Issues dealing with Surrogacy in India and an assessment on THE SURROGACY (REGULATION) BILL, 2019

By Sri NAGA OM SIVA SHIRDIK

3rd Year BBA;LL.B(HONS),SASTRA SCHOOL OF LAW, Thanjavur, 613401, Tamil Nadu.

Abstract

​This paper examines about what is Assisted Reproductive Technologies (ART) and different kinds of ART’s and the main risks in following ART and also this paper makes an assessment of the provision given THE SURROGACY (REGULATION) BILL, 2019 regarding ART and also the paper deals with the cases of ART. This paper deals with the definitional aspects of Surrogacy, different kinds of surrogacy and the medical procedure of the surrogacy. This paper gives the observation and suggestion given by the law commission to the Legislature in regulating the rights and obligation of the parties to surrogacy. This paper also gives the recommendations given by Law Commission regarding rights of surrogate mother, right to abortion or medical termination of surrogate pregnancy. This paper gives the guidelines given by Indian Council for Medical Research. This paper examines about the Commercial Surrogacy and law relating to Commercial Surrogacy and cases relating to Commercial Surrogacy. This paper also examines about the Ethical and Legal issue relating to Surrogacy. The author examines about the issues regarding the Surrogacy in India. This paper gives an assessment regarding the features of THE SURROGACY (REGULATION) BILL, 2019 and the pros and cons of THE SURROGACY (REGULATION) BILL, 2019. This paper also gives the similarities and differences of surrogacy law in India and the UK. The paper deals with issue of adoption with related to the Surrogacy. Subsequent to this analysis, the conclusion is presented along with the observations and suggestions.

Keywords: Artificial Reproductive Technologies (ART), Surrogacy, Commercial Surrogacy. Law Commission, Indian Council for Medical Research, Cases relating to ART and Commercial Surrogacy, Adoption, Ethical and Legal issues.   

Introduction: Surrogacy is one of the types of Assisted Reproductive Technique (ART), in which the woman accepts to get pregnant on behalf of the infertile intending couple. For couples from another countries India has become a prominent surrogacy network. The Surrogacy Regulation Bill, 2019 was drafted to protect the women from victimization and exploitation in current commercial surrogacy ecosystem.

Assisted Reproductive Technologies (ART’s): 

​Assisted Reproductive Technologies (ART’s) are the medical procedures used to address infertility. ART involves a technique wherein semen is infused/introduced into the vagina, cervical canal or uterus by medical means for the purpose of inducing pregnancy. ART are otherwise called cervical insemination, intra-uterine insemination and intra-tube insemination.

​The procedure involving placing of an “unprocessed semen” specimen into cervix mucus and then placing a cervical cap or specially designed vaginal tampon to hold the semen against the cervix is called intra-cervical insemination. The procedure involving placing of maximum number of sperms in close proximity to egg is called intra-uterine insemination. On the other side the procedure involving processing of semen to maximize its fertility and then is placed through the cervix, by the use of specially designed catheter, into the uterine cavity and into the uterine opening of the fallopian tube is called intra-tubal insemination.

​Apart from these ART’s there are few more under ‘Artificial Insemination’. They are given under:• Homologous Artificial Insemination (AIH), is the procedure wherein the women is injected with the sperms of her husband only. In such cases, the question of legitimacy remains silent as the activity involves the task of husband and wife only.• Heterogonous Artificial Insemination or Artificial Insemination Donor (AID), is the procedure wherein the women is injected with the sperms of not her husband but with that of a stranger. Such situation tends to raise plentiful of questions as to the legitimacy of the child. There is no law as such which provides for conformity of the laws and rights to the child born of AID. • Artificial Insemination Mixed (AIM), is the procedure wherein the infertile husband’s semen is mixed with donor’s semen and used to inseminate the wife of the husband.

The Scottish Trial Court in Machlennan v. Machlennan, where the issue was again concerning adultery and artificial insemination by donor, held that it did not amount to adultery. In India under section 497 of Indian Penal Code the surrogacy cannot be considered as adultry because sexual intercourse is not present. Penetration is a necessary element for a successful completion of sexual intercourse, which is an essential element of adultery AID does not amount to adultery.

In Vitro Fertilization:

​In Vitro Fertilization (IVF) is the technique of lettinginvolving the fusion of male and female gametes to form a zygote (sperm and egg) occur outside the female body. This type of fertilization has proved to be one of the more controversial techniques of the reproductive revolution. The immediate problems of IVF are that it involves the getting the existence of an embryo extra vitro. Techniques usually used IVF include:• Transvaginal Ovum Retrieval, is the process where a small needle is incorporated through the back of the vagina and directed via ultrasound into ovarian follicles to gather together the fluid that contains in the eggs.• Embryo Transfer, is the process where one or two-or-more embryos are put into a particular position in uterus of the female with the intention to set-up a pregnancy.

Assisted Reproduction Risks:1. Infection: Use of fine needle to take off the eggs from a woman may risk to brings contamination into the body. Sperm donation may pass on disease like HIV.2. Multiple Pregnancy: IVF greater the chance of having multiple pregnancy examples twins or triplets. Such pregnancies constitute health risks for both mother and children.3. Ovarian Hyperstimulation Syndrome (OHSS): Drugsused to stimulate the ovaries during IVF can lead to OHSS. This results inti the enlarged and painful ovaries causing abdominal discomfort. Symptoms may includeshortness of breath, fluid retention in abdominal cavity, formation of blood clots.4. Genetic disorders: Such as low birth weight and preterm birth weight are strongly connected with many health problems, such as visual impairment and cerebral palsy.5. Other risk factors: Such as membrane damage, which may be reflected by increased expression of the membrane fusion proteins and annexin.

Definition of Surrogacy and Different kinds of Surrogacy:

​The method in which a woman bears a child for another woman is called Surrogacy. The purpose for surrogacy can be for the commercial purpose or for the altruistic purpose. The word surrogate originates from Latin word surrogatus which means ‘appointed to act in the place of’. Merriam Webster Dictionary defines surrogacy as “the practice by which a woman (called a surrogate mother) becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children”. There are two types of surrogacy they are:1. Traditional Surrogacy: This is also called as the Natural surrogacy in this type of surrogacy the surrogate mother is artificially inseminated with the sperm of male partner of an infertile couple or by an anonymous donor. The child that is born through this method is genetically related to the surrogate mother and male but not to the commissioning female partner. This method is known as the Straight Method.2. Gestational Surrogacy: In this type of surrogacy the egg of the wife of the infertile couple is fertilized in vitro of the husband’s sperms of the infertile couple by IVF/ICSI procedure, and then the embryo is transferred into the uterus of surrogate mother which she carries it for nine months. The surrogate mother becomes pregnant via embryo transfer with a child of which she is not the biological mother. The surrogate mother may be called the gestational carrier. This method is called as the Host Method.

Altruistic Surrogacy:

​Altruistic Surrogacy is a Situation were there is no financial reward is given to the surrogate mother for her pregnancy or for the sacrificing of the child. Altruistic surrogacy refers to those surrogacy agreements where the surrogate mother does not receive any monetary compensation for gestational carrying from the couple.

Commercial Surrogacy:

​Commercial surrogacy is a form of surrogacy were there is a surrogacy agreement between the parties in which where the surrogate mother undertakes surrogacy in exchange of payment. The couple undertakes to pay the surrogate mother a certain sum of amount which is significantly greater than the costs sustained and income lost in becoming pregnant and bearing the child.

Legalization of Commercial Surrogacy:

The surrogacy is considered to be legal when the contractual intention between the parties is legal. In India the surrogacy is considered to be legitimate because no Indian law prohibits parties from surrogacy. The Indian Contract Act would apply to determine the legality of surrogacy agreementand the Section 9 of Code of Civil Procedure deals with the enforceability of any such agreement. The Guardian and Wards Act 1890 deals with the declaration and appointment of a guardian to the surrogate child.

The Supreme Court of India formally legalized commercial surrogacy in the case Baby Manaji Yamanda v. Union of India. In this case the Court defined “commercial surrogacy as form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb” and also the Court dealt with related aspects of surrogacy such as surrogacy agreement and the parties who may enter. 

​In another case Jan Balaz v. Anand Municipality and Ors, the intending father and surrogate mother whose name is mentioned as the intending father entered into a surrogacy agreement which led to vexatious legal issues in the issue of birth certificate for the surrogate child. In the both above mentioned cases the sole purpose of the surrogacy agreement is to hand over the surrogate child to the couple in exchange for the fixed payment of money. Both these judgments aimed for the passing of legislation a law on surrogacy in India. Following to this, the Indian Counsel for Medical Research (ICMR) drafted the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India in 2005 as the first ever national guidelines for laying down standards of conduct for surrogacy in India. Later, the draft ART Bill was formulated in 2008, reviewed and redrafted in 2010 & 2014 but was never passed as law. 

Commercial surrogacy has posed the conundrum of whether maternity benefits for surrogate mothers should be allowed in organizations. In recent times, the courts of India have pronounced judgments on this issue using various approaches.

Approach 1: Motherhood is a part of Right to Life under art. 21 of the constitution. Thus, maternity benefits should be awarded in all kinds of motherhood whether surrogate or natural.

Approach 2; Maternity benefits are not only there against physical hardships of motherhood but also psychological and emotional turmoil’s which are present even in surrogate motherhood.

Approach 3: The maternity benefits to surrogate mothers cannot be exactly the same as that of natural motherhood as the former doesn’t involve the gestation period and physical hardships. So, the maternity benefits in surrogate motherhood should be limited.

All these approaches of the courts take into account various aspects of being a surrogate mother and reasonableness of receiving maternity benefits for such mothers. The organization’s employing women and society in general also needs to watch through these spectacles and accordingly be empathetic towards surrogate motherhood.

On 15th July, 2019 The Surrogacy Regulation Bill has been introduced in the Lower House that is Lok Sabha, the bill mainly aims in prohibiting the commercial surrogacy. in order to actively encourage the foreign parties and to promote medical tourism in 2002 India has legalized commercial surrogacy which is also known as the renting the womb. Due to the facts like absence of strict legislation and low-cost India has become a center/ hub of surrogacy. Sooner the commercial surrogacy has become a reason for the rapid economic growth in the economy of India and also it became a business in the country. Accordingly, the turnover of the size of Indian surrogate motherhood was 2 billion dollars in a year.The economic scale of the Indian surrogacy industry to be 400 million dollars a year with more than 3000 fertility clinics across the country. This uncontrolled commercial activity led to affect over the exploitation of surrogate mother as well as their children prompting the need for a legislation to draft a law and to regulate surrogacy in the country.

Features of The Surrogacy (Regulation) Bill, 2019:1. The bill makes an adequate preparation for composition of surrogacy boards at national and surrogacy boards at state levels.2. It also says that under any condition the child should not be abandoned by the intended couple. 3. The bill makes it clear that the surrogacy can be opted by the Indian couples who are legally married for at least 5 years.4. The bill states that the infertile intending couple can be allowed only to ethical altruistic surrogacy. 5. As per the bill the age criteria for female is 23 to 50 years and age criteria for male is 26 to 55 years.6. The Certificate of Essentiality and Certificate of Eligibility is mandatory for the couple who are intending to go for surrogacy.7. As per the bill the woman to become a surrogate woman must fulfill the below given eligibility criteria’s they are the woman should be married woman and should have a child of her own, the woman must be the close relative to the intending couple and the woman should be of the age 25 to 55 years8. The bill also states that the woman who is coming forward for the surrogacy should not have a surrogate earlier and also the bill states that a certificate should be granted by the respective authorities regarding the physical and mental health of the woman who came forward for the surrogacy.9. On the legal status of the surrogate child the bill states that the intending couple should accept the child burn through surrogacy as their biological child. The child born out of surrogacy shall be entitled to all legal rights and privileges that are available to natural child.10. Further, the bill also seeks to control the functioning of surrogacy clinics by means of rules and regulations. The bill states that in order to undertake surrogacy the medical clinics must be registered by the appropriate authority.   

While the surrogacy is accepted worldwide, the enforceability and legal status of child of the surrogacy contract vary from country to country. For instance, in the UK, even though the child is genetically derived from one or both parents, the birth mother and her partner are the legal parents of a child born as a result of surrogacy arrangements.

Ethical issues with surrogacy in the country:

​For cross-border childless couples not only they have todeal efficiently with the language barrier but they sometimes have to face many legal issues and many legal proceedings to get their children. Further even without legal problems couples have to stay in India to complete formalities after the baby is born. Cross-border surrogacy also leads to problems in citizenship, nationality, motherhood, parentage and rights of the child. Sometimes the country of the intended couple may deny to give the citizenship to the surrogate child. There are also incidents when the child given to couple after surrogacy is not genetically related and in-turn is refused to be maintained by the intended parents and has to spend their life in orphanage.

The women of poor, illiterate and rural background are being induced by their husband or by the middleman to take a deal to be surrogate mother to earn easy money through that deal this is a lot worse than a problem. In India there is no psychological screening or lethal counseling that is mandatory in USA. The commercial agencies after recruiting the women of surrogate mothers they are transferred to a boarding house also known hostel for the sake of antenatal care. The realreason for transferring these women is to avoid social disgrace of being made rejected by their community. These womenwho are recruited for the commercial purpose end-up spending the whole period of pregnancy worrying about their children and family. The worst part is that in case of adverseresults of the pregnancy the payment becomes implausibleand there is no legal document or action of insurance or post medical and psychiatric support for them.

Suggestion given by the Law Commission of India:

​The Commission presented its 228th Report in 2009 which stated that the growth in the ART methods was recognition of the fact that the infertility as a medical condition is a huge obstruction in the overall well-being of couples. Further, the Commission recognized the fact that India had become a favorable destination for foreign couples who look for a cost-effective treatment of infertility leading to a flourishing medical tourism due to cheap surrogacy services in the country.

​The Law Commission, however, recommended for legalizing altruistic surrogacy and to ban commercial surrogacy. It recommended measures for better protection of rights of surrogate mother, securing full informed consent from surrogate mother, insurance cover, life insurance cover, right to abortion or medical termination of surrogate pregnancy, right to privacy and other health safeguards. The Commission also recommended for financial support for surrogate child, legitimacy, parentage right to registration of birth certificate of the surrogate child among others. It further recognized the fact that the legal issues related with surrogacy were very complex and needed to be addressed by a comprehensive legislation.​

Conclusion:

​In my opinion the motherhood is a basic right that should be available to every woman. With the advancement of science and technology, the traditional concept of motherhood has been expanded to include children born out of artificial means such as IVF fertilization and even through surrogacy. The Surrogacy Regulation Bill was drafted to protect the women from victimization and exploitation in current commercial surrogacy ecosystem. However, in my opinion the bill violates the fundamental right of equality by not allowing couples already having child, Live-in-relationship partners, single people, homosexuals and widows. The bill also tries to interfere in the women’s right to reproductive autonomy that includes right to procreation and parenthood. The bill instead of regulating commercial surrogacy it bans it which may lead this vast industry go underground making the exploitation easier which were already experienced by the countries like UK. The clause of a close relative questions like- what if the family does not have close relatives and if they have but there is no willing to be a surrogate. Before the bill is passed if these problems can be solved then it can become a watershed event for the women and surrogate children.

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