Surrogacy Laws in India

Author - Anubhav Maheshwari

“Instinct of motherhood is the most powerful desire that exists in all the living creatures that include all humans and animals.”[1]

As per Ancient India Philosophy, basic purpose of human life is to regenerate and create species of their own kinds. All living beings propagate through a transition process, in which transfer of Genes (Traits) to next upcoming generation take place. This propagation and birth of Offspring depends upon various factors which lead to survival of new born.

The incapacity in propagation is called as Infertility. Infertility is not dangerous for life of an Individual but it leads to a devastating impact on life of that individual, unable to fulfill role as a biological parent. As India is a country with very strong desire of child specially a SON and a very stable family system, therefore this Infertility is seen as a social stigma. This problem has been overcome up by technique of Surrogacy.

Defining Surrogacy-

Surrogacy is a science advancement in which womb of a woman is used for the reproduction of a child for another woman. Surrogacy has provided an opportunity for couples incapable to propagate biologically or through artificial means but still wish to have child biologically related to them.

As per Collins Dictionary – “Surrogacy is an arrangement by which a woman gave birth to a baby on behalf of woman who is physically unable to give birth, and then give baby to her.”[2]

As per Black Law Dictionary – “Surrogacy is a process for carrying and delivering a child for another person.”[3]

Surrogacy is also defined under The ART Bill as “ An arrangement in which woman agrees for pregnancy, with the help of Assisted Reproductive Technology, where gamets doesn’t belong to her or her husband and later on hand over the child to person/persons for whom she is acting as a Surrogate.”[4]

The woman carrying the child of another woman is called as a Surrogate Mother. The word is derived from word ‘Surrogates’ which in Latin means “Substitute”. She agrees with the couple incapable to fertile, to born a child for them and hand it to the after birth.

Different Types of Surrogacy –

Surrogacy can be classified under two heads i.e. Surrogacy Practices and Surrogacy Arrangements (Financial Arrangement).

· Surrogacy Practices –

In a surrogacy, woman carries a child upto a period and then grant baby after delivery to Intended parent(s). Depending upon the practice used for Surrogacy it is of two main types i.e. Gestational Surrogacy and Traditional Surrogacy.

Ø Traditional Surrogacy – In this type of surrogacy, women get inseminated artificially with the male (father) sperm. In this method surrogate mother is genetically connected with the child because her egg was fertilized by the Father’s sperm. It is usually less common but it is generally less costly.[5]

Ø Gestational Surrogacy – In this process, fertilization takes place through In Vitro Fertilization method. This takes place with the eggs of a egg donor or intended mother and not of surrogate mother. This means that surrogate mother is not related genetically to the child in any way. This process has more efficiency and hence more popular in present time.[6]

· Surrogacy Arrangements (Financial Arrangement) –

Surrogacy can be divided into two major types i.e. Altruistic and Commercial Surrogacy based upon financial assistance given to Surrogate Mother by Intended parent(s).

Ø Altruistic Surrogacy – In this arrangement, Surrogate mother does not receive any financial reward for her pregnancy except necessary medical expenses. The surrogate mother is generally a close relative/friend of intended couple. Under this arrangement there are various complications which may arrive in future.

Ø Commercial Surrogacy – In this type of arrangement surrogate mother is paid a pre-determined financial compensation above the basic necessary medical expenses.[7]

Scenario in India -

India is a Patriarchal Society and a woman only get respect when she becomes mother of a child, as this shows sexual potency of her husband. Infertility in India is seen as a social stigma and also a major problem as family and social ties are somewhere dependent on progeny. Therefore infertility is both a medical condition as well a social problem which effects overall well-being of couples.

With medical advancements the problem of infertility, in which a woman is incapable to give birth to her own baby was somewhere solved. In year of 1978 India’s first IVF baby Kanupriya Agarwal (Durga) was born in Kolkata.[8] This was the proof that the ART (Assisted Reproduction Technique) methods of reproduction were necessary for well-being of couples in society like India and since then this filed has seen a raid growth. It was held in a judgment of Andhra Pradesh High Court decision that, “right to reproduce is one among the basic civil rights of man”.[9]

With medical advancement, around 2000’s Surrogacy gain popularity around the globe and India also witness the same. In India Commercial Surrogacy was legalized in year of 2002, for intended parents whether citizens of India or not. This lead in setting up of India as an International Supermarket for surrogacy, factors which lead to its promotion were- availability of good medical infrastructure, large number of potential surrogates, relatively cheap as compared to other countries. As per Law Commission 288th report the average fee for surrogacy in India is around $25k to $30k, which is nearly 1/3rd of that I countries like U.S.A. As per the United Nations study in 2012, estimated business of Surrogacy is more than $400 million a year with approx. 3000 clinics across the country.[10]

Laws Relating to Surrogacy -

India is a country where surrogacy is neither completely banned nor regulated. After Commercial Surrogacy was allowed in India, various complications arose due to no rules regulating surrogacy directly or indirectly and still there are no clear laws regarding this. After several years of debate and discussion, Ministry of Health and Family Welfare, Indian Council of Medical Research, the ART surgeons Published a non-binding guidelines in year of 2005 for Regulation and Supervision of ART Clinics across country.[11]

As there is no codified law, if situation exits in respect of Surrogacy laws, the same is to be governed by Civil law of country as there were no specific laws relating to the subject.

Baby M Case –

In year 2008, a Japanese couple came to India and contract with a woman (surrogate mother) for bringing up their baby to this world through surrogacy. 1 month before birth of child in India, couple divorced in Japan and biological mother refused for custody of child. Child’s custody was denied to his father as per Adoption Laws in India. For next three months the baby was not allowed to leave country. Later on the Adoption of child was provided to her Grand Mother. Little Girl Manji Yamada commonly known as “Baby M”, was world’s first Surrogate Orphan and she remained stateless baby for the time till Judgment of Supreme Court came.

This case highlighted the need for drafting of Assisted Reproductive Technology (Regulation) Bill in 2008, by development committee Indian Council of Medical Research. New bill leads to an extensive public debate throughout country and worldwide as its drafted copy was placed on Government website.

Law Commission in its 288th report on Assisted Reproduction Technology procedures pointed out that why there is a need for legislation to regulate laws related to surrogacy. Under this report some 9 recommendations regarding the rights and obligations of parties (Intended parents and Surrogate mothers) and right of Surrogate Child were proposed.

The Assisted Reproduction Technology Bill, 2013 which mainly focuses on banning commercial surrogacy and any sort of exchange of money i.e. only allowing Altruistic Surrogacy. Under this bill the prohibited one’s from surrogacy are- Foreign couples, Couples with already one child, Overseas citizens of India (OCI), live-in-partners, widows and single people.

Conclusion and Way Ahead -

India faces different set of problems after legalizing commercial surrogacy in 2002 this was because there were no laws dealing directly or indirectly with this matter. This is true to say with regarding to surrogacy that in absence of law, lawlessness is the law.

Latest bill related to surrogacy was The Surrogacy (Regulation) Bill, 2016 which was passed in 2018. The major highlights of the act are –[12]

· Intended couple for surrogacy must be Indian Citizens, at least one of them to be infertile.

· Surrogate mother has to be a closer relative of intended couple.

· No extra payment other than medical expenses should be provided.

· Appointment of Authorities by Central and State Government for granting certificates to Intended and surrogate mother.

· Restricting woman to be surrogate only once.

There were various reasons for such harsh laws passed by the Government-

· Protection of intended parents and surrogates mother.

· Unethical treatment, exploitation and poor living conditions of surrogate mother.

· Amount received by surrogate mothers in India is much lesser than as compared to other countries.

Unfortunately, this new legislation by the Government faces various criticisms. In order for making this process of surrogacy more safer, the policies lead to a restrictive process that made it more difficult or completely impossible, rather than making it safer.

The proposed draft Assisted Reproductive Technology (Regulation) Bill would ensure social, medical and ethical rights of both the Intended parents and Surrogate mother. It also provides a framework of ethics and good medical practices by the doctors. But still there are various changes that need to be done in the proposed legislation before commencement of this rule.

References - [1] R.R SHARMA, Social, ethical, medical & legal aspects of surrogacy: an Indian scenario, Indian Journal of Medical Research. [2] https://www.collinsdictionary.com/dictionary/english/surrogacy [3] https://thelawdictionary.org/surrogate/ [4] Yashomati Ghosh,”Surrogacy and law: An affirmative approach to deal with the Ethical and Legal Dilemma”, Vol. II, Issue 1, 2011 Journal of Law Teachers of India (83 to 92) at 85. [5] https://www.webmd.com/infertility-and-reproduction/qa/what-is-a-traditional-surrogate [6] https://www.growinggenerations.com/surrogacy-resources-for-intended-parents/understanding-different-types-of-surrogacy-3/ [7] https://info.worldwidesurrogacy.org/blog/commercial-surrogacy-vs.-altruistic-surrogacy [8] https://economictimes.indiatimes.com/industry/miscellaneous/kanupriya-agarwal-indias-first-test-tube-baby-celebrates-40th-birthday-in-pune/test-tube-baby/slideshow/66115886.cms [9] B. K. Parthasarthi v. Government of Andhra Pradesh, AIR 2000 A. P. 156 [10] Bhalla, Nidhi; Mansi (30 September 2018) https://www.medscape.com/viewarticle/811861?nlid=35152_2043&src=wnl_edit_medn_obgy&uac=149266AJ&spon=16 [11] “National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India,” Indian Council of Medical Research (ICMR), 2005, Ministry of Health and Family Welfare, Government of India, New Delhi. [12] https://www.prsindia.org/billtrack/surrogacy-regulation-bill-2016

About Author -

Anubhav Maheshwari is a IV semester student from Institute of Law Nirma University, Ahmedabad. His Linkedin profile https://www.linkedin.com/in/anubhav-maheshwari-34917b197/