Surrogacy: An Outlook through Law

Dhairya Dhawal & Guru Prasad, ICFAI University, Dehradun.

Introduction

In this paper, we would like to describe surrogacy in India but don’t describe this in other countries. Nature has given a gift to women to bear a child and to experience a feeling of motherhood. Unfortunately, some women deprived been of having a child due to a medical condition and they opt for some other method and one of them is surrogacy. 

Surrogacy is an agreement in which a woman carries a pregnancy of other women who will become parents of the newly born child. A woman who carries a pregnancy is called a surrogate mother and the gene is neither of her nor her husband. This method seems to be important for infertile couples, it’s beneficial only when commercial. Surrogacy came as an alternative when an infertile woman is not able to bear a child. Before passing of Surrogacy Bill 2016, commercial surrogacy was legal but now it’s illegal since it is a ban after the act passed. The cause behind the passing of the bill was to stop the exploitation of surrogate mothers. The mediocre promote this practice since they receive the benefit, the illiterate women were forced by their husbands. It seemed that they had no right upon their bodies. The Act states that only a close relative can be a surrogate mother. India was an attractive hub for an infertile couple since it cost one third as compared to America, England. The surrogacy is mainly of two types: 1. Traditional-This method is less popular in which surrogate mother is impregnated with semen from sperm donor the child is likely to relate with surrogate mother .2. The gestational-this method is more popular which consists of IVF [In Vitro Fertilization] means eggs of the intended mother. 

Background of Surrogacy 

The history of surrogacy is deep-rooted long back in India. Kanupriya alias Durga who was born in Kolkata on October 3rd, 1978 was the world’s second and India’s first IVF (In Vitro Fertilization). Since then the growth of assisted reproductive technology has developed precipitously. Infertility is an impediment, it is such a medical condition that cannot be overlooked. In the view of society especially when the society is said to be a patriarchal society, it seems a major concern. An old notion of our society is that a wife gets the respect of the family and society if she is a mother of a child, basically in this manner her husband’s masculinity and sexual potency is proved and hence the family line continues. The concept of surrogacy could be very viable in the field of medical science, but it is also very controversial around the world. The perception varies from countries to countries so as from culture to culture. It is provocative morally as well as socially. 

The purpose of surrogacy has changed in the last three decades. Now due to the changed perspective of the society in terms of careers and ambition, women tend to postpone childbearing and often the couples opt for surrogacy. The advancement in medical science and technology, especially in assisted reproductive methods, like donor insemination and embryo transfer methods, have let to an increase in the popularity of surrogacy. It is not wrong to say that since the agreement of financial exchange in terms of money or any kind in exchange for a surrogate child, it looks like trade and the child as a commodity. 

To understand the landscapes of surrogacy in India, as briefly addressed before, India is rapidly becoming the most popular country for ‘fertility tourists’, which is due to a number of interrelated factors. As per a report published in 2002 by the Confederation of Indian Industry (CII), the study revealed that India has to develop a medical tourism sector. During these years, fertility tourism increased in number. At that time, the reproductive segment of the Indian medical tourism market is valued at more than $450 million a year. 

As an increasing number of childless couples from overseas come to India, the complications in legality also started arising. Many foresee hurdles after the child is born because there is no law to control or regulate it. There have also been problems with claiming parenthood. In rare cases, the surrogate mother has refused to relinquish the child. Though the Indian Council of Medical Research (IMCR) issued guidelines regarding this matter, those guidelines did not hold any legal validity. 

Viewpoint on Surrogacy 

The women who agree to be a vessel for the surrogacy are usually poor, mostly from the backward region. Thus it is important to understand the reason behind taking such steps. These women generally do not have many career prospects as they are predominately uneducated, often engaged in casual work, sometimes migrants in search of better job opportunities and living in a slum area with inadequate facilities. But being uneducated or poor is not so conclusive reason but there could be many other reasons. According to the Indian Council of Medical Research (ICMR)1, there is around twenty thousand small and big assisted reproductive technology clinic in the country. This is an approximate datum available with the IMCR, many with no adequate infrastructure for carrying such operations. One cannot overlook the possibility of exploitation of women ready to be a surrogate mother. 

Now that surrogacy is a boon for the infertile couples, this led to upsurge two types of view. The one who advocates for surrogacy and the other is against for surrogacy. Those who are in favor of surrogacy support surrogacy as it is beneficial to both parties as the two women get what they need to have. It is often said that in the surrogacy arrangement ‘the barren gets a baby, the broke gets a bonus’. 

Another view could be that the right to procreate is an important right. The liberal argument for surrogacy is a matter of autonomy and free choice. Certainly with this kind of arrangement as long as they do not harm others, the one can do what they want. Certainly procuring baby and providing financial aid in exchange does not seem unethical. 

Due to complicated adoption regulations in many countries, people often tend to go to different countries to escape such regulations and thus creating a vast black market. It is thus better to acknowledge such a market in order to control and regulate it. 

The views against surrogacy are more punitive and critical in the case of women conditions. According to Kembrell (1988), the practice of surrogacy exploits women in every aspect, economically, emotionally and physically. A very important factor is that those women who get involved in such an arrangement, they do so because they are in desperate need of the money and to maintain their family. Often the agents are involved and contracts of questionable legality. 

As long as the condition of a woman who is agreed to become a surrogate mother, her questions of rights also arise. Entering of a woman in this context is therefore far from liberating, but rather degrading. 

Analysis under Indian Prospective Law 

Commercial surrogacy is banned in most developed countries including Australia, UK, Canada, France, Germany, Sweden, New Zealand, Japan and Thailand.2 Like any other developed country, the bill bans it in India too. India, in this context, often known as a reproductive tourism destination. The usual fee is used to be around $25000 to $30000 in India, one-third of that in developed countries like the USA.

The “Surrogacy (Regulation) Bill, 2016”, was introduced in Lok Sabha on the 21st day of November 2016 which was referred to the Parliamentary Standing Committee on Health and Family welfare on 12th January 2017. The major change in the proposed legislation ensures effective regulation of surrogacy, prohibiting commercial surrogacy and allowing altruistic surrogacy to the Indian infertile couples. Once in effect, the Act will regulate the surrogacy services in the country and will control the unethical practices in surrogacy, prevent commercialization of surrogacy and will prohibit potential exploitation of surrogate mothers and children born through surrogacy.

With the flux efforts in regulating surrogacy in India, there are various questions arising from the Bill itself. Various subjects and matters are needed to be clarified because the subject matter is of human dignity of a woman and a child who cannot be objectified and treated as a transactional article. Under the proposed Bill only legally married Indian men and women above the age of 21 years and 18 years respectively can opt for the method of surrogacy. Somewhere this definition seemed to be narrower when the current mindset of the country is changing. The question of parenting in case of couples in live in relationships when either or both is found to be infertile and wish to have a child or those who wish to be a single parent and probably very unappealing for gay couples or so. These incidents have already prevailed in the society when there is nothing in the legislature on surrogacy. Now with the proposed Bill, the contention on such areas is obvious. Though the legal age of the marriage of male and female is 21 years and 18 years is not a matter of debate but the duration of marriage for intending couple those who would opt for surrogacy must not less than 5 years as per the proposed Bill. To anticipate for 5 years for opting surrogacy by a married couple has been declared unscientific 5 as to why should a couple wait for five years in case they have married after 40 years of age or even later. 

The Bill proposes that no person, other than a close relative of the intending couple, shall act as a surrogate mother and be permitted to undergo surrogacy procedures and also that woman must have been ever married and having a child of her own and must be between the age of 25 to 35 years on the day of implantation. The lawmakers here drawing lines to make clarity as who could be a surrogate mother. The point to notice is that what kind of relations come under the term ‘close relative’. This seems very impractical and can catch the orthodox mindsets of society. This measure might be seen as restrictive to the commercialization of surrogacy but also this could be proved very difficult for intending couples to find a suitable relative. Finding women from within the close family willing to be surrogates will not be easy at all. In such a condition, many infertile couples are likely to find themselves in distress. The morality of society will be a great hindrance in such a scenario. The broader prospect of such harsh provision can affect the relationship of couples intending for surrogacy and such law might even lead to breaking up of marriages. This may lead to an increase in second marriages because if a couple would not find such a suitable woman within their close relation, some couples are likely to break up. 

The Bill also proposes that the intending couple has not had any surviving child biologically or through adoption or through surrogacy earlier who are wishing to opt for surrogacy. This means the parents have their own child or have an adopted one who will not be eligible to go for surrogacy. It is not very hard to comprehend that this kind of measure are very welcoming if this is viewed with the increasing rate of population. Though India is the country that follows the one-child policy it is the need of the hour. A view can be taken from here that the lawmakers must have thought that no couple must take advantage of and initiate commercialization of surrogate babies. 

According to the Bill, only Indian nationals are allowed for altruistic surrogacy. Foreign nationals or even NRIs will not be allowed. This will definitely affect the health sector of the country as India has now become the most preferred choice for couples from overseas. The provision is welcoming in regards to prohibiting commercialization of embryos and any kind of heinous intention of people. But what about those foreign nationals and NRIs having clean motive and a wish to be blessed with a child. In a view, it would be more appropriate if any other precautions should be checked instead of such a ban. 

Conclusion 

It is clear to make an outline that the subject of surrogacy does involve various disagreements. It is hard to make out the direct impact on the primary unit of society. The Bill does mention various provisions for regulating the vast market of surrogacy in India. Although there are many points that needed to be clarified. India needs a practical approach by legalizing altruistic surrogacy and prohibit commercialization of surrogacy but a ground check on the mindset of the society is also crucial. The parties in the arrangement of surrogacy should be protected and shall all have certain rights and duties. A dynamic legislative involvement is required when anything going on ethical. 

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