228th Report”, Journal of Indian Law and Society, “Indian Feminisms, Law Reform and the Law Commission of India: Special Issue in Honour of Lotika Sarkar” 6(Monsoon; dated 2015):44-64
  5. Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy, Law Commission 228th report, August 2009, Law Commission, Government of India, http://lawcommissionofindia.nic.in/reports/report228.pdf
  6. Dr. Bins Sebastian, Is Banning Commercial Surrogacy the right thing to do?  , 5 January, 2019, Livelaw, https://www.livelaw.in/columns/is-banning-commercial-surrogacy-the-right-thing-to-do-141862?infinitescroll=1 ,last visited on 9 July 2020
  7. ONE HUNDRED SECOND REPORT On THE SURROGACY (REGULATION) BILL, 2016, Rajya Sabha, Parliament of India
  8. THE SURROGACY (REGULATION) BILL, 2019
  9. Baby Manji Yamada vs Union of India & Anr, AIR 2009 SC 84
  10. Cabinet nod to surrogacy bill; now widows and divorcee women can benefit as well, 26 February, 2020, LiveMint, https://www.livemint.com/politics/policy/cabinet-nod-to-surrogacy-bill-now-widows-and-divorcee-women-can-benefit-as-well-11582720671346.html, last visited on 9 July 2020
Smitha Khandige
+ posts

Second year BALLB student at ILS Law College, Pune

Leave a Comment