Surrogacy Laws in India: Overview
Jul. 25, 2020 • Samiksha Gupta
Profile of the Author: Garv Singh is a 3rd year law student pursuing B.A.LLB from Amity Law School, Delhi, GGSIPU. He has a keen interest in the Indian Criminal Jurisprudence and Constitutional Law.
INTRODUCTION
Surrogacy is an arrangement, more often than not endorsed by a legal and social agreement, whereby a woman called ‘Surrogate mother’ approves/agrees to bear a child for another person, who will become the child's parents called ‘Intended parents’ after the birth. The surrogate mother becomes pregnant through an embryo transfer and carries the pregnancy for the intended parents. The intended parents assume full parental rights, and the surrogate is compensated in exchange for her services.
People may go for a surrogacy arrangement when normal pregnancy is medically impossible or quite dangerous/impractical to bear. When pregnancy risks are too dangerous for the intended mother, or when a single man or a male couple wish to have a child, Surrogacy is considered one of most supported reproductive method. In India, surrogacy agreements are a quite common procedure to bear children biologically despite the child not being in the intended mother’s womb. Famous Indian celebrities including Shahrukh Khan and Karan Johar are also among millions who have opted for surrogacy in India.
TYPES AND METHODS OF SURROGACY
- In surrogacy arrangements, the role of surrogate mother being the biological mother may or may not be involved which in turn categories them into 2 methods of surrogacy: -
- Traditional surrogacy-
In this method of surrogacy, the surrogate mother artificially gets impregnated with the sperm of the baby’s biological father. The procedure includes placing the sperm into her uterus procedurally. The child can then develop in surrogate mother’s womb. In this method, the surrogate mother will also be the biological mother of the child. Traditional surrogacy is suitable for surrogate herself who provides the eggs.
People who use traditional surrogacy may include: -
- Single men.
- Same-sex male couples.
- Intended mothers who cannot produce healthy eggs.
- Gestational surrogacy-
This is the method of surrogacy, for those women who cannot conceive and have children naturally on their own and still wishes to be the biological mother. Here In Vitro Fertilization (IVF), eggs are implanted into the surrogate mother’s uterus from the women who wants to be the biological mother of the child along with the collected sperms of the biological father. The surrogate mother then carries the child in her womb until she gives the birth. Gestational surrogacy is suitable for intended parents and/or donor egg and/or donor sperm and/or donated embryos in any combination. Here the surrogate mother is not the biological mother of the child.
People who use gestational surrogacy may include: -
- In surrogacy arrangements, the role of monetary compensation may or may not be involved towards the surrogate mother, thereby categorizing them into 2 types: -
- Commercial surrogacy:
It is also called compensated surrogacy. Compensated surrogacy is just what it looks like; add-on to the exposure of all pregnancy-related costs, a surrogate receives a base compensation for carrying the intended parents’ child. This kind of commercial surrogacy can become a complex legal and ethical matter, as some state laws do not allow for compensated surrogacy of any kind. Critics of commercial surrogacy say the process takes advantage of vulnerable women in need of money and exploits the system of human reproduction. After the passing of Surrogacy Regulation Bill 2019, this type of surrogacy has been banned/prohibited in India.
2. Altruistic surrogacy:
It is also called non-compensated surrogacy. In this type of surrogacy, a surrogate does not receive any extra compensation beyond the coverage of pregnancy-related costs. Normally, this kind of surrogacy is completed when intended parents and surrogates know each other from some relation — for example, if they are close friends or family members. Many people are uncomfortable with the idea of having a surrogate carry a child and receive nothing for doing so in case she feels exploited or underappreciated during the process. While an altruistic surrogacy may have less monetary burden on the intended parents , it may also come with challenges for the relationship between the intended parent and surrogate during the gestation procedure.
Why Has Indian Commercial Surrogacy Been Banned?
It is hard to pinpoint exactly one reason why surrogacy in India has been banned for international intended parents, but it is easy to identify some reasons that may have played a role in this decision by legislators,
- Like all international surrogacies in lesser-developed countries, the protections available for intended parents and surrogates are less — and have led to harmful results. When Indian surrogacy first became a booming industry, there were no regulations in place, and unsafe and unethical practices developed in response.
- The women who chose to become surrogates in India during this time were subjected to unethical treatment, poor living conditions and exploitation. To keep up with demand from international intended parents, Indian surrogacy agencies effectively ran “baby factories,” where Indian women were forced to live until they gave birth to the intended parents’ babies — with usually no assistance for the family they had left behind while pregnant.
- In addition, the surrogates in India only received a fraction of the expenses that the intended parents paid to the surrogacy agency. With agencies charging more than double the amount compensated to the surrogates, they were commonly exploited in commercial surrogacy.
- Their deprivation and lack of education of rights drew them back into the surrogacy procedure over and over again for this financial benefit, and because of this, their health declined as they successfully became “baby-making machines”. They also did not obtain the kind of helpful services they needed for themselves during this time.
In respect to these reports evolving over time, the Indian Government attempted to take steps to make the process safer, healthy, and less commercial for all concerned. Unfortunately, that resulted in a restrictive process that has made the process more difficult or completely impossible, rather than safer.[1]
The Surrogacy (Regulation) Bill, 2019
The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare, Dr. Harsh Vardhan in Lok Sabha on July 15, 2019. The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
Following are some important points which came up after the bill was passed:-
Regulation of surrogacy:
The Bill prohibits commercial surrogacy but did allowed altruistic surrogacy. Altruistic surrogacy involves no monetary compensation while the commercial surrogacy involves monetary compensation.
Objectives for which surrogacy is permitted:
Surrogacy is permitted only when it is:
- (i) for intending couples who is suffering from proven infertility;
- (ii) altruistic purposes only.
- (iii) not for commercial purposes.
- (iv) not for generating children for sale, prostitution, or other forms of exploitation.
- (v) for any other condition or disease specified through regulations.
Eligibility criteria for intending couple:
The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate medical authority.
A certificate of essentiality will be issued only if the following conditions are fulfilled:
- (i) A certificate of proven infertility of one or both members of the intending couple from a District Medical Board.
- (ii) An order of parentage and custody of the surrogate child passed by a Magistrate’s court.
- (iii) insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
The certificate of eligibility to the intending couple is issued upon fulfillment of the following conditions:
- (i) The couple must be Indian citizens and at least married for five years.
- (ii) Must be between 23 to 50 years old (wife) and 26 to 55 years old (husband).
- (iii) Must not have any surviving child (biological, adopted or surrogate).
- (iv) Other conditions which may be specified by regulations.
Eligibility criteria for surrogate mother:
To obtain a certificate of eligibility from the appropriate authority, the surrogate mother must be: -
- (i) a close relative of the intending couple.
- (ii) a married woman having a child of her own.
- (iii) 25 to 35 years old.
- (iv) a surrogate only once in her lifetime.
- (v) possess a certificate of medical and psychological fitness for surrogacy.
Who would be an Appropriate authority:
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:-
- (i) awarding, halting, or cancelling registration of surrogacy clinics.
- (ii) imposing standards for surrogacy clinics.
- (iii) investigating and acting against breach of the provisions of the Bill.
- (iv) suggesting modifications to the rules and regulations.
Offences and penalties under the new bill:
The penalty for the following offences is imprisonment up to 10 years and a fine up to 10 lakh rupees. The Bill specifies a range of offences and penalties for other violations of the provisions of the Bill.
- (i) Commencing or advertising commercial surrogacy.
- (ii) Exploiting or ill using the surrogate mother.
- (iii) Abandoning, manipulating, or disowning a surrogate child.
- (iv) Selling or importing human embryo or gametes for surrogacy.
Hence, these are the certain provisions mentioned in the bill which is now in force and has commenced with full sanction in order to stop the exploitation of surrogacy market and comes up as a true help for the ones who are genuinely in need for such a medical system for their biological needs. Eventually, everything in this world which comes into place in order to take humanity to a better/higher pedestal comes up with some or the other sorts of challenges which comes into picture when the amount of corruption and greed in the human beings grow. The only way to stop is to make proper laws, which has no loopholes for the perpetrators to embark with their illegal acts.
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FAQs:
Q. What are the chances of success with surrogacy?
Ans. Surrogacy success rates are influenced by the IVF clinic one engages with, the health and viability of the embryo one uses and the health and fertility history of the surrogate. The fertility clinic helps one determine the best chances of achieving a successful pregnancy in one’s specific circumstances. In addition, most surrogacy professionals will perform multiple embryo transfers until a healthy pregnancy is achieved, making the overall surrogacy success rates extremely high.