Surrogacy Laws – Are They Enough To Stop Commercialization thereof?

Surrogacy means substitute and here it implies surrogate motherhood. Surrogate motherhood means the practice in which a woman bears a child for a couple who is unable to produce a child in a usual way[1]. According to Black’s Law dictionary surrogacy means the process of carrying and delivering the child of any other person.

In India we have laws concerning surrogacy. And at present, they do not have any legislative support but a bill concerning surrogacy laws named as ‘The Surrogacy (Regulation) Bill, 2016’ has been introduced in the Parliament of India which is pending till date.

Prevalent laws regarding surrogacy till date are that commercial surrogacy is legal in India since 2002. This is the main reason that India has become a hub for the surrogacy. Besides this, the other factors that make India a hub for the commercial surrogacy are-

  • Availability of surrogates.
  • In India, this process is very cheap as compared to other countries.
  • Presence of large number of ART Clinics.
  • Favourable legal environment. International Surrogacy involves bilateral issues, where the laws of both the nations have to be in uniformity else the concerns and interests of parties involved will remain unresolved.

Other than these, a Bill[2] has been introduced. The Bill seeks to restrict commercial surrogacy and imposes certain reasonable restrictions. They are:

  • It only allows altruistic ethical surrogacy surgery to only those couples who are suffering from proven fertility.
  • Such couples should have been married for atleast five years.
  • Age of intending couple must be between 23-50 years for female and 26-55 years for male parent.
  • Such couples must not have their biological child, or adoptive child or any child though surrogacy except when their child is physically or mentally challenged and have life threatening disorder.
  • The surrogate mother should be a close relative of the said couple.
  • Surrogate mother should be ensured an insurance coverage and an adequate amount of reasonable expenses in her favour.
  • Such surrogate mother can so act only once in her lifetime.
  • It should not be for any commercial purposes or for producing the child for sale, prostitution or any other forms of exploitation
  • Any other conditions as may be prescribed.

But this also have certain loopholes[3] like –

  • Clause 4(iii) (b) (II) of the said Bill lay that no person other than the close relative of the intending couple can undergo the process of surrogacy. But the Bill has nowhere defined the term close relative and no criteria have been laid to determine the close relative. This will provide an easy leeway to the intending couples to arrange a surrogate if the term ‘Close Relative’ remains undefined.
  • The Bill does not provide any specified time period for obtaining the certificates of eligibility and essentiality from the appropriate authorities.
  • Not only this, the Bill also does not lay any review or appeal procedure in case an application for the certificates is rejected.

Rationale behind such legislation

Some of the reasons behind such a legislation are-

  • An urgent need to have the legislative backing for surrogacy laws was realised in the case of Baby Manji Yamada vs. Union of India & anr[4]. In this case a Japanese couple commissioned a surrogate mother in India but they ended in a divorce. The single male parent wasn’t granted custody of the child and the mother refused to accept it. Japan gave the child humanitarian visa and allowed the grandmother to take the child on behalf of her son, given his genetic relation with the baby. During the case, however, the Supreme Court recognised that the parent of a surrogate child may be a male and recognised surrogacy as a positive practice
  • Rich people, celebrities opts this path in order to escape the labour pain
  • Due to the commercialization of surrogacy women are being exploited either by their own express will due to poor economic conditions or due to their family pressures. Also, it might lead to be a reason to raise the statistics of human trafficking.
  • In some cases parents refuse to take the custody of the child and escape from their responsibilities.

[1] New Encyclopaedia Britannica

[2] The Surrogacy (Regulation) Bill, 2016

[3] http://www.prsindia.org

[4] 2008(13)SCALE76   2008(11  )JT150; WRIT PETITION (C) NO. 369 OF 2008


ABOUT THE AUTHOR

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TESU GUPTA

Tesu Gupta is a third-year B.A.LLB(H) student of Jagan Nath University, Haryana. She has participated in many moot court competitions and paper presentations. Passionate about law and legal research, her area of interest is Arbitration. She has won the intra-university moot court competition and received the ‘Best Presenter’ award.

 

Legal backing to rent a womb in India

This article has been written by Miracline Paul SusiMiracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University.

Surrogacy is a practice by which surrogate mother becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children. While countries including Italy, Spain, Germany and France prohibit all forms of surrogacy, countries like Australia, the United Kingdom and Denmark, allow only altruistic surrogacy. Commercial gestational surrogacy, in which a woman who has no genetic link is paid to have a baby, is a growing trend in countries like India, Russia, Thailand, and Ukraine. After the first surrogate delivery in India in June 1994, India has steadily emerged as an international destination for commercial surrogacy. A study backed by the United Nations in July 2012 estimated the business at more than $400 million a year, with over 3,000 fertility clinics across India[1]. Though the ethical issues started at an early stage, the legal complications with regards to commercial surrogacy came only in the year 2008. A Japanese couple contracted an Indian woman to serve as a surrogate. But before the woman could deliver the child, the couple got divorced. The genetic father wanted the child’s custody, but Indian law barred single men from it, and Japanese law didn’t recognize surrogacy. In this landmark case the Supreme Court held that commercial surrogacy was permissible in India and the baby was ultimately granted a visa[2]. Surrogacy (Regulation) Bill 2016 proposed by the Health Ministry, banning commercial surrogacy came as a solution to this problem. The bill was cleared by the Union Cabinet on the 24th of August 2016 and is set to be introduced in the Parliament soon.

The draft bill provides for surrogacy as an option to parents who have been married for at least five years, either one of couple must have proven infertility. The age limit for the married couple ranges from 23-50 for female and 26-55 for male. Couples who already have biological or adopted children cannot commission a surrogate child. The bill clarifies the legal position of a child born of surrogacy by ensuring all legal rights as a citizen for the child. The bill bans egg donation. The surrogate mother has to be a married woman who herself has borne a child and is neither a non-resident Indian (NRI) nor a foreigner. Women can be surrogates only once and a married couple can only have one surrogate child. The couple should employ an “altruistic relative”, i.e. the surrogate mother should be a relative who is sympathetic to the situation. The bill restricts overseas Indians, foreigners, unmarried couples, homosexuals, and live-in couples from entering into a surrogacy arrangement.

Although the bill was passed with the intention of regulating the surrogacy, some of the clauses had outraged both the medical community and the general public. By allowing surrogacy for select classes of citizens the bill would violate citizens Fundamental Rights as laid down in Article 14 of the Indian Constitution. The idea of “altruistic surrogacy” expressed in the Bill greatly limits both potential surrogate mothers as well as couples wanting children.

The bill has ignored to discuss the issue of consent in detail. If a woman willingly consents to being a surrogate mother, is assured of a safe delivery; and the baby is assured of a safe home, why should she be limited to only one surrogacy? After the surrogacy industry boomed, a lot of women were dependent on the same. The issue here seems to be that the woman is “exploited” for her body. Surrogacy laws should be set out in such a way that full consent of the woman in question is assured. Here, instead of regulating the ways and policies in which a woman’s exploitation is prevented, what the bill has done is eliminate the idea entirely. The ban on egg donation in order to curb child trafficking and illegal surrogacy racket is only a blanket.  This situation cannot be resolved without censoring the entire industry[3].

Gay rights are still an evolving issue in India. While the Supreme Court is sitting on a review petition on Section 377 of the Indian Penal Code, pertaining to the status of gay rights, no clear legal stand on the issue has emerged. At this point the explicit stating of the ban of surrogacy to homosexual couples clearly shows the uncertainty of gay couple status in India.

The main issue is the question of disallowing commercial surrogacy and restricting foreigners from availing themselves of surrogacy in India. Since the inception of commercial surrogacy, a number of incidents have sparked unpleasant legal questions surrounding commercial surrogacy involving foreigners. In 2012, for example, an Australian couple who had twins by surrogacy arbitrarily rejected one while selecting the other. Such issues reveal the complexities that surround commercial surrogacy. There is need for discussing such complexities in the bill.

The draft Surrogate (Regulation) Bill seeks to comprehensively address the issue of surrogacy in India. This is indeed a step in the right direction. But the aim of bill will reach its fulfillment only when the above mentioned controversies are addressed.

[1] The Growth Of Surrogacy Industry In India And The Issues Surrounding It, 3rd October 2015, viewed at https://thelogicalindian.com/story-feed/awareness/the-growth-of-surrogacy-industry-in-india-and-the-issues-surrounding-it/

[2] Baby Manji Yamada vs Union Of India & Anr (2008) 13 SCC 518

[3] Malavika Ravi , A Critical Analysis Of The Surrogacy Regulation Bill 2016, 31 August 2016, viewed at http://feminisminindia.com/2016/08/31/critical-analysis-surrogacy-regulation-bill-2016/



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Diorama of SURROGATES: Surrogacy Draft Bill is a Legislative Disservice

This article is written by Yuvina Goyal. Yuvina is a third-year student from NUJS, Kolkata.

 

In the midst of buckets of multifarious and multidimensional challenges against the Draft Surrogacy (Regulation) Bill, 2016, the effect of the same on one of the most crucial stakeholder in the whole surrogacy setup, that is the surrogate mother herself, have not been voiced much. No doubt such strict legislation has been drafted majorly in order to check the menace of renting of wombs by the women from vulnerable and poor sections of the society and their augmenting exploitation at the hand of the middlemen, commissioning parents and even the former’s family, the complete ban, in the Bill, on the commercial surrogacy comes as a threat to the livelihood of many poor women, who have been able to educate their children, establish their business and financially support their families through surrogacy. Thence, the road leading to ideal “Parivar”, through only altruistic surrogacy as a legal option, though constructed in good intention and pious tar, leads all those women, who have hoped for a better livelihood by renting their wombs, to hell and nowhere else.

Notwithstanding the fact that, such potential surrogates are approached for their service to meet pressing want of a child or satiate whims and desires, The compensation which poor young mothers are getting through surrogacy will stop due to the new law. This in itself is problematic as it could violate the woman’s fundamental right to livelihood – in this case through surrogacy – as guaranteed under Article 21 of the constitution. Prohibiting commercial surrogacy in favour of surrogates from within the family may thereby turn surrogacy into a black market business, or lead to the victimisation and coercion of subjugated and oppressed women in marital homes to bear a child for their relative.

I completely fail to understand what is wrong in having a quid pro quo for the service rendered by the surrogate mother as it’s a win-win situation for both the parties to the surrogacy contract. Isn’t lending a womb for nine months anyway a better and convenient situation than washing dishes or working in the red-light area or as bonded labourer to earn a livelihood?

The proposed legislation may do more harm than good by leading to the exploitation of surrogates through coercion and undue influence or by trafficking them to permissible jurisdictions.

The need of the hour is to regulate the unregulated ‘surrogacy market’ and surely reassess and emend the proposed law on surrogacy to safeguard the constitutional rights of the stakeholders considering the social, legal and ethical dynamics of this sensitive subject. A straight forward ban is not the solution to the problems of the economically thin-skinned women, who in order to survive and sustain are bulldozed to serve in the baby-factory, even otherwise, it is entirely a matter of their individual choice.

The claim of the government is that they are not restricting the rights of any stakeholder and abashing the practice of surrogacy but only restricting it and still the doors of altruistic surrogacy have been kept open. Accepting this, I am totally in the favour of protecting the stakeholders involved and bringing in a law to that effect. But believe me, ‘Regulation’ in commercial surrogacy, as the title of the Bill suggests, is the need in the crunch of present times and a blanket no-no to the practice is not acceptable at all.  Respecting this voluntary service rather than curbing the incentive for rendering the same their rights to it should be secured by legally regularising both the formation and enforcement of the surrogacy agreements and by providing schemes aiding the maintenance of mental and physical health of both the mother and the child and by introducing several such noble policies.

Now, what should be done to a tree bearing sweet and nutritious fruits otherwise, but there have been incidents of smuggling of the same or the fertility of the soil in which it’s being grown is being decreased? Obviously, the trading of such fruits will be regularised and checked or fertilisers to the soil would be added in the latter case. But, one wouldn’t simply chop away the tree or WOULD YOU?

Surrogacy (Regulation Bill), 2016 – Issues around

Warnock Committee Report (1984) defines “Surrogacy is the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth”. There are two different types of surrogacy;

  1. Gestational surrogacy, and
  2. Traditional surrogacy.

In gestational surrogacy, an embryo is first created through in vitro fertilisation (IVF). The donors of the sperm and egg are usually the commissioning parents and the pregnancy is achieved by transferring this embryo to the uterus of the surrogate mother.

In traditional surrogacy, pregnancy of the surrogate mother is achieved naturally or artificially and the surrogate is genetically related to the offspring.

Both these types of surrogacy may be either altruistic i.e.unselfishly concerned for or devoted to the welfare of intending parents where the surrogate mother gets no financial assistance other than medical expenditure, insurance bill etc. or commercial where the carrier of the child is paid to rent her womb.

India is the first country in the world that legalised commercial surrogacy in 2002. Since then it has become a ‘surrogacy capital’ of the world with about 3000 surrogacy clinics and more than 2000 surrogate births annually. The estimated business volume is at Rs.900 Crore. In a bid to curb the menace of this ‘surrogacy industry’ the Union Cabinet cleared the Surrogacy (Regulation) Bill 2016. The Bill is having the following salient features:

  • No commercial surrogacy is permitted.
  • Indian couples married for at least five years and either one or both are suffering from infertility. The husband must be within the age of 26 to 55 years and the wife must be within 23 to 50 years.
  • Only altruistic surrogacy is permitted.The surrogate mothers must be close relative and must have a child. No woman can act as surrogate mother more than once.
  • The couple must not have any biological child except the child is mentally or physically challenged.
  • The surrogate child must not be abandoned under any condition.
  • Single people, live-in couples or homosexual partners are not allowed to have a baby through surrogacy.
  • Foreigners, NRI and PIOs who hold OCI cards are not allowed to opt for surrogacy.
  • National Surrogacy Board and State Surrogacy Boards will be set up and district authorities will also be involved.
  • Exploitation of the surrogate mother, sell or abandonment of the child will lead to imprisonment of at least 10 years and fine up to 10 Lakh.

But the cabinet decision is not in consonance with the constitutional provisions. Article 14 of the Constitution guarantees “equality before the law and equal protection of laws to all persons”. Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. In many judgements, the Supreme Court of India has interpreted that the ‘life’ counts all those attributes which make every facet of life meaningful, worth living and complete. Imposing conditionality on surrogacy to discriminate on the basis of single parents, NRI couples, live-in couples, LGBTQ parents or age may not pass the test of equality. It is not the State to decide the nature of Right to procreation and parenthood which make the life meaningful. There should be a logical relation between object of the bill and the means of its implementation. A 2013 survey by the Centre for Social Research along with the WCD Ministry recommended explicitly that the law should allow LGBT, single parents and unmarried couples to opt for surrogate children.But the draft ART Bills of 2014 and 2016 ignored this recommendation.

Contrary to the above the Juvenile Justice (Care and protection of Children) Act, 2015 (JJ Act) already permits inter-country adoptions from India with the only bar of single males adopting a girl child.

The Government has justified banning of commercial surrogacy and foreigner participation to protect the misuse of surrogacy. But the ground reality may be quite different. Failure of the Government to administer ban on organ donations and sex determination indicate how effectively this commercial surrogacy ban can be implemented. The guidelines governing domestic altruistic surrogacy could be counterproductive. It may result in an underground unethical trade generating relatives and surrogates impregnated in India but shifted to a safe heaven. The government of India should enact a comprehensive law to ensure proper care of Indian surrogate mothers during surrogacy treatment. There should be a regulatory agency like CARA to judge suitability of the parents, welfare issues of the child and care of the surrogate mothers. Imposition of ban may not be a solution.

However, the Surrogacy (Regulation) bill 2016 has only been approved by the Cabinet. Now it has to be passed in both the houses before enactment as law.

 

AUTHOR

Pratyusha Kar