Author: Bhakti Khule, III Year of B.A.,LL.B, from Symbiosis Law School, Hyderabad.
Co-author: Sunayana Sandeep Khurana, III Year of B.A.,LL.B, from RTMNU’S Dr. Balasaheb Ambedkar College of Law, Nagpur.
CONCEPT AND MEANING
Surrogacy is an issue that has been taken into consideration since antiquity and is known to every society in the world. One of them is infertility, which is considered a social stigma in India. And at the same time, it is believed that the pain and trauma of this condition are faced by infertile couples. Surrogacy is the best alternative over the other options, and it has made its place in the urban area. Commercial surrogacy benefits both surrogate mothers as well as commissioning couples as both of them benefit from it. Surrogacy is still unpopular in many parts of the world due to the complexities with it, and those complexities are social, ethical, moral, and legal at the same time. There are various reasons due to which several couples around the world require surrogacy services. India carries its journey in legalizing surrogacy and carrying surrogacy centers from 2002 to the surrogacy regulation bill 2016 with stopping many from getting this medical service. Surrogacy will be practiced in harmony if the complexities mentioned with it will be handled appropriately through framed laws which will benefit intended parents, surrogate mother, and born child through surrogacy.
The word “surrogate” originates from the Latin word “surrogatus” which means “to substitute” and “appointed to act in the place of”. According to the Black law’s dictionary, it defines it as carrying or handing over the child to another person after the child is born. Here some specific roles are played – as a surrogate mother implies a mother who becomes pregnant and gives birth to the child who can be from her egg or by the implantation of the womb of another woman with the intention of giving away this child to another person or couple, and this couple is often known as “intended” or “commissioning parents”.
ANALYSIS OF COMMERCIAL SURROGACY
It is very inhuman and hard to believe that a child is being used as a commerce. Babies or any living being is a product of love and affection, not money. The poor section parent view their own children as an asset, weighing all their present and future contributions – in the farms or in any factory, which is absolutely against the very efficient cost of carrying their childhood. Surrogacy in India has become a business now and is always a controversial topic, leading to various political debates. On one side, there is a feminist debate upon owing right over a body of one which is alienability of a woman’s body and legal scholars digging into the issue of legality. Where the market of the very surrogacy is increasing day by day. There are thousands of women who want to bear a child and thousands of couple who desire to produce their own child.
Commercial surrogacy or “womb for rent” is a rapidly increasing business in India. All the various critics have explained this business through various terms such as ‘baby firm’, ‘parenthood by proxy’ and ‘womb on hire’. This concept which is meant to be a natural biological function of a woman’s body has now turned into a booming business. The commercialization is raising the black market, child breeding, and due to such situations the agencies tend to ear huge profits. In Indian such surrogacy is become large as the women are readily available at very less cost compared to various other countries.
The Foreign couples who tend to choose surrogacy process fly down to India as the process is cheap here. When the commercial surrogacy was legalised in India in 2002, over 350 clinics were opened in a less time span who offered surrogacy. It involved the total worth of the business of $445 billion.
A few places like Anand in Gujrat, Mumbai, Pune, Delhi have seen a huge hub of commercial surrogacy. The clinic acts as the middle person in between the parent couple and the surrogate in the whole process.
Surrogacy and surrogate mothers hiring womb have existed in India for a very long time in India even before the Transplantation of Human Act, 1994 was introduced. This act banned the sale of any sort of human organs and commercial use of any human organ.
Surrogates are now even available to a homosexual couple and even to the single parent and unmarried couple, this concept grew more after the section 377 was scratched off by the Supreme Court. “The urge to have a biological child of one’s own flesh, blood and DNA, aided with technology and the purchasing power of money coupled with the Indian entrepreneurial spirit has generated this flourishing Indian reproductive tourism industry”
LEGAL ISSUES OF COMMERCIAL SURROGACY IN INDIA.
It is very evident and clear that the very concept of commercial surrogacy includes violation of various human rights which are guaranteed by the constitution of India such as:
Equality – now talking about equality, this is violated from both sides of the parties. The right to equality is violated in the instances of commercial surrogacy as the surrogate mother has not given a single opportunity to raise the child to produce. Also, the right to reproduce is a basic essential human right.
Exploitation – in many of the cases, the surrogate mother tends to usually get exploited by various means which include sexual abuse, sex trade, illegal trade of reproductive organs, non-payment of the compensation or forceful surrogacy.
Right to life – the very connection of the surrogated mother with the newborn baby is that she is conveying her own womb for lease. And after the result, she doesn’t hold any right to the baby, neither has the privilege to keep the child. Hence, it can be said that she is just a contractual worker who will give the final result once the agreement is satisfied between both the parties.
Citizenship – it could be identified that the very concept of the commercial surrogacy is backed and not allowed with medical tourism. Many foreigners came to India for the purpose of having a child through surrogacy process as it is cheaper in India. And in such situations, the issue arises whether the child delivered by an Indian belonging to a foreign parent is eligible for Indian Citizenship or not.
The validity of the contract – the law relating to surrogacy is very uncertain, and it varies from countries to countries. In a few countries, surrogacy is illegal while some other countries has their own laws for surrogacy. In Hong Kong, surrogacy is declared illegal, whereas in The iceland, commercial surrogacy is banned.
LAW REFORMS RELATING TO SURROGACY
The present laws in India and around the foreign countries
Due to the increasing price of the surrogacy process in the European countries, the couple tend to travel to other countries for the process of surrogacy where the rates of the process are minimal. Even every countries have different laws pertaining to the surrogacy process. In the countries like Sweden, France and the United Kingdom, the surrogacy practice is banned.
In the case of Johson VS Calvet, this was the case from California where the court decided that the surrogacy agreement was valid as it did not harm any public policy. And the question in the court was who would be the mother of the child.
In the Re TT Case, the United Kingdom court decided the validity of the very surrogacy agreement. But the case of the paternity of FTR, the court again decided in the favour of surrogacy agreements.
In the very case of Baby Manji Yamada vs. Union of India (UOI) and another, the petitioner of the case filed the very case under article 32 for the custody of the child Emiko Yamada. This case is considered to be important as there were no rules and regulations regarding the surrogacy concept. Hence it could be said that this is the very case which directed the Assisted Reproductive Technology bill, 2010. This case was brought up on the fact that the concept of surrogacy was legal in India.
In the other case of Jan Balaz v. Anan Municipality and Others, in this very case the nationality of the twin baby was in question. Both of these children were related to their father genetically and the egg of the surrogate mother was only used for use. The problem came around when the passport for the twins was not issued as the father was from German, and German laws strictly prohibited surrogacy which did not consider surrogacy as a very means through which the parenthood would be justified. The matter subsequently went to the Supreme Court, which dealt with inter country surrogacy and adoption, 1993. The decision was made on the ground considering the very welfare and facilitate of the children.
Hence, the twins were adopted by the German couple and were taken to their new home in German.
These are a few cases which flooded open the gets for unresolved problems in the legal cases as the court did not lay down any rule or guidelines but just provided adoption as the means for the problem from saving the very child from being parentless and nameless. The very welfare of the child had always been taken into consideration by the court.
When we tend to come at the end of this disclosure, we might think that it is certainly a God-given gift that one gets privilege to reproduce, which is like the major characteristics of Human rights. Surrogacy is the best way to overcome such problems of social and physical fruitlessness. Surrogacy gives the intending parent hope of getting their child which they would cherish for their lives.
It gives a child to even those who are not willing to get married with all the opportunity of having a child without marriage. This process of surrogacy can get many emotions all together like sentiments of dissatisfaction, irritation and love and affection as well. The process through which both the parties go intending parents and the surrogate mother is a roller coaster ride indeed. We could conclude one more thing which is the very commercial surrogacy tend to protect and secure the plans of surrogate mothers and legitimization was of the intending parents and the child born after the birth of the child.