Surrogacy in India & related Laws

Arryan Mohanty

Published On: March 04, 2022 at 20:27 IST

Introduction

Nature has endowed every woman with the beautiful ability to generate a life, and every woman treasures the experience of Motherhood. However, due to certain ‘Physiological Abnormalities’, some mothers were unable to give birth to their own children.

The desire to become a mother drives them to seek out other methods such as Artificial Reproductive Technology (ART), In-Vitro Fertilization (IVF), Intra-Uterine Injections (IUI), and others, giving hope to many infertile couples.

With advances in Medical Science and Technology, particularly in Assisted Reproductive Techniques that have revolutionized the reproductive environment with techniques like Donor Insemination, Embryo Transfer Methods, and so on, methods like “Surrogacy” are gaining popularity for a variety of reasons.

Kanupriya, India’s first IVF baby and the world’s second, was born 67 days later on October 3rd, 1978. Dr. Subhas Mukherjee’s efforts to hide two mates in Kolkata resulted in the birth of Kanupriya. The birth of this first IVF Indian baby sparked a firestorm of debate.

A ‘Surrogate Mother’, as the term implies, is a woman who is paid to bear a child for her employer and then returns the kid to them after birth. The word ‘Surrogate’ is a synonym for ‘Substitute.’

Surrogacy is a legal arrangement in which a woman (the surrogate mother) agrees to bear a child for the benefit of another person or people who will become the child’s parent(s) after delivery.

When Pregnancy is medically impossible, when Pregnancy risks are too dangerous for the intended mother, or when a single guy or a male couple wishes to have a child, people may seek a Surrogacy Arrangement.

Surrogacy is one of several assisted reproductive methods available. Surrogacy agreements may or may not include monetary compensation. ‘Commercial Surrogacy’ is defined as “receiving payment for the arrangement.”

Surrogacy’s legality and expense vary greatly among jurisdictions, which can lead to difficult International or Interstate Surrogacy Arrangements. Couples seeking a Surrogacy Arrangement in a country where it is prohibited sometimes go to a country where it is Legal.

Surrogacy is permitted in several nations only if no money is exchanged. Before getting into the technicalities of what makes Surrogacy legal or if it is legal in India, it is vital to have a basic understanding of what Surrogacy is and how the legal process works in different countries.

A layperson must first understand the fundamental concept of Surrogacy before getting into why it should be legal or illegal. For a variety of reasons, persons or groups of people want this form of agreement.

Some of the most compelling reasons to use a Surrogate are: when it is medically impossible for the parties to conceive; when there is a risk of danger or harm to the mother’s health during pregnancy; and when a single guy, or a couple of men, wishes to build a family.

Another important point to remember is that this form of contract may or may not include ‘Monetary Compensation. A circumstance in which a person is paid to be a Surrogate Mother is referred to as “Commercial Surrogacy.”

Types of Surrogacies

Traditional Surrogacy and Gestational Surrogacy are distinguished by the genetic origin of the egg. Gestational Surrogacy is more prevalent than Traditional Surrogacy, and it is less complicated legally.

• Traditional Surrogacy

Traditional surrogacy (also known as Partial, Natural, or Straight Surrogacy) is a type of Surrogacy in which the intended father’s or a donor’s sperm fertilizes the Surrogate’s egg. ‘Surrogate Insemination’ can take place either Naturally (Natural Insemination) or Artificially (Artificial Insemination).

When sperm from a donor is used, the result is a child that is genetically unrelated to the intended parents(s). The resulting child is genetically connected to both the intended father and the surrogate if the intended father’s sperm is used in the insemination.

In rare circumstances, Insemination can be done privately by the partners without the need for a doctor or physician’s assistance. In some Jurisdictions, ‘Prospective Parents’ who use donor sperm must go through an adoption process in order to obtain legal parental rights over the child. Many fertility clinics that offer Surrogacy can help the parties navigate the legal system.

• Gestational Surrogacy

Gestational surrogacy was first accomplished in April 1986. It is also known as Host or Complete Surrogacy. It occurs when an embryo developed using In Vitro Fertilisation (IVF) Technology is put in a gestational carrier, also known as a Surrogate.

There are various types of Gestational Surrogacy, and each one produces a child who is genetically unrelated to the surrogate:

1. The embryo is created using the intended father’s sperm and the intended mother’s eggs;
2. The embryo is created using the intended father’s sperm and a donor egg;
3. The embryo is created using the intended mother’s egg and donor sperm;
4. The embryo is created using the intended father’s sperm and a donor egg;
5. A surrogate is used to carry a donated embryo. Such an embryo may become available if people who have undergone IVF have leftover embryos that they donate to others. The child born as a result is genetically unrelated to either parent(s).

Surrogacy in India

Because of the relatively low expenses and easy access offered by Indian Surrogacy Companies, Surrogacy in India and Indian Surrogates has become increasingly popular among intended parents in Industrialized countries.

Patients paid between $10,000 to $28,000 for the entire package, which included ‘Fertilization, the Surrogate’s Pay, and Hospital Delivery of the kid. This was nearly a third of the cost of the treatment in the UK and a fifth of the cost in the US, when airplane tickets, medical procedures, and accommodations were factored in.

Surrogacy agreements provided medical, nutritional, and overall health care to Surrogate Mothers.

As India and other countries with Substantial Hindu Populations have become centers for Fertility Tourism, many debates have arisen over whether surrogacy is ‘Incompatible with Hinduism.’

T. C. Anand Kumar, an Indian Reproductive Biologist, claims that there is no conflict between Hinduism and assisted reproduction, despite the fact that Hindu scholars have not studied the topic extensively.

Others have backed up their position by citing Hindu Mythology, such as a story from the,

Bhagavata Purana that suggests surrogate motherhood: “Kansha, the wicked king of Mathura, had imprisoned his sister Devaki and her husband Vasudeva because oracles had told him that her child would be his killer.”

He slammed the child’s skull on the floor every time she gave birth. He was responsible for the deaths of six children. The gods interfered when the seventh child was created. They summoned the Goddess Yogamaya, who had the foetus transferred from Devaki’s womb to Rohini’s (Vasudeva’s other wife, who resided with her sister Yashoda in the cowherd settlement of Gokul across the Yamuna).

As a result, a kid conceived in one womb was incubated and delivered in a ‘Different Womb.’ In addition, Infertility is frequently related with ‘Karma’ in Hindu tradition, and is thus considered as a disease that must be addressed.

As a result, Medical Intervention for Infertility has gained widespread support among Hindus. Surrogacy and other scientific methods of Assisted Reproduction are therefore widely accepted among Hindus.

Despite frequently serving as surrogates for Western commissioning couples, Hindu women do not commonly employ Surrogacy as a treatment for Infertility. When Hindus use Surrogacy, it is more likely to be done inside the family circle rather than through anonymous donors.

In India, Commercial Surrogacy became legal in 2002. In India, however, only one form of Surrogacy surgery is legal. Traditional surrogacy, also known as Straight Surrogacy, is a process that begins with artificial or natural insemination and continues until the baby is delivered in India.

This ultimately means that the Practice of Traditional Surrogacy is illegal in India. In fact, it’s against the law. On the other hand, the first case of Gestational Surrogacy, also known as Host Surrogacy, occurred in 1986.

The process begins with the production of an embryo using IVF (In Vitro Fertilization) Technology, which is then implanted into the surrogate mother. The only type of surrogacy approved in India is Gestational Surrogacy.

Surrogacy is a contentious topic all over the world. A number of social, moral, and legal issues have been associated to this practice. When it comes to the legal stance, the law/legal standing varies from country to country.

Surrogacy is illegal in some countries, whereas it is legal in others. Some countries allow ‘Altruistic Surrogacy’ but not commercial surrogacy. The government of India approved the Draught National Guidelines for the Accreditation, Supervision, and Regulation of ART Clinics in India in 2002 in 2005.

India was a popular Surrogacy destination before Commercial Surrogacy was outlawed in 2015. Surrogacy’s economic impact in India is uncertain, however a study endorsed by the UN in July 2012 estimated the industry to be worth more than $400 million per year, with over 3,000 fertility clinics across the country.

Surrogacy for overseas ‘Homosexual Couples’ and lone parents was outlawed in 2013. In 2015, India’s government outlawed Commercial Surrogacy and only allowed embryos to be imported for research purposes.

Shortly after, in 2016, the Lok Sabha, India’s Lower House of Parliament, introduced and passed the Surrogacy (Regulation) Bill, proposing to allow only heterosexual Indian couples married for at least five years with infertility problems to access altruistic or unpaid surrogacy, effectively banning Commercial Surrogacy.

One of the most serious faults in the Surrogacy procedure is this. Surrogacy in India is regulated by either the Indian Council of Medical Research’s (ICMR) guidelines or Supreme Court or High Court rulings. Surrogate mothers suffer as a result of this legal void, as they are unable to exercise any rights in court or before any other authority.

According to The Guardian, a Surrogate Mother died as a result of ‘Inadequate Medical Care.’ According to conservative estimates, more than 25,000 children are currently born through surrogates in India each year, representing a $2 billion industry.

Domestic demand is growing, but as fertility rates fall elsewhere, at least half of these are “Commissioned” by foreign couples, mostly from the West. The majority of the industry is unregulated.

Surrogates and Baby Factories are vulnerable to misuse, according to India’s Medical Research watchdog, which prepared legislation more than two years ago but have yet to be presented to Parliament.

“She immediately suffered a convulsion and fell on the floor,” Dr. Manish Banker of Pulse Women’s Hospital and Dr. Yugal Kishore Upadhyay of IAS Medicare reported to come back on a patient. “We rushed her to the hospital for treatment. We performed an emergency caesarean section delivery because she was in distress.”

Cases Related to Surrogacy in India

Baby Manji Yamada v. Union of India case (2008)

In November 2007, a Japanese couple named Dr. Yuki Yamada and Dr. Ikufumi Yamada travelled to India in search of surrogates and met with a reproductive clinic in Anand, Gujarat, known for its Commercial Surrogacy Services.

The clinic arranged for the Intending Parents and the Surrogate Mother to sign a surrogacy contract. Ikufumi Yamada, the biological father of the child, contributed the sperm for the embryo’s formation, and the egg donor was an unnamed Indian Woman.

The embryo was put within the womb of the surrogate mother using the Gestational Surrogacy Process (Gestational Carrier). There were marital problems between the commissioning parents in June 2008, and the couple divorced.

Dr Yuki (Intended Mother) did not want to raise the child because she was biologically and legally unrelated to it, and the genetic father, Dr Ikufumi Yamada, wanted to adopt the child but had to return to Japan because his visa had expired.

After the divorce, Baby Manji was born on July 25, 2008, in a hospital in Gujarat, and Ms. Emiko Yamada, the child’s paternal grandmother, travelled in from Japan to care for her. Due to the Gujarat riots of 2008, there was a law-and-order crisis in the state of Gujarat the day after the baby was born.

Due to the rioting, the baby was transferred from Anand, Gujarat to Arya Hospital in Jaipur, Rajasthan, where she had contracted a variety of viral diseases.

The infant was breastfed by an Indian mother and remained in the hospital’s intensive care unit. The Anand Municipality issued a birth certificate to Manji Yamada in August 2008, which included the genetic father’s name.

The Supreme Court ruled in this case that the petitioner was entitled to any legal remedy available in the event of a grievance such as a passport, visa, or movement against a Central Government order.

The Commissions for the Protection of Child Rights Act of 2005 was designed to protect children’s rights and to expedite the investigation of crimes against children. If a decision needs to be made in this situation, it should be made by the Commission.

There was no need to discuss the respondent’s Locus Standi or whether or not bona fides were implicated. Because no such complaint had been filed in the Supreme Court regarding Baby Manji, the order ordering her appearance before the Court was void.

It was directed that anyone who has a grievance can bring it before the commission established under the statute. It was highlighted that the commission must consider a variety of important factors.

Baby Manji Yamada versus Union of India was the first case in which the Supreme Court made a ruling related to surrogacy, and it highlighted the significance of developing surrogacy regulation rules in India.

Jan Balaz v. Anand Municipality and Ors case (2009)

With the help of Anand Infertility Clinic Gujarat, a childless German couple has twins through a surrogate mother. Because German laws do not recognize Surrogacy as a form of parenthood, twins are not treated as German citizens.

So the German commissioning parents approached the Gujarat High Court to authorize their surrogate twin with an Indian passport, and the Gujarat High Court held that the child born through the surrogate mother will bear the surrogate mother’s name.

According to the court:

“Much more than the rights of the Biological Parents, Surrogate Mother, or Ova Donor, we are particularly concerned with the rights of two new born, innocent babies. The Surrogate Mothers and the Ova Donor’s emotional and legal relationships with the offspring are also crucial.”

Surrogacy legislation from Ukraine, Japan, and the United States were examined by the Court. Because India does not allow dual citizenship, if the children also have non-Indian citizenship, they will have to switch to Overseas Citizenship of India.

Balaz, the petitioner, stated in front of the Supreme Court that he will present his passports to the Indian Consulate in Berlin. He also agreed that a German NGO would respond to India regarding the children’s status and well being.

The Union of India responded by saying that it would make every effort to send the youngsters to Germany. If the Indian approaches the German authorities, they have promised to reconsider the issue.

The Balaz twins received their exit and entrance documents in May 2010, allowing them to leave India and travel to Germany. According to German law, their parents agreed to adopt them in Germany.

Rules, Laws and Statutes related to Surrogacy in India

Law Commission Recommendations

It was suggested that a law be enacted to regulate business surrogacy. In the 208th report, the LCI recommended that ‘Business Surrogacy‘ be restricted. Surrogacy was often used by outsiders due to a lack of a proper legal structure and proxy mother abuse.

They may have been persuaded to become a Substitute due to need and a lack of education. In 2015, the Indian Government issued a notice prohibiting surrogacy for foreign nationals.

The main Surrogacy (Regulation) Bill was introduced in the Lok Sabha in 2016 and passed after Parliament was dissolved. The Surrogacy (Regulation) Bill 2019 was introduced in the Lok Sabha on July 15, 2019, and approved on August 5, 2019.

The Law Commission had made the following observations:

• Surrogacy arrangements will continue to be governed by a contract between the parties, which will include all terms requiring surrogate mother’s consent to bear child, her husband’s and other family members’ consent, medical procedures for artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), and so on. However, such an arrangement should not be used for economic gain.
• A surrogacy agreement should include financial assistance for the surrogate kid in the event that the commissioning couple or individual dies before the child is delivered, or if the intended parents’ divorce and no one wants to take the child.
• A surrogacy contract must include life insurance coverage for the surrogate mother.
• One of the intended parents should also be a donor, because the biological relationship is the primary source of love and affection for a kid. Additionally, the risks of various types of child abuse, which have been observed in adoption situations, will be minimized.
• In order to have a surrogate child, the intended parent should be a donor if he or she is single. Otherwise, if biological (natural) parents and adoptive parents are not compatible, adoption is the only choice for having a kid.
• Without the requirement for adoption or even a declaration of guardianship, legislation should recognize a surrogate kid as the lawful child of the commissioning parent(s).
• Only the commissioning parent(s)’ names should appear on the surrogate child’s birth certificate.
• The right to privacy of both the donor and the surrogate mother should be respected.
• Surrogacy that is based on a woman’s gender should be forbidden.
• Abortion cases should be controlled solely by the Medical Termination of Pregnancy Act of 1971.

Surrogacy Regulation Bill

The Surrogacy (Regulation) Bill, 2019, has been introduced in Parliament. In India, the bill aims to limit Business Surrogacy. ‘Business Surrogacy‘, often known as ‘Lease a Womb,’ was legalized in India in 2002 to help grow the clinical travel sector. In addition, India quickly became the epicenter of surrogacy.

Due to considerations such as low costs and the lack of a strict regulation, Corporate Surrogacy has become a thriving industry in the country.

According to a recent assessment by the Confederation of Indian Sector, the replacement parenting industry in India is worth USD 2 billion every year.

A 2012 report commissioned by the United Nations estimated the Indian surrogacy sector to be worth $400 million a year, with over 3,000 fertility clinics spread across the country.

Regardless, the unregulated business of Surrogacy raised concerns about the unchecked abuse of Surrogate Mothers and their children, prompting the need for Legislation to govern Surrogacy in the Country.

Main Features of the Bill

• It mandates the establishment of Surrogacy boards at both the National and State levels in order to ensure effective regulation.
• It aims to make ethical Altruistic Surrogacy available to infertile Indian married couples aged 23-50 for the female and 26-55 for the male.
• Surrogacy would be available only to Indian couples who have been legally married for at least 5 years.
• Before proceeding with Surrogacy, the couple must get a certificate of essentiality as well as a certificate of eligibility. It further states that intending parents should not, under any circumstances, abandon the child delivered through Surrogacy.
• A separate eligibility criterion for the Surrogate Mother is also included.
• The intended couple’s Surrogate must be a close relative and a married lady with a child of her own.
• She should be between the ages of 25 and 35, have never been a Surrogate before, and be mentally and physically fit.
• Regarding a surrogate kid’s legal status, the Bill specifies that any child born through a Surrogacy treatment is the biological child of the intending couple.
• The new born child is entitled to all of the same rights and advantages as a natural child.
• The bill also aims to regulate Surrogacy clinics’ operations. In order to perform Surrogacy or associated treatments, all Surrogacy clinics in the country must be registered with the proper authority.
• Surrogate Mothers are protected in numerous ways under the bill. One of them is long-term insurance coverage that covers not only the pregnancy but also the postpartum period.
• It also states that when it comes to Surrogacy, no sex selection is permitted.

The Surrogacy (Regulation) Bill, 2020 has been passed by the Union Cabinet. Before adopting the Bill, the Cabinet approved all of the Rajya Sabha Select Committee’s recommendations.

The most current Bill is an updated version of a Draught Enactment that was approved by the Lok Sabha in August of this year. The Select Committee was made aware of the 2019 Bill.

Conclusion

Surrogacy is not just another way to have a child in the modern world; nevertheless, the process of Surrogacy has been practiced since ancient times. Surrogacy isn’t just for infertile couples or those who aren’t ready to start a family; anyone who wants to start a family can use it.

Because of the increasing number of surrogacy measures, it has an impact on the nation or the world in terms of promoting discussions about legal, moral, stringent, and ethical issues.

Infringement of common liberties occurs during the time spent on business surrogacy, yet Business Surrogacy protects the conceptive privilege of infertile couples.

Because India is becoming a booming sector for Surrogacy, it has created special complexities and multiple social, moral, and legal difficulties associated with surrogacy, necessitating the need for a specific enactment.

The Surrogacy Guidelines Bill comes at an excellent time when it is necessary to study the course of Commercial Surrogacy, which is rapidly becoming an untrustworthy enterprise for persons in India.

The measure primarily focuses on the denial of the abuse that occurs with the Surrogate Mother and the child that is born as a result of the Surrogacy. Surrogacy’s trajectory in a country like India has both beneficial and negative consequences.

When Surrogacy is used properly, it brings happiness to many childless couples who are unable to have children; nevertheless, when it is used carelessly or with the objective of ‘Commercialization,’ it has a negative impact on the general public.

Edited by: Tanvee Jain, Publisher, Law Insider

References

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