Legality of Surrogacy Contract in India

INTRODUCTION

“―Currently, the most significant risk to children in the Surrogacy context comes not from the actions of either set of parents but from the uncertain status of the law, which. can lead to the child being subjected to years of litigation to determine who will be considered to be their legal parents.”

…Lori B. Andrews

“Salus Populi Suprema Lex means the welfare of the people is the supreme law. Jeremy Bentham looked upon the law as an instrument for the greatest good of the greatest number, and correctly so. The Law, at a particular time, showcases the societal mindset and undergoes radical societal metamorphosis to align itself with social change. The question of when to employ this instrument for addressing social issues is beset with many conceptual uncertainties.” [1]

Marriage is the social institution through which a married couple seeks to have a child. However, the yearning of an infertile couple remains unsatisfied. Infertile couples now have new options for what is known as Surrogacy in medical parlance thanks to modern science and technology.

HISTORICAL BACKGROUND

Surrogacy is not an option when it comes to contemporary reproductive technology. It has been done since biblical times. Sarah, Abraham's barren wife, orders her maid Hagar to bear her child by getting Abraham to sleep with her in the Old Testament. Similarly, Rachel, Jacob's infertile wife, gives her maid Bilhal permission to have a child by persuading Jacob to sleep with her. Some claim that the practice of Surrogacy dates back to before the Bible was written. Purana Vishnu heard Vasudev's pleadings in the Bhagavata, pleading with Kansa not to slaughter all new sons. When Vishnu heard these requests, he had an embryo from Devkis' womb moved to Rohini, Vasudev's second wife. Rohini gave birth to Krishna's sibling, Balaram, and nurtured him in secret, while Vasudev and Devkis informed Kansa the infant was born dead.

“The first Surrogacy agency in America was opened by a lawyer back in late 1970. He went on to create many more agencies that abided by the Surrogacy arrangement laws. After this, there have been more than 3000 births due to Surrogacy arrangement laws. It is worth noting that the world’s second and India’s first IVF (In vitro fertilization) baby named Kanupriya / Durga was born in Kolkata on October 3, 1978, about two months after in Greater Britain on July 25, 1978, since then, Assisted Reproductive Technology has developed. [2]”

MEANING

“The word Surrogate has its origin in Latin Surrogates is a past participant of Surrogate, meaning substitute, that is a person appointed to act in place of another. Thus, the Surrogate mother is a woman who bears a child on behalf of another woman either from her own egg or from the implantation in her womb of a fertilized egg from another woman”.[3]

“Surrogacy is an arrangement in which a woman agrees to pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belongs to her or her husband, with the intention of carrying it to term and handing over the child to the person or persons for whom she is acting as a Surrogate; and a Surrogate mother is a woman who agrees to have an embryo generated from the sperm of a man who is not her husband, and the oocyte for another woman implanted in her to carry the pregnancy to full term and deliver the child to its biological parents(s).”[4]

CATEGORIES OF SURROGACY

Surrogacy has been classified as.

1)????Traditional Surrogacy is known as the straight method of Surrogacy. It is a pregnancy in which a woman supplies her own egg, which is fertilised by artificial insemination, and the fetus, as well as gives birth to a child for someone else.

2)????Gestational Surrogacy is known as the host method. It is a pregnancy in which one woman called the genetic mother provides the egg. Which is fertilized, and another woman (the Surrogate mother) carries the fetus and gives birth to the child. That is, an embryo created by the process of IVF (in-vitro fertilization) is implanted into the Surrogate mother.

Traditional Surrogacy may be called partially or genetically contracted motherhood because the Surrogate mother is impregnated with the sperm of the intruding father, making her both the genetic and the gestational mother, the child shares the makeup of the commissioning father and the Surrogate mother.

3)????In Vitro Fertilization is a process by which egg cells are fertilized by sperm outside the body in vitro. In Vitro Fertilization is a major treatment when the other methods of reproduction have failed. The process involves hormonally controlling the ovulatory process, removing ova(eggs) from the woman's ovaries, and letting sperm fertilize them in a fluid medium.

4)????Artificial insemination is a process by which sperm is placed into the reproductive tract of a female for the purpose of impregnating the female by using means other than sexual intercourse or natural insemination. In humans, it is used as an assisted reproductive technology, using either a sperm donor in the case where the male partner produces no sperm, or the woman has no male partner.

5)????Altruistic Surrogacy means the Surrogacy in which no charges, expenses, fees, remuneration, or monetary incentive of whatever nature, except the medical expenses incurred on the Surrogate mother and the insurance coverage for the Surrogate mother, is given to the Surrogate mother or her dependents or her representative.

6)????Commercial Surrogacy is a form of Surrogacy where the gestational carrier (the Surrogated mother) is paid to carry a child to maturity in her womb and is usually resorted to by well-off infertile people who can afford the cost involved or people who save and borrow in order to complete their dreams of being parents. This medical procedure is legal in several countries, including India, where due to excellent medical infrastructure, high international demand, and ready availability of poor Surrogates, it is reaching industry proportions. Commercial Surrogacy is sometimes referred to by emotionally charged and potentially offensive terms such as womb for rent, outsourced pregnancies, or baby farms.

“The Universal Declaration of Human Right Perspective- Article 16 of the Universal Declaration of Human Rights says that:

1.????Men and women of full age, without any limitation due to race or nationality, have a right to marry and to find a family.

2.????The family is natural and fundamental to the protection of society and the state.”

“In India, Surrogacy is fast-growing, but an unregulated industry, according to an earlier confederation of Indian industry estimate, was expected to generate as much as $2.3 billion annually by 2012. The last few years have seen a 150 % rise in Surrogacy cases in India. The Gujarat town of Anand is known as the hub of Surrogate mothers.” [5]

“In the United States of America, a Surrogate mother costs approximately $ 70000. However, in India, it is slashed down to $7000. In one report, it is claimed that there are about 500 fertility treatment clinics across the country, with more than a tenth in Mumbai alone”.[6]

Although the ICMR has established national rules to govern Surrogacy, these guidelines are straightforward. The childless couple requires all Surrogate moms to sign a contract. There are no provisions for what will happen if the contract is broken.

?LEGISLATIVE FRAMEWORK

Despite the Indian Government's strong efforts to implement a variety of regulatory systems, there remained a significant absence of oversight and regulation of Surrogacy until 2016. In India, however, commercial Surrogacy became permitted in 2002. The publication of the ICMR in 2005, under the legislative oversight of the Minister of Health and Welfare, was the first thorough step toward legal control. As a result, the Surrogate mother was required to sign a contract before the process could begin. These instructions, however, were not legally binding. Still, there was a lack of legal controls from the Government.

1. “Assisted Reproductive Technology Regulation Bill, 2008- Surrogacy agreements were to be considered like other legal contracts in order to be legally enforceable under the Bill, which basically meant that the terms of the 1872 "Indian Contract Act" applied to Surrogacy arrangements. The bill made it permissible for the Surrogate mother to receive monetary compensation when she abandoned her parental rights to the child, which theoretically justified commercial Surrogacy. According to the Bill, Surrogate moms must be between the ages of 21 and 45. It also established a restriction on the number of times a woman may legally become a Surrogate. When the Bill was posted on the Ministry's website, it garnered substantial public criticism, with the major complaint being that it largely protected ART institutions while ignoring the Surrogate mother and child's rights. It was also claimed that the bill favored the method' ultimate commercialization disproportionately.”

2. “The Assisted Reproductive Technology Regulation Bill, 2010- Due to the widespread use of Surrogacy and the numerous problems and controversies surrounding the procedure, the Government formed an expert committee to investigate and recommend a course of action. The committee delivered a copy of the 2008 bill and suggested that it be revised and given to the legislature. The amended Bill was created by the Ministry of Health and Family Welfare. The bill, like its predecessor, sought for a national framework for assisted reproductive technology regulation and monitoring. A number of changes were also implemented, including the requirement that the Surrogate mother be under 35 years old.

• ?It also required the lady to be tested and examined to verify she was clear of STDs and other contagious diseases.
• ?It permitted any woman, known or unknown, related or unrelated, to be a Surrogate.
• If the treatment is being performed for the benefit of a foreign couple, they must submit the necessary papers before the process may begin.”

3.?????The Surrogacy Bill, 2016.- “The bill was first presented in 2016. A month later, on November 21, it was sent to a standing committee. On December 19, 2018, the bill was passed. For the first time in India, the bill declared commercial Surrogacy illegal while also encouraging altruistic Surrogacy. A number of measures have also been implemented to protect the Surrogate mother and her kid. The Bill limits the use of the ART procedure to married straight heterosexual couples who are infertile. It also establishes the National and State Surrogacy Boards and Appropriate Authorities, as well as the registration of Surrogacy clinics.

Important provisions of the Bill include.

• Mandatory Surrogacy Clinic Registration
• No Surrogacy outside of the licensed clinic is permitted. Commercial Surrogacy is prohibited by any expert or medical practitioner.
• The clinic or anyone else who urges a woman to be a Surrogate is not authorized to promote, facilitate, or market commercial Surrogacy in any way.
• The bill aims to prohibit abortion without the mother's permission and the approval of the necessary authorities.
• Surrogacy is only approved as an altruistic solution for infertile couples.
• Section 4(3) outlines the requirements for the commissioning parents.
• Obtaining a certificate from a competent authority confirming infertility as determined by the district medical board,
• Surrogate mother and child insurance?
• Court order from a magistrate of the first class or higher regarding custody and parenthood of the kid
• A certificate of eligibility stating that the Surrogate mother is medically and psychologically suitable for the procedure.
• An eligibility certificate for the commissioning parents stating that they are between the ages of 23 and 55, have been married for five years, and have no children of their own.
• An eligibility certificate for the commissioning parents stating that they are between the ages of 23 and 55, have been married for five years, and have no children of their own.
• Section 7 states that the child born to the couple will be regarded as the couple's natural child and that any acts of abandonment based on defects or gender would be prohibited by law.
• Section 9 prohibits the Surrogate mother from aborting the child against her will,
• Section 35 establishes detailed measures to protect the Surrogate mother from exploitation.
• Section 36 outlines the penalties for violating any of the aforesaid rules, which include imprisonment for a term of not less than five years and a fine of up to ten lakhs.
• Section 37 describes the penalties that will be imposed in cases of commercial Surrogacy.

The Act provides for the establishment of National and State Surrogacy Boards responsible for advising and assisting the Government in formulating a code of conduct governing the functioning of the Surrogacy Clinic. The SSBs are also tasked with monitoring and supervising the proper implementation of the Act. The 2016 bill, though passed by the Lok Sabha, lapsed due to adjournment sine die of the parliament session.”

4.????Surrogacy (Regulation) Act of 2021-Surrogacy is defined under the Surrogacy Regulation Act of 2021 as a procedure in which a woman bears a child for an intended couple with the aim of handing the child over after delivery. The bill outlaws commercial Surrogacy and only authorizes altruistic Surrogacy, in which the Surrogate mother receives no monetary remuneration other than medical bills and insurance coverage throughout the pregnancy.

Surrogacy is available to married women and widows, according to the bill. Surrogacy and Assisted Reproductive Technology (ART) are options for divorced women, depending on their circumstances. For Surrogacy, foreign couples must adhere to our country's laws. =

Functions of the National Surrogacy Board

• Provide policy advice to the central government.
• Oversee the operation of state Surrogacy boards.

Offenses for Contraventions

?Undertaking or commercial Surrogacy advertising

? Taking advantage of Surrogate mothers.

? Neglecting or abusing the Surrogate kid.

As per?Section 2(S), "Intending Mother means an Indian woman who is a widow or divorced between the age of 35 to 45 years and who intends to avail of the Surrogacy.”

Chapter 2(Section 3) – (Parentage and Abortion of Surrogate Child)- in which child born by Surrogacy procedure will be considered to be the biological child of the intending Couple or intending woman. It requires the written consent of the Surrogate mother and the authorization of the appropriate authority for the abortion of the Surrogate child. The authorization must be according to the medical termination of the Pregnancy Act, of 1971. Further, before the embryo is implanted in her womb, the Surrogate mother will have the option to withdraw from the Surrogacy.

Chapter 3(section 4-10)

Section 4-?talks about the five purposes for which Surrogacy is permitted:?

1. When an intending couple or intending woman of India has a medical indication for gestational Surrogacy.
2. When it is only for Altruistic Surrogacy purposes.
3. ?When it is not for commercial purposes or commercialization of Surrogacy or Surrogacy procedures.
4. ?When it is not for producing children for sale, prostitution, or any other form of exploitation.
5. ?Any other condition or disease as may be specified by a regulation made by the board.

Eligibility criteria for intending couples who need to obtain two certificates issued by the appropriate authority-

1. The Certificate of Essentiality (Section 4(iii)(a))
2. ?The Certificate of Eligibility (Section 4(iii)(b))

An Eligibility Certificate for intending?the Couple is given separately by the authority concerned with fulfilling the conditions in Section 4(iii)(c). A certificate of a medical indication in favour of either or both members of the intending Couple or intending woman?

1. For Gestational Surrogacy from a district medical board.
2. An order of parentage and custody of the Surrogate child was passed by a Magistrate Court.

Insurance coverage?for 36 months (3 years) from 16 months provided in the earlier version, which covers postpartum delivery complications for the Surrogate.

Surrogate Mother Eligibility: - No woman, other than an ever-married woman having a child of her own and between?the age of 25-35 years on the day?of implantation shall be?a help in Surrogacy by donating?her eggs /oocyte or otherwise or?a Surrogate mother.A willing woman shall act as a Surrogate mother and be permitted to undergo a Surrogacy procedure as per the provision of this Act.

The intending woman shall approach the appropriate authority with a willing woman who aggresses to act as a Surrogate mother.?No woman shall act as?a Surrogate mother if-

1. She was a Surrogate mother more than once in her lifetime.
2. The Surrogate mother cannot provide her gametes for Surrogacy.
3. A certificate of medical and psychological fitness for Surrogacy and Surrogacy procedure from a registered medical practitioner.

Section 8- Right of the Surrogate Child- A Child born out of Surrogacy is the legitimate child of intending Couple, and said child is entitled to all rights and privileges available to a natural child under any law time being in force.

Chapter VII (Section 36-43) talks?about the penalty of up to 10 years imprisonment and fines of up to 10 lakhs Rs for offenses like advertising or undertaking commercial Surrogacy.

?Chapter IV (Sections 11-14)- The concerned authority must register the Surrogacy clinic. Surrogacy or procedure-related Surrogacy must be completed within 60 days after the authority's appointment. Surrogacy clinics intended for women and intending couples can file an appeal against such orders as certificate rejection or cancellation, registration, and the application submitted by the competent authority to the State/Central Government. The validity of the “Registration Certificate" is for three years.

Abortion of the Surrogate child under Indian law- The Surrogate mother's written consent, as well as the approval of the authorized authorities, is required to abort the Surrogate child. The Medical Termination of Pregnancy Act of 1971 is met by authorization. Surrogate mothers have the option to quit the surrogacy before the embryo is implanted in their womb.

FORMATION OF SURROGACY CONTRACT

1. Element of Consent-?Like Sections 13 and 14 of the Contract Act 1872, the importance of unrestricted and unqualified permission for any transaction becomes more critical in the Indian context, where Commercial Surrogacy is not considered unlawful. A presumption of undue influence is created when the blood or marriage tie was such that the prospect of domination existed. This means that it will be assumed that those trying to enforce the contract used their position to influence the Surrogates' will, and the Surrogate Mother has the right to withdraw the contract under Section 19-A. In the?landmark judgment of the Re Baby M?case, the court noted?that under the contract. "The natural mother is irrevocably committed before she knows the strength of her bond with her child. She never makes a totally voluntary, informed decision, for quite clearly any decision before the baby's birth is, in the most important sense, uninformed, and any decision after that, compelled by a pre-existing contractual commitment".?
2. ?Unconscionability Principle- Section 16(3)-The recognition of this freedom notion renders a change in the judgment ineffectual as a reason for non-performance, but it does not stop the court from protecting weaker parties, especially where bargaining power is unequal.?Section 16(3)?applies to instances that the courts determine to be 'unconscionable' by the facts. In the Surrogacy contracts, procedural factors such as the Surrogate's inability to grasp the terms or strong exemption provisions shielding the fertility clinic from liability, among other things, might determine this. It can also be developed from substantive causes like low pay or strict conditions. These statements may be indicative of vulnerable person exploitation, which is frequent in India as a popular tourist destination, particularly for foreign parties due to the availability of inexpensive Surrogates. They can be used to prove undue influence.
3. The legality of Object – Section 23-?Surrogacy contracts are illegal or against public policy and must be addressed independently. As per the Surrogacy Regulation Act of 2021, Commercial Surrogacy is illegal and punishable.
4. Eligibility criteria for an Intending Couple- The couple needs to be married and they must receive a "Certificate of Essentiality" and a "Certificate of Eligibility". India's Surrogacy program requires that one of the partners must have a valid Indian Passport to participate.
5. Essentiality certificate-A certificate from a District Medical Board stating that one or both members of the intending couple are infertile. Order of parentage and custody of the Surrogate child has to be passed by a Magistrate Court.
6. Qualifications for Intending Couples-

• A minimum of Five years of marriage and a citizen of India.
• The woman should be between 23 and 50, while the husband should be between 26 and 55.
• Couples should not have any surviving children (biological, adoptive or Surrogate) unless for a kid who is intellectually or physically challenged or has a life-threatening or deadly disease.

7. Eligibility criteria for the Surrogate Mother

• Need to be a close family friend of the pair who's getting married.
• Age can be between 25 and 35.
• One can be a Surrogate mother once in her life.
• Surrogate Mother needs to have a medical and psychological fitness certificate before the process started.
• The Surrogate Mother can't provide her gametes (eggs) for Surrogate motherhood.

LEADING CASES

1. B K Parthasarthi vs. Government of Andhra Pradesh -"The Andhra Pradesh High Court affirmed an individual's right to reproductive autonomy as a component of his Right to Privacy, agreeing with the?U.S. Supreme Court's ruling in Jack T Skinner v. the State of Oklahoma,?which described the freedom to reproduce as one of man's basic Civil Rights.” [7]
2. Baby M case -"Despite allowing Commissioning Parents' custody in the child's best interest, the New Jersey Supreme Court determined that Surrogacy contracts are against public policy. It should be noted that Surrogacy regulations vary by state in the United States.”[8]
3. Jaycee B case - "A child was born to a Surrogate mother using sperm and eggs from anonymous donors because the infertile Couple could not create their embryo using the in vitro fertilization techniques. The Couple chose to use anonymous donors rather than asking the Surrogate to use her eggs because of the Baby M. case in New Jersey in which the Surrogate had eventually refused to hand over the baby, saying that she was its biological mother and her right to raise the child pre-empted the commissioning parents. The child thus had five people who could lay claim to parenthood - a Genetic Mother, a Commissioning Mother, and a Surrogate Mother. A Genetic father and a Commissioning father one month before the baby's birth, Jaycee, the intended parents, separated and John sought to rescind his obligations under the Surrogacy contract to avoid paying child support for Jaycee. Luanne sought both custody and support from her ex-husband. The court battle continued, and for three years, Jaycee did not have a legal parent.”.” [9]
4. Baby Manji Yamada v Union of India -This case concerned the production/custody of a child Manji Yamada given birth to a Surrogate mother in Anand, Gujarat, under a Surrogacy Agreement with her entered into by Dr. Yuki Yamada and Dr. Ikufumi Yamada of Japan. The sperm had come from Dr. Ikufumi Yamada, but the egg was from a donor, not from Dr. Yuki Yamada. There were matrimonial discords between the commissioning parents. The genetic father, Dr. Ikufumi Yamada, desired to take custody of the child, but he had to return to Japan due to the expiration of his visa. The Municipality at Anand issued a birth certificate indicating the genetic father's name. The child was born on 25 July 2008 and moved on 03 August 2008 to Arya Hospital in Jaipur following a law-and-order situation in Gujarat. The baby was provided with much-needed care, including breastfed by a woman. The grandmother of the baby Manji, Ms. Emiko Yamada, flew from Japan to take care of the child and filed a petition in the Supreme Court under Article 32 of the Constitution. The Court relegated her to the National Commission for Protection of Child Rights constituted under the Commissions for Child Rights Act, 2005. Ultimately, baby Manji left for Japan in the care of her genetic father and grandmother.” [10]
5. Israeli Gay Couple's case- "The Gay Couple Yonathan and Omer could not adopt or have a Surrogate mother in Israel. They came to Mumbai, and Yonathan donated his sperm. They selected a Surrogate. Baby Evyatar was born. The Gay couple took their son Evyatar to Israel. The Israeli government had required them to do a DNA test to prove their paternity before the baby's passport, and other documents were prepared.” [11]
6. Jan Balaz v Anand Municipality - "The matter in question concerns granting birth certificates and passports to young children. The two minor children born through a Surrogacy arrangement received birth certificates in this case. The mother's name was listed as the gestational Surrogate and an Indian national on the birth certificate issued by the competent jurisdiction's registrar of births and deaths. The name of the German father was also listed on the birth certificates. The egg donor was also claimed to be an Indian woman, although the Gujarat High Court did not reveal her identity. In the facts and circumstances of the case, the Gujarat High Court ruled that the two minor infants produced through a Surrogacy agreement were Indian citizens by birth. As a result, they could not be denied a passport to go overseas, which would violate Article 21 of India's constitution.After a caring and compassionate approach, the Hon'ble Apex Court granted the required remedy to permit the further travel of the two young Surrogate children to Germany. Given the lack of particular legislative law on the question of Surrogacy in India, the case will continue for adjudication of more significant issues of public interest.”[12]

CONCLUSION AND SUGGESTION

Surrogacy is a controversial topic that presents ethical concern about a woman going into a contract to provide reproductive services. The rights of the Child born via surrogacy as well as the autonomy and dignity of the surrogate mother, are the key problems surrounding surrogacy. As per my thought surrogacy should not be referred to as “Baby Selling” or “Commodification of Reproductive Labour”. Surrogacy allows them to experience the joy of being a parent, something not everyone is blessed with. They cannot be denied the right to have their own kid, even if they have the alternative to adopting.

A prohibition on commercial surrogacy is not the best course of action since it will not safeguard surrogates from exploitation. Even Altruistic Surrogacy may put disadvantaged woman at danger in a nation like India, where we are still waging the war for gender equality. As a result, it may be determined that the government should take responsibility and legalize Commercial Surrogacy while enacting tight regulations.There is no proper legislation governing the validity of surrogacy contracts. Though, the SRA 2021 and ART Act 2021 are a welcome move aiming to prevent abuse, enlists duties of parties and clinics, it still has its flaws. The waiting period of 5 years under the act- time consuming and curtails the wish to start a family soon. The altruistic model expects a woman to go through the physical and emotional tolls of surrogacy fee of cost and only out of ‘compassion’. Such an expectation is paternalistic and patriarchal in its approach. Its effect is the denial of a legitimate source of income to surrogates.

The shortcoming of new act is that surrogacy allowed only for heterosexual couples not for homosexual or for those who want to be single parents. There is an urgent need to have a specific legislation for the regulation and control of surrogacy in India dealing with issues like access to surrogacy, liability issues, interest of the child, parentage of child, etc. The terms and conditions of contract of surrogacy should be clearly laid down and a proper balance should be maintained between the duties of surrogate mother and the protection of dignity and her rights. Surrogate women’s health must be prioritized though she’s provided insurance for medical expenses, health issues, etc., No compensation provided for lost of wages.

[1] Raghav Sharma, in an article titled “An international, moral and legal perspectives: The call for Legalization of Surrogacy in India."

[2] Law Commission of India (Report No 228) Aug 2009, P-9

[3] Law Commission of India (Report No 228) Aug 2009

[4] Artificial Reproductive Technique (ART) Guidelines

[5] Raghav Sharma, in an article titled “An international, moral and legal perspectives: The call for Legalization of Surrogacy in India."

[6] Raghav Sharma, in an article titled “An international, moral and legal perspectives: The call for Legalization of Surrogacy in India."

[7] (AIR 2000 A PN156)

[8] (537 A 2d 1227, 109 NJ 396(NJ 1988)

[9] (42 Cal App 4th 718 (1996)

[10] (J.T. 2008 (11) SC 150)

[11] The Times of India, Mumbai,18-11-2008

[12] (AIR 2010 Guj 21)??????????