Surrogacy: A Legal Practice

Surrogacy means a practice where a woman gives birth to a child for an intending couple with the intention to hand it over to them after the birth. Not every couple can choose a woman to surrogate, only the one who suffers proven infertility or disease.

Surrogacy comes from a Latin word “Surrogatus” which means a substitute and here surrogated mother is the substitute of intended parents. Surrogacy is believed to be a good deed only if it is not done for the commercial purpose.

There are two types of surrogacy practices:

  • Traditional/ natural/ partial surrogacy:

The surrogates own eggs are fertilized through IUI using sperm from the donor or an intended father in the fertility clinic. In this the intended mother is not connected genetically from the baby.

  • Gestational surrogacy:

It is opposite to the traditional method of surrogacy. Here intended mother is connected genetically from the baby by combining both eggs and sperm of the intended parents and then transfer it to surrogate and then she carries a baby for 9 months in her womb.

Since so many years there were no such strict laws for surrogacy and surrogacy was a kind of taboo in India, but with time, popularity of the same has been increased.

For a long time, foreign couples opted for surrogacy because of its good health and affordable medical system. So the government has put restrictions on the practice with stated aim of regulation.

Conditions to be a surrogated mother:

  • The woman chosen for surrogacy must be a close relative of the intended parents who will take the child after birth.
  • No sex selection can be done when it becomes to surrogacy.
  • Surrogated mother must be a married woman and should have at least one child of her own.
  • The age of surrogated mother must be between 25-35 years.
  • She should have a certificate of physical and mental fitness of surrogacy.
  • It is mandatory for all surrogacy clinic in the country to be registered.
  • Surrogated mother should get tests to make sure they have immunity to measles, rubella, chickenpox and the potential to carry a pregnancy.

Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act 2021 came into effect from 25th January 2022. The act aims to prohibit commercial surrogacy and allows for altruistic surrogacy. Commercial surrogacy was legalized in India back in 2002.

The act has created proposed for the creation of National Assisted Reproductive Technology and Surrogacy Board at the national level, inclusive of functions such as advising the government on the issue related to surrogacy in the country and to look after proper infrastructure of the clinics and hospitals providing facilities of surrogacy. All surrogacy clinics must be registered mandatorily.

This act states that, surrogacy is liable for Indian couple only. No individual can become a surrogate mother for a foreign couple for any monetary aspect. Surrogacy is legal only when the Indian couple is unable to have a baby due to infertility or any disease.

In simple words commercial surrogacy is banned in India because surrogacy is not a business but it is done for a good deed and also surrogated mother faced multiple challenges such as exploitation, unhygienic living condition, and unfair treatment. Past so many years, woman becomes a surrogated mother of a foreign couple and even for Indian couple who is fit to have a baby, just to earn good amount of money. Surrogacy policy in India has varied from encouraging commercial surrogacy to allowing only altruistic surrogacy.

The act sets an age limit for the intended couple where a husband must be 26 and 55 years of age and wife between 23 and 50 years of age. Indian couples who is already having a biological or adopted child is prohibited to undertake surrogacy, but there are some exceptions such as mentally or physically challenged children, or those suffering from life threatening disorder.

In other words let’s understand who is allowed to go for surrogacy to become parents:

  • At least 5 years have been passed of having been married.
  • The couple has to prove the incapability of fertility and what problems are actually being faced by the intended couple by showing a certificate.
  • They have to also undertake that, abandonment of the child born out of the surrogacy will not be done by intending parents.
  • The certificate of eligibility is required by the couples, issued by the authorities as stated under the act.

Now, the question is, is there any violation of right of privacy in showing the certificate of infertility.

It was held in the case Justice K.S. Puttaswami and anr. V. Union of India[1] that there is a violation of the right to privacy in obtaining and showing the certificate of infertility and it is also against the moral and ethical point of view of society to make it compulsory to have a certificate of infertility from the district medical board and this fundamental right has to be protected.

In the other case[2] it was held that Article 21 of the constitution guaranteed the personal liberty under which the right of the women to make a reproductive choice also lies, and along with that it also includes various other rights like women has the right to carry a pregnancy to its full term, to give birth, and these rights form part of women’s right to privacy, dignity and bodily integrity.

The surrogated mother cannot be given any payment or any kind of benefit for holding a baby for 9 months in her womb, except the medical expenses and such other prescribed expenses on the surrogated mother. If there is need of abortion of the surrogated child, the written consent of the surrogated mother is mandatory. The surrogated mother will have an option to say no to surrogacy only before the implantation of the embryo in her womb. She can only have one surrogate birth in her lifetime.

There are some other criticism related to surrogacy law, critics say that this law is a patriarchal law on woman by not giving them any money in exchange of the baby which she kept inside her womb for 9 months and took all the pain, surrogacy law also allow only the close relative to become a surrogated mother which limits the option for parents to choose a surrogated mother for their child as very limited relatives will be ready to become a surrogated mother and there is a possibility that surrogated mother may lead emotional complications not only for intending parents but also for surrogated child as there is great deal of risking the relationship in the course of surrogacy period and post birth, the complete ban of commercialization of surrogacy can lead to secret illegal hiring of surrogate mother that’s why banning of commercial surrogacy is not the complete solution.

The main fears related to surrogated mother are:

  • Exploitation by third party.
  • Lack of fully informed consent.
  • Threats to the mother’s mental and physical health during and after pregnancy.
  • Etc.

Consent is top most priority for surrogacy, but it requires that potential surrogated mother have ability to understand complex legal documents.

Baby Manji Yamada v. Union of India[3]

In this case, a Japanese couple visited India to have a baby through surrogacy, for that the hired an Indian woman as a surrogated mother. Surrogated mother lived in Gujarat where surrogacy was pioneered. But, some days later the Japanese couple had divorced and the father wanted the custody of the child. According to Indian law, single father cannot adopt a girl child.

So, it was held that the custodial right of the girl child should be given to her grandmother. So, in this case it was analyzed that there is a need to have regulated surrogacy law in the country.

Misconceptions regarding surrogated mother:

  • She is not the wife of the father of the child to whom she gives birth.
  • She was not involved in the sexual activity with the father of the child to have a baby. In other words, she is not an asocial woman.
  • She is not the genetic mother of the child.
  • This is not an illegal practice.
  • She is not forced into this. She herself decides to be a surrogated mother.
  • She has no rights over the child that is born.
  • She is not responsible for the child which she gave birth to.
  • Surrogacy is mutually beneficial concept of providing services.

Surrogacy is not an illegal activity, it is totally legal, like medicine is prescribed for treatment of disorder, in the same way surrogacy is also a method of treatment.

During the 37th session of Human Rights Council in March 2018, there is a special focus on surrogacy and sale of children.

  1. Adopt clear and comprehensive legislation that prohibits the sale of children.
  2. Prohibition of commercial surrogacy is mandatory to restrict the sale children born through surrogacy.
  3. In case of altruistic surrogacy, proper regulations should be made.
  4. Ensure that in all the parental responsibility decisions involving a surrogacy arrangement, a court or competent authority makes a post-birth, best interest of the children determination, which should be the paramount consideration.
  5. Proper regulation should be done of all intermediaries involved in surrogacy arrangements.

Human Rights Council focuses on protection from sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material.

Punishment

Commercial surrogacy among other offences, can lead to imprisonment for a term of at least 10 years and a fine extending to Rs. 10 to 20 lakhs. This offence is not a small offence and punishment of the same is also not easy.

Offences which are punishable under same are:

  • Abandoning or exploiting children born through assisted reproductive technology.
  • Sale, purchase, or trade of embryos.
  • Exploiting the couple or donor in any form and transfer of an embryo into a male or an animal.
  • Undertaking and advertising commercial surrogacy.

Surrogacy was initiated with a good motive and the act has well tried to deal with the issues in a positive direction, but in reality there are many issues which remained undealt, which needs to be sorted out.

There is a strong need to modify and make the adoption procedure simple for all, therefore various acts and amendments have been made to resolve the issue related to surrogacy and try to increase the efficiency and decrease the rate of surrogacy. Law should be framed in such a way to protect the surrogated child and mother from exploitation by protecting their rights.


[1] (2017) 10 SCC 1

[2] SUCHITA SRIVASTAVA V. CHANDIGARH ADMINISTRATION (2009) 14 SCR 989, (2009) 9 SCC 1

[3] (2008) 13 SCC 518


Author: Tanya Jain


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