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Womb’s For Rent: Legality Of Surrogacy In India

When money is exchanged for pregnancy, some believe in newborn while others, come close to organ selling, or even baby-selling -Thomas Frank

Infertility as a medical condition serves to be a huge impediment in the overall wellbeing of couples and cannot be overlooked especially in a country like India which follows a patriarchal society. A woman is respected as a wife only if she becomes a mother of the child so that her husband's masculinity and sexual potency is proved and the lineage continues.

The parents construct the child biologically, while the child constructs the parents socially. The problem however arises when the parents are unable to construct the child through the conventional biological means. Infertility is seen as a major problem as kinship and family ties are dependent on progeny. Whereas surrogacy came as a solution for infertility and also made a way for shady dealings on baby selling.

Surrogacy In India

India has secretively become a booming center for the fertility market in the name of medical tourism, unexpectedly it also mounting year by year. In India since 1978 the Assisted Reproductive Technology (ART), has been used in 2,00,000 clinics (approx.) across the country were performing Artificial Insemination, In vitro fertilization (IVF) and Surrogacy. India's first IVF (in vitro fertilization) baby, Kanupriya alias Durga was born in Kolkata on October 3, 1978 about two 8 months after the world's first IVF boy, Louise Joy Brown born in Great Britain on July 25, 1978. Since then the field of assisted reproductive technology (ART) has developed rapidly.

India opened up to commercial surrogacy in 2002 ad handful of countries - including Georgia, Russia, Thailand and Ukraine - and a few U.S. states where Indian women were paid to carry another's child through in-vitro fertilization (IVF) and embryo transfer. The U.N backed study in July 2012 estimated the surrogacy business making a turnover more than $400 million a year, with over 3,000 fertility clinics across India. Clinics charged the indenting couples between $10,000 and $28,000 for the complete package, including fertilization, the surrogate's fee, and delivery of the baby at a hospital

Traditional And Gestational Surrogacy

Surrogacy means the process of carrying and delivering a child for another person1. Thus surrogacy is an arrangement in which a surrogate mother is a woman who carries a child for someone else, usually an infertile couple. There are two different types of surrogacy namely traditional surrogacy and gestational surrogacy. In "traditional surrogacy" (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female "gestational surrogacy" (also known as the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother2.

Transnational Eyes On India

The cost of surrogacy process and surrogate is also cheaper in India, even there is bare for legislation in regulating surrogacy, made a clear way for foreigners and outsiders to get the baby through agencies in and around the country. Hence, the wealthy indenting couples or single parents procure these types of surrogacy process for attaining the baby under an agreement between the agency, intending couples, and surrogate mother.

There are several agencies were performing this process using (ART) with the help of Artificial insemination clinics in India. For example in the United States, the cost of surrogacy is estimated to be more than $100,000.00. The surrogacy cost in India is about $47,350 including the compensation given to the surrogate mother which is decided by the clinic. The surrogate mother depends on it. As it is more than that they would make in a year of ordinary labor.6

In Akanksha infertility clinic in India, make payments to the surrogate mother in installments of $50 every month during pregnancy and $500 at the end of the trimester, remaining which would be delivered upon successful delivery only. As there is no legal framework for surrogacy many exploitations is also been happening and the surrogate mother turns to be a victim in benefiting the outsiders.

Exploiting Destitute Women

Surrogacy exploits women mentally and physically. Women in desperate situations in order to make extra income and protect their family who has no other means of making ends meet opt for surrogacy. Most of the women are illiterate and are not being educated on the process and steps of surrogacy.

The verdict by the apex court in case of (retired) Justice Puttaswamy, recognizes the constitutional right of women is their reproductive choices under article 21 of the constitution of India which restricts the surrogacy of women when they do it for the desperate need of money. The right of women includes her privacy, dignity, and bodily integrity 3.

Further, in the Telangana fertility center (Padmaja fertility center at Bhongir), more than 50 surrogate mothers were found confined in buildings adjacent to their center. They were being held until the birth of the child. This restricts their movement and even though they were provided with food and shelter, confining those (about 50 persons) in a room is a way of exploiting their mental and physical health.

Legal Framework In 2005, the government approved the 2002 draft of the National Guidelines for the Accreditation, Supervision and Regulation of ART Clinics in India and the same were not presented in parliament. Then, In August 2009, the 228th law commission has been constituted and headed by a Chairman Hon'ble Dr. Justice AR. Lakshmanan and with a committee members for detail analysis about and surrogacy practices and recommended legal framework for parliament in making special legislation for surrogacy in India. The Law Commission recommended many objects like to adopt a pragmatic approach by legalizing altruistic surrogacy arrangements and prohibit commercial4and procedures for surrogacy, and also the steps taken to control surrogacy arrangements.

The following observations had been made by the Law Commission:
  • Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring the consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying a child to full-term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

  • A surrogacy arrangement should provide for financial support for a surrogate child in the event of the 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.

  • A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

  • The legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

  • Sex-selective surrogacy should be prohibited.

Proposed Legislation

In pursuant to the law commission report and National Guidelines for the Accreditation, Supervision, and Regulation of ART Clinics, the NDA the government drafted The Surrogacy Bill 2016, and the same was lapsed owing to the adjournment sine die in the parliament. Then, the bill was reintroduced as The Surrogacy Bill 2019 in Lok Sabha and successfully passed. Currently the bill is required to be passed by the Rajya Sabha, the upper house of the Indian parliament, and presidential assent before it becomes an act and thereby a law.

Statement And Object Of The Surrogacy (Regulation) Bill 2019

India has emerged as a surrogacy hub for couples from different countries for the past few years. There have been reported incidents of unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy, and import of human embryos and gametes. Widespread condemnation of commercial surrogacy in India has been regularly reflected in different print and electronic media for the last few years.

The Law Commission of India has, in its 228th Report, also recommended for the prohibition of commercial surrogacy by enacting a suitable legislation. Due to a lack of legislation to regulate surrogacy, the practice of surrogacy has been misused by the surrogacy clinics, which leads to rampant commercial surrogacy and unethical practices in the said area of surrogacy the Surrogacy.

In the light of the above averments, it had become necessary to enact a legislation to regulate surrogacy services in the country, to prohibit the potential exploitation of surrogate mothers and to protect the rights of children born through surrogacy5.

Special Provisions In The Surrogacy Bill 2019

As stated supra the bill's aim to prohibit commercial surrogacy, it made a restriction in surrogacy that the intending couples and a gestational carrier should an Indian resident not a foreigner. Many studies say more than 50% of surrogacy arrangements are made for the benefit of outsiders on consideration of money in return. Section 3 (e) of the Surrogacy Bill2019 says the surrogate mother should be a close relative of the intending couple and should be an ever-married woman having a child of her own 6.

The clinics which are registered under the act only can perform the surrogacy arrangements after getting the eligibility certificate from the appropriate authority mentioned in Act. The indenting couples and surrogate will be undergoing medical infertility test in initiating the surrogacy, only the infertile Indian couples can be only permitted to proceed with IVF.

Especially this act introduces the National Surrogacy Board and State Surrogacy Board, which empowered to deal with the dispute arise in the process of surrogacy. The Board consists of the Minister of Health and Family Welfare as chairperson, Secretary to Government, three women Members of Parliament in the National board and State Surrogacy Board with Minister of Health and Family Welfare as chairperson and other authorizes mentioned in the act as members on the board.

The act imposes punishment for the clinics which serve as an agency for surrogacy and also punish the persons forcing a surrogate mother to accept the same. The board has numerous powers to punish under the act, when any petitions filed before the authorities by the victims of surrogacy.

View Of Surrogate Mother

The ban on commercial surrogacy aims to protect mothers from exploiting their bodies. However, some surrogate mothers feel such a ban would actually hurt them more. Since most of them are unemployed and desperate. They fear that their income would no longer be from surrogacy which has given them more money than they would have gotten by doing 10 years of domestic labor because most of the surrogate mothers are illiterate. This is an unfortunate situation but must also not be neglected, the government must also ensure well-being and employment issues for their sustainability.

Tone Of Common Man

Surrogate mothers are considered as a mother by law and nature. She is someone who nurtures and carrying a baby for 9 months, she creates a life bond with her child even if the child belonged to other. Several questions may arise to the person who reads, like what if she wants to keep the baby after birth.

Then, what may be the remedy for surrogate mother who wants to revoke or discharge the contract of surrogacy with the inclusion of all her dignity and bodily integrity. Whether the surrogacy bill provided proper rehabilitation for surrogate mothers. Hence the government and upper house of parliament may consider the issues before approving the bill.

  1. The Black's Law Dictionary
  2. Baby Manji Yamada Vs. Union of India & Another (2008) 13 SCC 518
  3. Justice K.S.Puttaswamy(Retd) vs Union Of India(2017)10 SCC 1
  4. The 228th Law Commission Reportpage 25 (Para. 4.1)
  5. The Surrogacy Bill 2019 Page. 21
  6. Ibid.

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