By
Kavya S. Suvarna, III year of B.A.,LL.B. from Sinhgad Law College, Pune
Surrogacy is the type of assisted reproduction whereby a woman agrees to bear the child inside her womb for someone unable to, due to medical issues faced by them. After the child is born, these people become the parents of the child and not the surrogate mother. Surrogacy is a form of legal agreement, sometimes assisted with monetary benefits for the surrogate mother. In India, surrogacy is not considered to be morally ethical as it is believed to be an unnatural form of reproduction. But for those, who are unable to have a kid on their own, surrogacy has been a blessing.
Types of Surrogacy
Traditional/Natural/Partial surrogacy: In traditional type of surrogacy, the surrogate mother is the carrier of the child as well as the egg donor, which makes her the biological mother of the child. Here, the surrogate mother is artificially inseminated with the father’s sperm.
Gestational surrogacy: In gestational surrogacy, the embryo is created in vitro fertilization or IVF, using the eggs and sperm of the parents or donors, which is then transferred to the surrogate mother.
Arrangements of Surrogacy
·Altruistic/Unpaid surrogacy: In this type of surrogacy arrangement, the surrogate mother does not receive any monetary compensation for giving birth to the child. The surrogate mother is usually a close relative or a close friend of the couple she is having the child for. Only the necessary medical expenses are paid for in this kind of surrogacy. Altruistic surrogacy is the acceptable form of surrogacy.
· Commercial/Paid surrogacy: In this type of surrogacy arrangement, the surrogate mother receives monetary compensation for giving birth to the child. She is given money beyond all the necessary medical expenses. Commercial surrogacy provides a source of income for the surrogate mother. This kind of surrogacy is, however, considered to be unethical and has been a topic of controversy for decades.
Surrogacy in India
Baby Kanupriya from Kolkata born on 3rd October 1978, was the first child to be born from surrogacy. In 2002, Commercial surrogacy whereby monetary compensation for giving birth to a child was provided to the surrogate mother, was made legal in India. Since then, commercial surrogacy became a source of income for many poor women in India. And by 2012, India became the surrogacy capital of the world. As there is are no legal framework relating to surrogacy, commercial surrogacy became very common in India. Childless people from all around the world came to India, as they could get a child via surrogacy at cheaper rates. Giving up a biological child is one of the hardest decisions that a woman has to make. As a result of which, the ethics of commercial surrogacy was questioned and in 2009, the Law Commission of India banned commercial surrogacy and recommended only altruistic surrogacy.
In 2015, the Government of India passed a new set of regulations on the process of surrogacy. Under these guidelines, foreign people were not allowed to come to India, to opt for surrogacy. It was termed to be illegal. Only Indian couples who are married for 5 years and are unable to give birth to a child on their own, can opt for commercial surrogacy in India.
In 2018, the Surrogacy (Regulation) Bill, 2016 was passed, which made commercial surrogacy illegal and allowed only altruistic surrogacy for the needy and infertile Indian couples with doctor’s certificate of proof. The couple also needs to be married for 5 years. Under this law, women are restricted to being surrogates only once and only if there are close relatives or close friends of the couple. Also, single parents, homosexual people and couples living in live-in relationships are banned from getting a surrogate child.
The ban on commercial surrogacy led to the violation of Article 19(1)(g) of the Constitution of India (to practise any profession or to carry on any occupation, trade or business) for those women, who earned their source of income through commercial surrogacy. Also, the ban on single parents, homosexual people and the couples living in live-in-relationships from getting a surrogate child is a violation of Article 14 of the Constitution of India (Right to Equality)
In 2020, the Union Cabinet approved the Surrogacy (Regulation) Bill after making the necessary changes with the recommendations of a Rajya Sabha Select Committee. The following changes were made to the old bill:
In the 2019 bill, only a close relative or close friend was allowed to be the surrogate mother, however, the 2020 bill allowed any ‘willing’ woman to be a surrogate mother.
Commercial surrogacy is prohibited and also the sale and purchase of human embryos and gametes are not allowed. The punishment for this is imprisonment up to 10 years and with a fine of Rs. 10 lakhs.
The child born through surrogacy should be given all the rights and privileges that are given to the natural child.
Under the 2020 bill, selection of gender of the baby is not allowed.
In the 2019 bill, a couple had to be married for 5 years before opting for surrogacy, and if the couple were unable to conceive a child for 5 years, they were considered to be infertile. However, in the 2020 bill, the definition of ‘infertility’ was deleted as waiting for 5 years was considered to be unreasonable.
The couple who wants to opt for surrogacy is supposed to obtain a certificate of essentiality and eligibility that proves infertility. This certificate also needs to provide that the couple won’t abandon the child born through surrogacy under any condition.
The new bill allowed Indian origin married couples and also a single woman who are widows and divorcees between 35 to 45 years of age to get a child via surrogacy.
Single parents, homosexual people and the couples living in live-in-relationships are banned from getting a surrogate child under the 2020 bill.
The surrogacy clinic has to register with the appropriate authorities.
The insurance coverage of the surrogate mother is extended to a period of 36 months that covers the post-delivery complications.
The bill also proposed the establishment of National Surrogacy Board (NSB) and State Surrogacy Board (SSB) to supervise the functioning of the clinics and advise the government in policy matters.
The Surrogacy (Regulation) Bill, 2020 protects the rights of the child as well as that of the surrogate mother. With the establishment of National Surrogacy Board (NSB) and State Surrogacy Board (SSB), proper functioning of the surrogacy clinic is assured. This bill is considered to be ethical, moral and social legislation and the implementation of this bill will be very useful.