INTRODUCTION
Surrogacy has provided infertile couples with their children thanks to the advancements in reproductive technology. On the one hand, this is beneficial; on the other hand, it may have the potential to induce all three parties involved: the surrogate, the surrogate baby, and the infertile couple. Surrogacy arises when a couple who is unable to have a child enlists the assistance of another woman, who subsequently carries and gives birth to the couple’s child. The biological relationship between the surrogate mother and the surrogate baby is fairly straightforward. However, the relationship between the surrogate mother and the infertile couple is much more complicated.
The advent of childbirth in the form of test-tube babies, as well as surrogate motherhood enabled by improved technologies, have opened up hitherto unimagined sexual possibilities. Because any reproductive technique that replaces the marital act is a breach of the sanctity of pregnancy, when natural procreation is separated from sexual relations, spouses might easily become sex objects. It becomes difficult to see each other’s dignity, especially in the unborn kid. Science and technology, on the other hand, have made significant contributions to society. However, it is not ethically correct and is highly contentious.
INDIAN PERSPECTIVE
According to ancient Indian philosophy, the biological purpose of life is to propagate one own trait (genes) and all living creatures are here on a transition phase to pass their traits (genes) to the next generation.1 In India, infertility is widely seen as a societal taboo. Infertile couples are thought to feel and explain the sorrow and trauma of infertility the best. Infertility does not claim a person’s life, but it has a terrible impact on a person’s life because he or she is unable to fulfil the biological function of parenthood due to no fault of their own. It is also well known that Indian society as a whole has a fairly stable family structure, a strong desire for children, and a specific desire for males to carry on the Vansh lineage.
There are two types of surrogacy: gestational and conventional. Traditional surrogacy entails the surrogate being inseminated, either naturally or artificially, with the male partner of the childless couple’s sperm, with the resultant kid being genetically connected to the surrogate mother. This has several ethical, societal, and legal ramifications. In the instance of gestational surrogacy, an embryo is created in a test tube from the intended couple’s eggs and transported to the surrogate’s womb via Artificial Reproduction Techniques (ART). As a result, the resulting infant bears no genetic resemblance to the surrogate mother.
Health Risk: The surrogacy process is fraught with difficulties. The primary issue is the surrogate mother’s health risks. In India, up to five embryos may be implanted into surrogates to increase the likelihood of pregnancy. Using so many embryos raises health risks for newborns and mothers, possibly even endangering the latter’s life. An older surrogate mother is more likely to experience perinatal mortality, perinatal death, intrauterine fetal death, and neonatal death. The mother is more at risk for pregnancy-related hypertension, stroke, and placental abruption. All medications have side effects, whether they are hormones or medications the surrogate is told to take. There is also the risk of maternal hyperstimulation syndrome.
Commoditization of Surrogate Child: Various international agreements and pieces of judicial precedent indeed support the idea that human dignity forbids the commoditization of the body, regardless of the wishes of the person whose commoditization is in question. Simply expressed, the practice of surrogacy carries the risk of transgressing norms of human decency. The human body and its components “must not, as such, give rise to the financial benefit,” according to the Convention on Human Rights and Biomedicine. Germany and Switzerland also use the argument that commercial surrogacy reduces the gestational carrier and the child she bears to mere contract objects to support their objection to the practice. In actuality, CEDAW views motherhood as “a social function” as opposed to a business purpose.
Horsburgh (1993) contends that after signing contracts promising to give birth to children for clients, surrogates are subjected to physical exploitation. Even worse, surrogates may only receive a small portion of the initial payment if the pregnancy is indeed aborted. Contracts may also hold mothers liable for risks such as illnesses brought on by pregnancy, disease, and postpartum problems2.
India leads the world in surrogacy because of the affordable care and easy access to women who want to carry foreigners’ children. According to some estimates, the Indian surrogacy market is already worth $445 million. Surrogacy costs roughly $12,000 in India against $70,000 in the US. Additionally, there are legal restrictions on the surrogate mother charging the childless couple in the US and the UK; however, there are no such restrictions in India.
Surrogacy involves basic questions about the essence of personality, human dignity qualities, individual liberty and the boundaries of choice, and the contrast between what can be sold, what must be given away, and what should not be given in any way. Opponents of surrogacy argue that the practice is equivalent to prostitution, and by that similarity, it should be disallowed on moral grounds. Surrogacy’s prospects in India range from the opportunity to exploitation, from rural women being rescued out of poverty to a futuristic nightmare of developing-country baby farms.
LEGAL DEVELOPMENTS
2002– Since 2002, commercial surrogacy has almost been permitted in India.
2005– The Indian Council for Medical Research (ICMR) issued the initial guidelines for accreditation, supervision, and regulation of ART clinics in 2005, marking the start of an effort to regularize this.
2008– The Indian Supreme Court emphasized the need for legislation to control surrogacy in 2008.
2009– The Law Commission of India then presented a report in 2009 on the need for legislation to regulate surrogacy and address related issues3.
2010– A legal contract between the commissioning parent, potential surrogate, and ART clinic was suggested by ICMR in 2010 when the guidelines were revised.
2015– The draft of the ART bill, which is still pending, was opened to suggestions by the ministry of health and family welfare. The Indian government outlawed commercial surrogacy in 2015 and barred entry for foreigners, NRIs, and POIs.
2019– In 2019, the union cabinet approved the surrogacy regulation bill. Only Indian married heterosexual infertile couples are eligible to use surrogacy services under this bill.
2021– The Lok Sabha has approved this bill, and it will become law very soon.
Highlights of The Surrogacy (Regulation) Bill, 2019:
- Other than the medical costs and insurance coverage throughout the pregnancy, the bill does not include any financial payment to the surrogate mother.
- Surrogacy is permitted when it is for intending couples who suffer from proven infertility, altruistic or altruistic reasons and not for commercial purposes. It is not for producing children for sale, prostitution or other forms of exploitation, or any condition or disease specified through regulations.
- Requirements for intending couple: Certificate of Essentiality shall be issued by District Medical Board or District Magistrate upon the fulfilment of certain requirements. The requirements are proven infertility of one or both members of the intending couple, insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
- Eligibility for surrogate mother: The competent authority shall issue a certificate of eligibility, after considering the requirements i.e., a close relative of the intending couple; a married woman having a child of her own; 25 to 35 years old; a surrogate only once in her lifetime; and possessing a certificate of medical and psychological fitness for surrogacy.
- The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act. The functions of the appropriate authority include; granting, suspending or cancelling the registration of clinics; enforcing standards for surrogacy clinics; investigating and taking action against breach of the provisions of the bill.
- The Central and State governments shall constitute the National Surrogacy Board and State Surrogacy Boards, respectively.
CASE LAWS
Baby Manji Yamada vs. Union of India- The destiny of Baby Manji Yamada, who was born to an Indian surrogate mother on behalf of a Japanese couple who had already separated before the baby was even a month old, was unknown. Ikufumi Yamada, the child’s biological father, sought to bring the child to Japan, but neither the Japanese government nor the legal system allowed for such a situation. The girl was eventually permitted to leave the country with her grandmother after the Supreme Court of India had to step in. The Baby Manji Yamada ruling had the most effect in that it prompted the Indian government to pass legislation governing surrogacy. Following the Manji case, the Supreme Court of India declared surrogacy legal in India in 2008. This decision strengthened foreign confidence in choosing India as the location for their surrogacy.4
The bill is meant to prevent surrogate mother exploitation and to protect the rights of a surrogate kid so that no one can coerce her into carrying a pregnancy out of avarice. But is that actually how things are? Do these steps go far enough to stop child and female trafficking and exploitation of the female body? Since infertile couples have no other options, there is a potential that a close female cousin may be coerced by family members to assist an infertile couple against her will. Isn’t that lady being taken advantage of? She can decide to become a surrogate against her will merely to avoid pressure from her relatives. The intended parents’ ages, which should be 40 for the lady and 45 for the father, are another concern.
Currently, they are 50 and 55 years old, respectively. Just think about how old these parents will be when their kids turn 20. The child shouldn’t have a parent who is much older than them. They might pass away when their surrogate child is still very young and may not be emotionally or financially stable. Parenting at an advanced age is particularly risky for the child and should be discouraged. There is a significant need to fix all the issues before the law is put into effect because this draft bill has received so many criticisms and flaws. Government should think things over thoroughly before making any judgments.
CITATION
1. Gupta PD, Lino A. Bikaner: Capricorn Publishing House; 2010. ‘Mothering a cause: practical knowledge of reproduction and motherhood.’
2. Surrogate Motherhood-Ethical or Commercial, Centre for Social Research (CSR) 2.
3. Law Commission of India. Report 228, 2009.
4. AIR 2009 SC.
This article is written by Sanskar Garg of School of Law, Devi Ahilya University, Indore.