India is considered to be the commercial market for surrogacy. Surrogacy is the practice where another woman carries and gives birth to a baby for a couple who want to have a child. It might become necessary in case of absence or malformation of the womb of the lady, recurrent pregnancy loss, or repeated in vitro fertilisation (IVF) implantation failures.
The discussion over surrogacy and its related laws has once again come to the forefront when the news of producer and actor Karan Johar who became a father of twins through a surrogate mother, last month came out!
The cheap availability of labour coupled with high international demand has fuelled the growth of this industry in our nation. Commercial surrogacy was made legal in India since 2002 with Indian Council of Medical Research (ICMR) laying down some pro-surrogacy guidelines which inter alia include prohibition of sex-selective surrogacy, requiring birth certificate of the baby to have the names of only the commissioning parents, requiring at least one of the commissioning parents to be a donor, requiring a life insurance cover for the surrogate mother and ensuring right to privacy to surrogate mother and the donor.
However, there was no legislative backing to surrogacy and the legal aspects over it seemed to be rather unclear, unsettled and vague. The need for a proper legal system regulating the practice of surrogacy was felt in the case of Baby Manji Yamada v Union of India and Anr(2008) 13 SCC 518. In 2007, a certain Dr. Patel working at the Akanksha Infertility Clinic, arranged for Japanese couple Ikufumi and Yuki Yamada to have a surrogate baby by Pritiben Mehta. Pritiben was impregnated using a mix of Yamada’s sperm and an anonymous Indian woman’s egg. However, in the months to come, Yamada and his wife filed for divorce. None of the Indian laws covered whose child the baby (Manji) was: the woman who donated the egg, Pritiben, or Yuki Yamada. Furthermore, there was even a petition filed later in court that Dr. Patel was running a child trafficking racket by abusing the lack of surrogacy laws, and gaining easy money by enabling surrogacy.
Though the case was solved and the baby was given to his grandmother, the Supreme Court expressed the urgent need to enact laws on surrogacy while deciding the case.
A draft ART(Assisted Reproductive Technology) Bill was formulated in 2010 but never passed as a law. Thus, the result was booming surrogacy industry with lax laws and no enforcements.
A study conducted in July 2012, backed by the UN, put the surrogacy business at more than $400 million with more than 3000 fertility clinics all over the country.
There were no rules as to how much compensation a surrogate mother should get and can get. They are over-exploited and have turned into baby making machines.
In this light, Surrogacy (Regulation) Bill 2016 was introduced in LokSabha. It has not been passed yet.
The prime aim of this act is to abolish commercial surrogacy which is defined as surrogacy or its related procedures undertaken for monetary benefit or reward (cash or kind) exceeding basic medical expenses and insurance coverage.
The bill proposes to regulate surrogacy in India by establishing National Surrogacy Board at the central level, State Surrogacy Board and Appropriate authorities in state and Union Territories.
It only allows altruistic ethical surrogacy to intending infertile couples between the age of 23-50 years and 26-55 years for females and males respectively. The bill seems to eradicate the inside business often involved in surrogacy. This is very necessary in places like Gujarat where baby farms exist. The unprivileged parents are given as surrogates to potential mothers and exploited as baby carriers. Middlemen play a large role and take huge slices of amount given.
But, the bill has been criticized since it narrows down the realm of surrogacy. It allows only intending couples who are legally married for at least 5 years and have obtained the eligibility certificate from appropriate authority to have baby through surrogacy. Various restrictions have been put on the surrogate mother too who necessarily needs to be a close relative of the intending couple.
It does not allow surrogacy to the following people :
- Homosexual couples
- Single parents
- Couples in live-in relationships
- Couples with children ( biological or otherwise)
However, in what may turn out to be a good news for single men and women who wish to have baby through surrogate mother, a Supreme Court Bench led by Justice RanjanGogoi lately, allowed a representation to be made before the committee to consider including a “specific provision” in the Bill so as to facilitate single persons also to embrace parenthood through surrogacy.
Following table depicts international comparison of surrogacy laws:
|Country||India||United Kingdom||South Africa||Russia|
|Type of Surrogacy involved(altruistic or commercial)||Altruistic. Commercial prohibited||Altruistic. Commercial prohibited||Altruistic. Commercial prohibited||Commercial allowed|
|Requirement of being married||Yes||No (include intending couples living simply as partners)||No (Single male or female allowed)||No (Single woman allowed)
|Existence of a medical reason||Must prove infertility||No||Not able to give birth to a child and such condition is permanent and irreversible||Gestation and birth of child is impossible due to medical reasons.|
Although the bill is analysed and criticized, it can be said that the introduction of the bill is itself laudable since it was need of the hour and with time as well as negotiation a perfect law would hopefully come to existence.
Source: India- Surrogacy (Regulation) Bill 2016
UK-Surrogacy Arrangements Act 1985
South Africa- Children’s Act 2005
Russia- Art 51,52 Family code 1995:, Federal law on fundamentals of protection of Citizens’ health in Russian federation 2011.
ABOUT THE AUTHOR
Krupa Thakkar is currently pursuing BLS LLB from Government Law College, Mumbai. She is presently in her second year. Always eager to learn new things, she keeps herself updated with happenings around the world. Though not an extrovert, she makes sure that she performs the best whenever she is allotted any task.