This article is written by Aaditya Kapoor, a law-aspiring student of Vivekananda Institute of Professional Studies. Through his research, Aaditya strived to shed light upon currently existing laws regarding surrogacy in India, along with its impact on surrogate mothers as well as the institution of marriage.
The reproduction process is considered to be a fundamental element in the sustenance of life, and for good reason. Not only does it perpetually maintain life on Earth, but the birthing of a child is also considered to further one’s heritage and familial legacy. In India, a country where the institution of marriage is considered holy matrimony and bond within the family are particularly emphasized, the birth of a child is not simply a matter of necessity, but one of celebration.
However, not every couple bound by marriage is biologically or medically eligible to birth a child. In such a case, they are free to opt for other methods of expanding their lineage: one such method being Surrogacy.
What is Surrogacy?
Surrogacy is a legal arrangement in which a woman agrees to bear the child for another person. Such a woman is called a surrogate mother and the person with whom she enters such arrangement is deemed to be the child’s parent after its birth. Medical disqualification is not necessary for opting surrogacy, as it can also be pursued by a single parent, or in case there is high risk in undergoing pregnancy for the intended mother. Compensation of monetary value may or not be involved, and the legality of such practice of commercial surrogacy is dependent upon grant of sanction by State.
There are two forms of this practice:
- Traditional Surrogacy: In this process, sperm of either the intended father or a donor fertilizes the surrogate’s egg. This can be done either naturally or artificially, and in cases where the intended father’s sperm is used for inseminating the surrogate, the child thus born is genetically related to both the intended father, as well as the surrogate mother.
- Gestational Surrogacy: The fetus is not physically linked to the pregnant mother in gestational surrogacy, which is often referred to as a gestational carrier. Instead, the embryo is created through in vitro fertilization (IVF), using the intended parent or donor eggs and sperm, and then transferred to the surrogate.
Surrogacy (of the latter type, especially) has become a prevalent practice in India, with a large number of parents willfully choosing this method of furthering their family. However, there has been a slight gray area in its implementation in the legal framework of the nation. This article shall strive to elucidate the practice’s position in law, as well as its impact on the institution of marriage in India.
How does Surrogacy Affect the Institution of Marriage?
While the practice of surrogacy is mostly favourable for the intended parents, the same may not be easily said about the woman voluntarily deciding to take up the role of being a surrogate. Especially in the current legal scenario, where being married is a prerequisite for qualifying as a surrogate, there can be a significant effect on the married life of the surrogate mother.
- In order to ensure the highest possibility of a successful surrogacy, the surrogate may be prescribed fertility medication. As a result of that, the intimacy between the surrogate and her partner shall suffer temporary reduction to prevent a surprise pregnancy between them.
- Even though the child is not her own, the surrogate, along with her partner, shall be required to remain extra cautious about the health of both child and surrogate mother. Such application of care on the partner’s part can be just as difficult to attain as it shall be necessary.
- Owing to human nature and everything it entails, it isn’t a far-fetched assumption to think that the partner may not entirely support the practice, to begin with. The idea of their spouse carrying another person’s child may not comfort them, which may also, in turn, hamper the surrogacy process.
- In India, the institution of marriage is not always an independent establishment, such that marriage in the country is often considered to be a union between families. Therefore, volunteering to become a surrogate mother for another person may not be accepted especially by orthodox & conservative families.
- Apart from the aforementioned, even if the rest of the surrogate’s family offers support, there shall be need of reserving herself from usual family activities to ensure the successful birth of a healthy child.
- Surrogacy may also delicately impact any children the surrogate may have.
As such, it’s a fair assumption to make, that the life of a surrogate mother isn’t always favourable and she may encounter problems outside her family as well. To that effect, however, the landscape of surrogacy laws in India stands to be evolving seemingly for the better.
Surrogacy in India
In cases of surrogacy where monetary compensation is involved, the practice, as mentioned above, is termed as commercial surrogacy. The catch about this particular construct is that not every jurisdiction permits it freely, and because of such restriction, couples pursuing the practice determine having the procedure conducted in a country that permits commercial surrogacy. It is due to this reason that, prior to 2008, India was considered to be the “surrogacy capital of the world.” Commercial surrogacy was being carried out briskly in India without any government attempts to create a legislative regulatory framework. In 2005, the Indian Medical Research Council (ICMR) formulated some guidelines. However, there was no statutory basis for these guidelines, and surrogacy remained an unhinged practice in the Indian legal landscape. However, there was a brisk change in the implementation of surrogacy laws in the year 2008 when the Supreme Court was called upon to deal with a case involving surrogacy: the case of Baby Manji Yamda v. Union of India, which applied solely to securing travel documentation for a baby conceived and delivered in India through commercial surrogacy with Japanese parents. Although the question of the legality of commercial surrogacy was not raised under Indian law, the Supreme Court made an observation that commercial surrogacy is legal in India. The timing of the aforementioned decision coincided with the 2008 Assisted Reproductive Technology (Regulation) Bill’s introduction, but no steps were made to bring the 2008 Legislation to Parliament. This prompted the Law Commission to suo moto address the issue of research surrogacy, culminating in its 228th Report submitted in August 2009 where the Law Commission mooted the proposal for a revised law to regulate the surrogacy process in India. In furtherance of such proposal, a revised bill was constructed which also availed no legal attention. A similar occurrence prevented surrogacy laws to viably fabricate in the nation in 2016, when the Surrogacy (Regulation) Bill was conceived but failed to pass in the Rajya Sabha. In the meantime, however, a ban on foreign intended parents was issued by law and it came as the axiom to viable surrogacy legislature in India. Finally, in 2019, the Bill of 2016 was re-introduced and passed in 2019 with the following impositions:
- Commercial Surrogacy was rendered free of its legal identity and became an illegal practice.
- The nation only allowed the practice for infertile couples that were in need of the child.
- Validation of marriage of at least five years along with a doctor’s certificate legitimizing claim of infertility was deemed as necessary objectives required to pursue surrogacy.
- Surrogate mothers were restricted from undergoing surrogacy more than once, with the woman being eligible to act as a surrogate only if she happens to be married with at least one biological child, while such woman is also a close relative of the intended parents.
- Homosexuals, single parents and live-in couples were banned from opting for the procedure of surrogacy.
Are strict Surrogacy Laws necessary?
Like all international surrogacy in less developed countries, there is less protection available for intended parents and surrogates — and it has led to harmful results. When Indian surrogacy first became a booming industry, no regulations were in place, and reaction to unsafe and unethical practices developed.
During this time, the women who opted to become surrogates in India were subjected to unethical treatment, poor living conditions and exploitation. Indian surrogacy agencies effectively ran “baby factories” where Indian women were forced to live until they gave birth to the intended parents’ babies, in order to keep up with the demand from internationally intended parents. Moreover, Indian surrogates received only a fraction of the expenses intended for parents to pay to the surrogacy agency; as a result, the surrogates were commonly exploited in commercial surrogacy. For this financial gain, their poverty and lack of education constantly drew them back into the surrogacy process, and their health declined as they effectively became “baby machines” year after year. Also, during this emotional journey, they didn’t receive the kind of support services they needed for themselves and their family.
Constitutional Validity of current Surrogacy Laws
Restricting surrogacy to a married couple seriously impairs the rights of single persons, LGBT persons, and persons in living relationships; but in retrospect, such classes of persons adopting a child are not prohibited. Such a limitation, however, also militates against the equality principle enshrined in Article 14 of India’s Constitution. While legislation can make room for reasonable classification, such classification must bear a nexus with the object which the legislation seeks to achieve.
The primary purpose of the 2019 Bill is to prevent unethical practices arising from India’s surrogacy services. Allowing a married couple to have surrogacy rights to the exclusion of all others carries no connection whatsoever with this piece and therefore, the aforementioned provision begs question of befitting constitutional validity. Moreover, there is no definition in the Bill of 2019 of the term ‘close relative,’ which the surrogate mother is mandatorily required to be.
There is an imminent need for there to be a more suitable, well-formed legislation for surrogacy in India; one that viably and without exception furthers public interest without breaching the limit of constitutional validity.
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