Surrogacy

 

Author: Sulakshana Chanda 

College - Chandigarh University 

“Being a parent wasn't just bearing a child. It was about bearing witness to its life”. 

JODI PICOULT 

                               

 INTRODUCTION :

Parenthood is a dream shared by every parent couple, but it is not always realised owing to unforeseen circumstances. Any uterine health condition, male infertility, and so on. Surrogacy is always an option for these parents. Surrogacy is an agreement in which a surrogate mother, with her consent, carries the unborn child of the intending parents and subsequently gives the child's custody to the intending parents according to the terms of the agreement. This is a mechanism by which any parent can grant their child's requests.

Commissioning person(s) may include: Depending on the law in the state where the surrogacy agreement takes place, commissioning person(s) may include:

Infertility; hysterectomy; disease (such as cancer); absent or poorly functioning ovaries or uterus; recurrent pregnancy loss; repeated failures using other forms of assisted reproduction; age); heterosexual women who do not wish to carry a child by choice, or who are unable to carry a child due to a variety of factors (for example, infertility; hysterectomy; disease (such as cancer); absent or poorly functioning ovaries or uterus;

single women or lesbian couples who are unable or unwilling to become pregnant by artificial insemination or other types of assisted reproduction, or who do not want to bear a pregnancy;

Men who are single or in a same-sex relationship.

 MEANING :

Surrogacy is a type of third-party reproductive practise or an agreement between the intended parents and the surrogate mother for the latter to conceive, gestate, and give birth to a child. After the child is delivered, it is decided that the surrogate mother will legally and physically hand up the child to the intended parents, with no parental rights or obligations preserved1. Surrogacy gets its name from the Latin phrase "Surrogatus," which essentially translates to "a substitute," or someone designated to act in the place of someone else. Surrogacy is defined as "the procedure of carrying and delivering a kid for another person" according to Black's Law Dictionary. 

     Essentially, there are two types of surrogacy practices:  Traditional and Gestational

 In traditional surrogacy, Either the intending father or a sperm donor artificially inseminates the surrogate mother. The biological mother of the kid is the surrogate mother since she uses her own eggs. As a result, the surrogate mother and the intended father or sperm donor have a genetic relationship with the child. The surrogate mother, on the other hand, must relinquish her parental rights and deliver the kid over to the intended parents.

 In gestational surrogacy, the surrogate mother (also known as a gestational carrier) has no biological ties to the child. Rather, the embryo is generated in a lab using the intended mother's (or donor's) egg and the intended father's sperm (VF). It is then implanted into the uterus of the surrogate mother at the clinic.

Surrogacy is divided into two forms according on the amount paid to the surrogate i.e.

Commercial surrogacy - It is defined as when the surrogate mother is compensated beyond medical expenditures and other permitted expenses, as well as insurance coverage for bearing the child for the intending parents. It also involves the sale and purchase of human embryos for the purpose of surrogacy.

Altruistic surrogacy - It occurs when the surrogate mother receives no compensation other than medical expenditures and other prescribed expenses, as well as insurance coverage for bearing the child for the intending parents. It is usually carried out by a close family member or a friend.

 CASE LAWS

Jus ks Puttaswamy & Anr vs Union of India 

                    To obtain a ‘certificate of infertility’ from the District Medical Board,        which is a ‘violation of right to privacy’, has been recognized as a fundamental    right to be protected. 

 Baby Manji Yamada v. Union of India

 Where a baby was born through surrogacy to a Japanese couple. The husband had to return to Japan as his visa was cancelled followed by divorce between the couple. Although the grandmother of the baby was given custody after the mother refused to accept it, the newborn was unable to leave India for 3 months after the birth because she had neither Indian nor Japanese citizenship. The Supreme Court of India later allowed the grandmother to leave with the baby.

     LEGAL INSIGHTS ( EVOLUTION OF SURROGACY LAWS )

After India legalised commercial surrogacy in 2002, various commercial firms and firms claiming specialisation in surrogacy legislation and counselling and supporting foreign tourists who came in search of an Indian mother renting her womb for the blessing of a child grew to prominence. Such arrangements are exploitative in nature since they not only encourage baby selling but also degrade the dignity of women's reproductive capacities and the natural value of children by altering them. This created the path for the formation of several foreign companies in India, supporting people from all over the world in finding surrogate Indian mothers and assisting foreigners with surrogacy paperwork.

By establishing appropriate legislation, the Law Commission of India's 228th report recommends barring commercial surrogacy and legalising ethical altruistic surrogacy. One of the main causes for the surge in surrogacy services in India is poverty, which forces impoverished Indian women to rent their wombs for money or other necessities.

The Indian Council of Medical Research (ICMR) published guidelines to govern surrogacy contracts in 2005. The surrogate mother would be entitled to monetary compensation, the value of which would be negotiated by the couple and the surrogate mother, according to the guidelines. The surrogate mother cannot contribute her own egg for surrogacy and must abandon all parental rights to the surrogate kid, according to the criteria.

THE 2016 SURROGACY REGULATION BILL AND ITS KEY FEATURES

JP Nadda, Minister of Health and Family Welfare, proposed the Surrogacy Regulation Bill, 2016 in the Lok Sabha, which intends to outlaw commercial surrogacy in India. It was created to regulate surrogacy in India, as it stipulated all of the qualifications of the parties competent to enter into a surrogacy agreement, as well as the rules and formalities that must be met for surrogacy to take place in India. Because this bill intends to restrict single parents from becoming parents through surrogacy, cases like Karan Johar and Tusshar Kapoor would no longer be witnessed.

        The Salient Features of this bill are as follows -:

Proposal for making commercial surrogacy illegal,

Allows altruistic surrogacy only,

Requires intended parents to be married for five years,

The Intending parents need to have a certificate of their infertility,

Women can be a surrogate mother only once in her lifetime,

The surrogate mother should be a close relative of the intended parents,  

The surrogate mother should be married and have a biological child &

Bans single parents, homosexuals and live-in couples from surrogacy

2016  SURROGACY REGULATION BILL CRITICAL ANALYSIS

The 2016 Surrogacy Bill is not suited for execution since it violates the golden triangle of Fundamental Rights enshrined in the Indian Constitution, and many of the enumerated rights are hampered. These are the problems that have prevented this measure from becoming a law.

Article 14

The qualifications of a surrogate mother include the requirement of the female to be married in order to become a surrogate mother, which clearly violates the rule of equality which is given under Article 14 of the Indian Constitution, as an unmarried female is not given equal rights as that of a married female.

Any couple planning to have a child through surrogacy must marry for at least 5 years, and any couple who does not meet this criterion will not have the same rights as a couple who has been married for 5 years.

Article 19

The freedom to carry out any preferred vocation is stated in Article 19 (1) (d), and any female who wants to be a surrogate mother and chooses surrogacy as a profession will have her rights restricted because this Bill prohibits commercial surrogacy.

Article 21

Certificate of infertility is a clear violation of the Right to privacy guaranteed under Article 21 of the Indian Constitution. It is not clear why the bill requires the parents to show details or information about something which is private.

Right to earn a livelihood is imbibed under Right to live life with dignity, and any female who is not able to earn a livelihood because of the banning of commercial surrogacy is violating Article 21 of the Indian Constitution.

 CONCLUSION

The Surrogacy (Regulation Bill), 2020 proposes surrogacy legislation that is urgently needed. It prohibits commercial surrogacy, which is critical because India has grown into a surrogacy hotspot where surrogate moms have been exploited and surrogate children have been abandoned. The surrogacy clinics did not follow any ethical guidelines. The prohibition of commercial surrogacy is anticipated to put an end to surrogacy clinics' unethical practices. Furthermore, the measure eliminates the near relative clause, which is critical since it may have put pressure on a close relative to become a surrogate mother. Furthermore, the tendency toward nuclear families is growing, making finding a close relative willing to serve as a surrogate mother extremely challenging. 

REFERENCES

https://blog.ipleaders.in/surrogacy-laws-india/

https://www.legalserviceindia.com/legal/article-782-surrogacy-in-india.html

https://www.mondaq.com/india/constitutional-administrative-law/1126150/surrogacy-regulations-in-india