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Surrogacy In India

Another name for Surrogacy. Surrogate mother is the substitute for the genetic-biological mother. There are two types of surrogacy- traditional surrogacy and gestational surrogacy.
In traditional surrogacy, the child is thereby genetically related to both the surrogate mother, who provides the egg, and the intended father or anonymous donor.

In gestational surrogacy, the child is thereby genetically related to the woman who donated the egg and the intended father or sperm donor, but not the surrogate.

Commercial surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents.

Legal Insights (Evolution of Surrogacy Laws)

India legalised commercial surrogacy in 2002, the immense growth of surrogacy in India led to an impeccable growth of several commercial firms and firms claiming speciality in surrogacy law and guiding and assisting foreign tourists who came in search of having an Indian mother rent her womb for the blessing of a child. Such arrangements can be considered to be exploitative in nature as they are not only encouraging baby selling but also diminish the dignity of women's reproductive capacities and the inherent value of the children by modifying them. This paved way for the establishment of various foreign companies in India, assisting people coming round the globe and help them find a surrogate Indian mother, assisting the foreigners in paper work related to surrogacy and assisting the child in acquiring a passport and a visa to depart from the country.

The 228th report of Law Commission of India has recommended for prohibiting commercial surrogacy and allowing ethical altruistic surrogacy by enacting suitable legislation. One of the prime reasons for surrogacy services to bombard in India is poverty, which makes poor Indian women rent her womb for money or other essential commodities.

In 2005, the Indian Council of Medical Research (ICMR) issued guidelines to regulate surrogacy arrangements. The guidelines stated that the surrogate mother would be entitled to monetary compensation, the value of which would be decided by the couple and the surrogate mother. The guidelines also specified that the surrogate mother cannot donate her own egg for the surrogacy and that she must relinquish all parental rights related to the surrogate child.

Case Laws
# Baby Manji Yamada vs Union of India (AIR 2009 SC Page 84)
Baby Manji Yamada was a child born to an Indian surrogate mother for a Japanese couple who before a month of the child’s birth separated and the future of the child was left in dark. The biological father, Ikufumi Yamada wanted to take the child to Japan but the legal framework had no such provision for such a case nor did the Japanese government permit him to bring the child back home. In the end, the Supreme Court of India had to intervene and the child was allowed to leave the country with her grandmother. The biggest impact of the Baby Manji Yamada decision has been that it spurred the government of India to enact a law regulating surrogacy.
The Supreme Court of India in 2008 held surrogacy permissible in India after Manji’s case which increased the international confidence in going in for surrogacy in India.

# Jan Balaz Vs Anand Municipality
Gujarat High Court ruled that the birth certificate of the child born through surrogacy will carry the name of the surrogated mother as against the biological mother and the child would be granted a passport of India which certifies him as the Indian Citizen and the surrogate mother in turn had to give the child to German couple in adoption, who had sought the sercices of Indian surrogate mother.

The Supreme Court is still seized of an appeal against this decision and during its hearing Supreme Court felt a grave need on the subject which made way for the proposal of the bill of Parliament.

All these cases have provoked academic interest and has brought the surrogacy ban bill into existence that rules out surrogacy rules for foreign citizens approaching Indian mother.
The ban is already in place through a letter dated 28th September,2015 from ICMR to all clinics in India that directs them not to assist foreign couples on having a child through an Indian surrogate mother.

The Surrogacy Bill

The Surrogacy (regulation) bill, 2016 was introduced in Lok Sabha on 21st November, 2016 and on 12th January, 2017 it was referred to standing committee. Thereafter on 10th August 2017 the committee gave its report on the same to Lok Sabha and on the basis of that report Lok Sabha passed the bill on 19th December 2018.

The Surrogacy bill, 2016 focuses on prevention of commercial surrogacy and promotion of altruistic surrogacy. The bill also safeguards the surrogate mother and child from exploitation. Surrogacy is a way by which an infertile married couple who are eligible in accordance with the provisions of the bill can now bear a child with help of a surrogate mother eligible as per provisions of the bill. However, the surrogate mother will not be given any monetary benefit or compensation for renting her womb to intended couple except her medical and insurance expenses during pregnancy.

The proposed legislation provides for registration of surrogacy clinic and establishment of National and State surrogacy board and Appropriate Authority.

The Surrogacy (Regulation) Bill, 2016 passed by Lok Sabha provides for the following:

Section 2 provides for:
Altruistic surrogacy altruistic surrogacy means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative.

Commercial surrogacy commercial surrogacy means commercialization of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother;

Couple as legally married Indian man and woman above the age of 21 years and 18 years respectively married Man and Woman.

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;

Important Provisions of Bill

Section 3 of the Act provides for:
1) Compulsory Registration of Surrogacy Clinic,
2) No surrogacy at other place than registered clinic, no Specialist or medical practitioner shall perform commercial surrogacy
3) No Specialist or medical practitioner to perform without qualification
4) No promotion or aid or advertisement
* of commercial surrogacy in any way by clinic or any person
* That encourage a women to be a surrogate mother
* Seeks a women to Act as a surrogate
* Implies the willingness of a women to become a surrogate
5) No abortion without consent of mother and Appropriate Authority (such authorisation should comply with the provisions of the Medical Termination of Pregnancy Act, 1971)
6) NO storage of Human Embryo or Gamete is allowed for surrogacy purpose.

Regulation of Surrogacy and Surrogacy Procedures

Section 4- Under 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 Board allows.

Sec 4(3) Director or In-charge of clinic and specialist of clinic are satisfied that following Conditions are fulfilled-
Certificate is issued by 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 child,
3) Insurance of Surrogate mother and child.

Eligibility certificate of surrogate mother by Appropriate Authority

1) Ever married woman having own child (25-35 age).
2) Close relative (Not defined in this Act)
3) One surrogate birth in her life time (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 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 fine which may extend to five lakh rupees for the first offence and for any subsequent offence with imprisonment which may extend to ten years and with fine which may extend to ten lakh rupees.

Section 38
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.

Section 39

Presumption in case of surrogacy

Notwithstanding anything contained in the Indian Evidence Act, 1872, the Court shall presume, unless the contrary is proved, that the woman or surrogate mother was compelled by her husband, the intending couple or any other relative, as the case may be, to render surrogacy services, procedures or to donate gametes for the purpose other than those specified in clause (ii) of Section 4 and such person shall be liable for abetment of such offence under Section 37 and shall be punishable for the offence specified under that Section.”

The Bill is yet to be introduced in Rajya Sabha and after the accent of president the bill will become an Act.

Provisions of Surrogacy (Regulation) Bill 2016:

# The bill is applicable to all the states of India except Jammu and Kashmir. The bill provides the constitution of National Surrogacy board and State Surrogacy board for regulation of surrogacy process.
# The bill is providing surrogacy to only Indian citizens. Foreigners, NRI, PIOs are not allowed.
# Homosexuals and Single parents are also not allowed for surrogacy and bars the couple who already have children.
# The bill provides that women can only surrogate once in her lifetime and her age should be in between 25 to 35 years....
# The couple who intend for surrogacy should be aged between 23 to 50 years and married for at least 5 years.
# The bill also provides provision for the custody of the child to be born which The bill contains the provision of penalty and imprisonment if the person violated the law.

National Surrogacy Board

The board consists of:
Chairperson – Minister in-charge of Ministry of Health and Family Welfare Vice Chairperson - Secretary to the government of India in-charge of Department dealing with surrogacy matters.

Members – Three women members of Parliament, Three members of Ministries of Central government from Women and Child Development, Legislative Department in Ministry of Law and Justice and Ministry of Home Affairs not below the rank of Joint Secretary.
Director-General of Health Services of Central Government.

National and State Surrogacy Boards

The central and state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSBs), respectively. Functions of the NSB include:
(i) advising the central government on surrogacy policy
(ii) laying down the code of conduct of surrogacy clinics; and (iii) supervising the functioning of SSBs.

Functions of the SSBs include:

(i) monitoring the implementation of the provisions of the Act
(ii) reviewing the activities of the appropriate authorities functioning at the state/union territory level.

Authorisation for termination of pregnancy

Approval for termination of pregnancy from the appropriate authority
Under the Bill, authorisation of the appropriate authority is mandatory for an abortion to be done during the period of surrogacy. The authorisation also has to comply with the provisions of the Medical Termination of Pregnancy (MTP) Act, 1971, which specifies the grounds for termination of pregnancy. However, the Bill does not specify the time period by which such authorisation for abortion has to be given.

Intending couple has no say in the consent to abort a surrogate child

An abortion of the surrogate child requires the written consent of the surrogate mother and an authorisation by the appropriate authority. The Bill further states that no person may force the surrogate mother to abort the foetus. However, after the birth, the child is considered the biological child of the intending couple and they are responsible for bringing up the child. If a child being born out of surrogacy arrangement is at the risk of physical or mental abnormalities, under the Bill only the surrogate mother’s consent will be required to abort the child. The intending couple will have no role in this decision. Under the provisions of the MTP Act, 1971, abortion in such cases is allowed with the consent of the ‘pregnant woman’.

The complexity in the case of surrogacy is that the surrogate mother (who is carrying the child) is different from the intending couple who has to bring up the child.

Presumption that the surrogate mother was compelled to be a surrogate
If a surrogate mother renders surrogacy services other than those permitted under the Bill, it shall be presumed that she was compelled to do so by:
(i) her husband;
(ii) the intending couple or any other relative.
(iii) They will be liable for abetting the offence of initiating commercial surrogacy. The burden of proof is on these parties to establish that they did not compel the surrogate mother. Further, the Bill does not define ‘relative’ for this purpose.

It is unclear why the Bill seeks to reverse the burden of proof from the prosecution to the defendants.

Ordinarily, the burden of proof is on the prosecution to prove that a certain wrongful act was committed by the defendant, and not on the defendant to prove that he did not commit that act.

In some laws, where the burden of proof is reversed, there are typically some circumstantial conditions which the prosecution needs to prove in order for the court to presume that the defendant has committed the crime.

Storage of embryo or gamete for surrogacy not allowed

The Bill prohibits storage of embryos and gametes (unfertilised egg and sperm) for the purpose of surrogacy. This differs from the current ICMR guidelines (2005) which allow the storage of embryos for a period of five years. The prohibition on storage of egg or sperm may have adverse health implications for the intending mother.

Typically, for a surrogacy, the eggs are extracted from the intending mother and are implanted in the surrogate mother’s uterus. The success rate of one implantation is below 30%, therefore, multiple implantation attempts may be required.

To ensure availability of eggs for the multiple attempts, extra eggs are extracted and stored. Note that the intending mother needs to undergo extensive hormonal treatment for this extraction.
Repeated stimulation for extraction of eggs leads to the risk of Ovarian Hyperstimulation Syndrome (OHSS) for the intending mother. In some rare cases, OHSS may lead to complications like blood clots and kidney failure.

Views of Author
The Bill comes at the time when there was a huge demand for a legislation to cover the subject of commercial surrogacy. The Bill focuses on prohibition of potential exploitation of the surrogate mothers and children born through surrogacy, and preventing the commercialising of surrogacy. The Bill provides for a 10-month period of which would be considered as gestational period, so as to ensure that no inconvenience is caused to the surrogate mother or to the intended parents.

Disadvantages of the Bill
# While the advantages of the Bill are limited, the disadvantages of the same are multifaceted. The right to life, under Article 21 of the Constitution enshrine the right to reproductive autonomy, inclusive of the right to procreation and parenthood. It is not the domain of the state to interfere with such rights as the constitute the fundamental rights. It is the prerogative of the persons to decide the mode of parenthood, that is, whether to have child born naturally or by means of surrogacy.

# The Bill allows for surrogacy only for married couples and to that extent, excludes the people belonging to the LGBTQ community, live-in couples, and single, divorced or widowed parents, thereby, criminalising their exercise of reproductive autonomy in this regard.

# 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. This shall not stand the equality test or the test of reasonable classification under the Article.

# 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 also limits the autonomy of married couples and potential surrogates to a huge extent, by means of stringent conditions and requirements of eligibility certificates. The heavy onus laying prerequisites such as childlessness, five years of non-conception for intending parents, the surrogate being a close relative, amongst others, are prone to criticisms

Besides this, the Bill blatantly ignores the fact that the women who opt for being surrogate mothers are from economically vulnerable backgrounds and for them, surrogacy is a source of livelihood. A complete ban on commercial surrogacy deprives them of their livelihood and rather, expects them to undergo reproductive labour without any compensation.

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