LAWS RELATING TO SURROGACY IN INDIA

INTRODUCTION:

With the advancements in science and technology, the difficulty of having a child due to physiological issues has been solved. But with alternative solutions such as Surrogacy which involves hiring a woman to carry the baby of a couple led to many concerns and complexities in implementation. Concerns like the rights of surrogate mothers, and exploitation have been raised. This need for a proper law addressing all these concerns resulted in the passing of the law on surrogacy in India called the Surrogacy (Regulation) Bill, 2016.??

WHAT IS SURROGACY:

The word “surrogate” is synonymous with “substitute”. As the name itself says surrogacy means a woman agrees to carry the baby in the womb instead of the biological mother carrying it. The process of surrogacy can be done through two methods in which one is the traditional and the other is gestational. In the traditional method, the sperm of the intended father is will be artificially injected into the surrogate mother’s uterus making her both the biological and gestational mother. In gestational surrogacy, an in-vitro fertilized embryo is put into the uterus of the surrogate mother, who afterwards carries and delivers the child.?

Surrogacy can be altruistic and commercial. In the case of India, surrogates are usually impoverished, illiterate women from rural areas who are encouraged to participate in such transactions by their spouses or brokers in order to make quick money. These women have little control over their own bodies or lives. These women are relocated to hostels under the guise of prenatal treatment after being recruited by commercial agencies. These women end up worried about their home and children throughout the duration of their pregnancy. They are unlikely to get compensated if the pregnancy does not go well, and there is no insurance or post-natal medical or mental assistance available to them. This exploitation created a dark picture of surrogacy in the Indian public. The surrogacy which was intended to serve positive need resulted in gross exploitation.

EVOLUTION OF LAWS RELATING TO SURROGACY IN INDIA:

India legalized commercial surrogacy in 2002. This resulted in the rapid rise of various commercial businesses and firms claiming specialization in surrogacy law and counseling and supporting foreign tourists who traveled to India in quest of an Indian mother who would rent her womb for the blessing of a child. This legalization led to the establishment of many companies in foreign for the exploitation of the poor in India.

In addition, the Law Commission has proposed that commercial surrogacy be prohibited and that only altruistic surrogacy be permitted. The Indian Council for Medical Research regulated surrogacy provisions in 2005 (ICMR). The surrogate mother would be entitled to monetary compensation, the value of which would be negotiated by the couple and the surrogate mother, according to the ICMR rules. And also provided that the surrogate mother cannot provide her egg for the surrogacy and must surrender all parental rights to the surrogate kid.?

THE SURROGACY (REGULATION) BILL, 2016:

The Surrogacy (Regulation) Bill, 2016 was passed by the Loksabha in 2018 after considering the reports that were presented before the standing committee. It was based on the prohibition of commercial surrogacy and promoting altruistic surrogacy. The bill also safeguarded the surrogate mother and the child from being exploited.?

Under this bill, only the infertile couple who has qualified the criterion that was provided can have the child with the aid of a woman for surrogacy. But the provisions relating to the medical expenses and monetary compensation were not included in this bill. One of the highlights of this bill is that it is only providing surrogacy to Indian citizens and prohibited foreign nationals. The drawbacks of this bill are it does not allow homosexuals, single parents, and couples who already had children for surrogacy. The law covers provisions governing surrogate child custody as well as the punishments for violating such requirements.

THE SURROGACY (REGULATION) BILL, 2019:

This bill addressed the issue in-depth compared to 2016 and addressed its complexities. This bill provided surrogacy boards at both the central and state levels to ensure the proper implementation of the laws.?

Under this bill, before proceeding with surrogacy, the couple must get a certificate of essentiality as well as a certificate of eligibility. It further states that intending parents should not, under any circumstances, abandon the child born through surrogacy. It also added a separate criterion for surrogate mothers. It stipulates that the surrogate for the intended couple must be a close relative who is married and has a kid of her own. She should be between the ages of 25 and 35, have never previously served as a surrogate, and be mentally and physically fit.?

According to the legislation, a child born through surrogacy must be the biological child of the intended couple. In addition, the surrogate kid is entitled to all of the same rights as a natural child. The bill also oversees the functioning of surrogacy clinics. All surrogacy clinics in the country must be registered with the relevant government in order to execute surrogacy or related operations. The bill's main feature is that it covers the surrogate's medical expenditures not only during the pregnancy but also postpartum.

Commercial surrogacy, exploiting the surrogate mother, abandoning, exploiting, or disowning a surrogate child, and selling or importing human embryos or gametes for surrogacy are all prohibited under the bill. Such violations can result in a 10-year prison sentence and a fine of up to ten lakh rupees. The law specifies a variety of charges and sanctions for additional violations of the bill's provisions.

THE ASSISTED REPRODUCTIVE TECHNOLOGIES (ART) ACT:

In September 2020, the ART Act was presented in the Lok Sabha and referred to a Standing Committee for modifications. It was later enacted in both Houses of Parliament in December 2021, together with the Surrogacy Act. In January 2022, this law became effective.?

All procedures used to acquire a pregnancy by handling sperm or egg cells outside the human body and putting the embryo into the woman's reproductive system are considered to as Assisted Reproductive Technologies (ART). Every ART clinic and the bank must be registered with the National Registry of Banks and Clinics of India, which will keep a central database of such institutions' information. Clinic and bank registrations are valid for five years and can be renewed for another five years. If the institution violates the Act's restrictions, it may be terminated or suspended. Clinics are prohibited from disclosing a child's sex and are required to screen for genetic disorders before implanting an embryo in a woman's body. Such acts are punishable by imprisonment for 5 to 10 years or a fine of Rs 10 to 25 lakhs.

ART services are required to be regulated by the National and State Boards established under the Surrogacy Act. These bodies will provide policy advice to the government, assess and supervise the law's implementation, and develop a code of conduct for ART clinics and banks.

THE SURROGACY (REGULATION) ACT, 2021:

Surrogacy is defined in this act as a situation in which a woman gives birth to a child for an intended couple with the intention of handing the kid over after birth. This statute only permits altruistic surrogacy and only for couples who have been diagnosed with infertility. Surrogacy for commercial interests, such as selling, prostitution, or any other type of exploitation, is also prohibited.

The fetus will only be aborted with the surrogate mother's consent and with the permission of the authorities, in compliance with the Medical Termination of Pregnancy Act. The central and state governments are supposed to create a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) within 90 days of the Act's implementation, respectively. This organization is in charge of enforcing surrogacy clinic standards, investigating violations, and making recommendations for improvements. Surrogacy clinics must also apply for registration within 60 days after the appointment of the competent authorities.

Commercial surrogacy, selling embryos, exploiting, and abandoning a surrogate child are all prohibited under the Act. These are punishable by up to ten years in jail and a fine of up to Rs. ten lakh.?

CONCLUSION:

Though there are laws prohibiting commercial surrogacy, the exploitation is still taking place on a large scale. Without acknowledgment of the ground reality, the implementation of laws goes in vain. According to the reports, a place called Anand in Gujarat state which is usually popular for Amul’s dairy is also now famous for commercial surrogacy where women who are in need of money were offered monetary benefits to undergo the process of surrogacy and being exploited.?

Under the banner of alternative technologies for infertility, centers are illicitly dealing with commercial surrogacy in which they target impoverished young women and tag them as the couples suffering from infertility to undergo the surrogacy process. The stringent implementation of laws and the acknowledgment of the workings of authorities will only be a solution to this problem.?

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What is Surrogacy

Legal provisions relating to surrogacy in India

Challenges/ concerns

Contemporary status

Suggestions

Conclusion