WHAT IS SURROGACY?
For couples who cannot have children, a surrogate mother is viable. Surrogacy refers to a contract between a couple and a woman where she carries a child for them in her womb. India has legalized commercial surrogacy, so people from all over the world come to India in order to do this.
There are two types of surrogacy;
Traditional Surrogacy: The child would be genetically related to the surrogate mother who would provide the egg and the intended father or the donor.
Gestational Surrogacy: The child is genetically related to the woman who donated the egg and intended father or sperm donor but not the surrogate.
India encourages Commercial Surrogacy in which a gestational carrier is paid to carry the child in her womb and she is paid a high amount of money by the couples who are infertile and can afford the cost involved to complete the dream of being parents.
THE BILL WHICH PROTECTS THE PRACTICE OF SURROGACY
The Surrogacy (Regulation) Bill, 2019, was passed by the Lok Sabha on August 5. The Rajya Sabha passed it as a bill on November 21, 2019. The Surrogacy (Regulation) Bill is an ethical right as it protects the exploitation of the surrogate mother and protects the rights of the child born through surrogacy. It seeks to constitute a national surrogacy board, state surrogacy boards, and appointment of appropriate authorities for regulation of the practice and process of surrogacy.
To begin with, the couple seeking surrogacy will have to provide conditions for wanting a child through surrogacy. They have to be Indians, but can also be non-resident Indians, persons of Indian origin, or overseas citizen of India. The surrogate needs to be married and have her child as some procedures of surrogacy may lead to infertility. Single women cannot opt to have a child through surrogacy, but exceptions have been made for widows and divorced women if they obtain a certificate of recommendations from the National Surrogacy Board. An insurance coverage for 16 months is proposed for the surrogate mother to take care of all her medical needs in the case of emergency conditions/complications. Surrogacy clinics cannot undertake surrogacy-related procedures unless they are registered with the appropriate authority.
Regulation of Surrogacy and Surrogacy Procedures
Section 4- Under the following purposes surrogacy is permitted- Infertile, Altruistic (Unselfish) purpose, No commercial surrogacy, No prostitution or sale of born surrogate child, for any other purpose or disease for which regulation made by the Board allows.
Sec 4(3)- Director or In-charge of clinic and specialist of the clinic are satisfied that the following conditions are fulfilled- Certificate is issued by a competent Authority after confirming the below conditions- 1) Certificate of infertility to the couple intending surrogacy by District Medical Board, 2) Order of Court passed by a Magistrate of the first class or above, regarding custody and parentage of the child, 3) Insurance of Surrogate mother and child. Eligibility certificate of surrogate mother by Appropriate Authority
1) Ever married woman having her own child (25-35 age). 2) Close relative (Not defined in this Act) 3) One surrogate birth in her lifetime (no limit for attempts) 4) Medical and psychological Fitness certificate of intending surrogate mother.
Eligibility of Intending couple Appropriate Authority
1) Age women 23 to 50 man 26 to 55, 2) 5 years of marriage, 3) Indian citizen, 4) No child before by any way (exception- child having life-threatening disease or disorder with no cure with certificate of district medical Board) Section 6: Written consent of the surrogate mother is necessary and she shall be told all the side effects of the birth. Section 7: No child shall be abandoned (Defined under Section 2(a) of the Act) by the intending parents after birth for any reason or defect or gender. (Child born by surrogacy shall be deemed to be a natural child) Section 9: No person shall in any way force the surrogate mother to abort the child. Protection of surrogate mother
Section 35 Prohibition of commercial surrogacy and exploitation of surrogate mother, child born. 1. No person or group shall undertake commercial surrogacy or provide any relating service. 2. No advertisement or publication for commercial surrogacy 3. No person shall disown abandon exploit in any form the child 4. No person shall exploit the surrogate mother 5. No person shall sell human embryo or gamete for surrogacy 6. No person shall import or help in import of human embryo or gamete for surrogacy These Acts are punishable with imprisonment of not less than 10 years and fine may extend up to 10 lakh. Section 36 - Punishment for contravention of any provisions of the Act Imprisonment of not less than 5 years and fine may extend up to 10 lakh. Section 37 Punishment for initiation of commercial surrogacy
Any person who seeks commercial surrogacy shall be punishable with imprisonment for a term which shall not be less than five years and with a fine which may extend to five lakh rupees for the first offense and for any subsequent offense with imprisonment which may extend to ten years and with fine which may extend to ten lakh rupees.
Penalty for Contravention of provisions of Act or rules for which no specific punishment is provided shall be punishable with 3 years + 5 lakhs continuing contravention 10,000 for every day.
Privacy Surrogate mothers have the right to privacy. Surrogates can be approached through an agency and that agency protects their privacy and their privacy is protected until all the parties meet together. Even then, the surrogate mothers have a right to privacy during the pregnancy until they are not doing anything which will cause harm to their fetus.
PRACTICE OF SURROGACY GLOBALLY
In the United States and Argentina, surrogacy policies are rigid and are decided by independent surrogacy committees. In the United Kingdom, Netherlands, Ireland, Denmark, Belgium, South Africa, Australia, Canada, and Greece, follow only altruistic surrogacy (Situations when a surrogate carries a child with no additional base compensation) is allowed. Commercial surrogacy is legally allowed in countries like Russia, Ukraine, and Thailand. In France, Germany, Spain, Sweden, Italy, and Iceland, surrogacy is banned in all forms.
CASE LAW PROTECTING SURROGACY
P.Geetha vs The Kerala Livestock Development(2014)
In the case of P.Geetha vs The Kerala Livestock Development(2014) the Apex Court contended that since the biological mother of a surrogate child does not go through the gestational period, she is not entitled to maternity leave, along with the maternity benefits.
Baby Manji Yamada vs Union Of India & Anr(2008)
Baby Manji Yamada vs Union Of India & Anr(2008) was filed under Article 32 and raised some pertinent questions. The case was filed by the grandmother of the surrogate baby, Manji. The father of the baby and his wife sought surrogacy in India and flew back to Japan after they succeeded. However, within nine months of this event, the couple separated and the wife did not want the baby, which wasn’t biologically hers. The British-colonial laws of India did not permit a single father to seek surrogacy in India and thus he could not take her back, making her the first surrogate orphan of India. Eventually, the Apex Court had to step in and grant the custody of the baby to the grandmother, who then took her back to Japan with her. However, the case raised some pertinent questions about the abandonment of surrogate children and the need for its regulation. It also brought to light the massive money-making business that the rent-a-womb capital of the world had under its wings.
CURRENT SCENARIO IN INDIA
Presently, India does not have any enforceable laws in place when it comes to the surrogacy process. Surrogacy was made legal in India in 2002.
There is no law to ensure a baby born via surrogacy in fact has parents — as in the case of Baby Manji vs Union of India, (Ultimately, Japan gave the baby a humanitarian visa and granted the grandmother custody, on behalf of her son.)
Similarly, there is also no law to ensure parents have legal rights to the child; a surrogate mother can keep the baby she gives birth to and be well within her rights.
And there is no law that ensures a baby born via surrogacy has a nationality — as in the case of the stateless twins born to a German couple via an Indian surrogate.
The current scenario of surrogacy in India definitely calls for regulation — for the sake of children, birth mothers, and commissioning parents — but surely there’s a way to make the rules more equal and accessible for all hopeful parents.
The Bill is clearly flawed as it violates;
Article 14 of the Constitution guarantees a fundamental right to equality. The Bill restricts the limited and conditional surrogacy to married Indian couples only and further disqualifies other persons, based on their nationality, sexual orientation, marital status, and/or age.
The Bill contradicts the law of adoption in India. Section 7 and 8 of the Hindu Adoption and Maintenance Act, 1956, and Section 57 of the Juvenile Justice Act, 2015, allows conditional adoption for single and divorced parents.
The bill puts forward very stringent conditions and requirements of eligibility. In order to want a child through this process you explicitly need to have conditions fulfilled or else the surrogacy won’t be granted.
Bill also ignores that the woman who agrees to be surrogates are mostly from an economically backward background and commercial surrogacy is their only source of income; banning that would result in deprivation of their livelihood. It would be very difficult for them to undergo reproductive labor without any compensation.