Legal Status of Surrogacy in India

ABSTRACT

This article is based on the ‘Legal status of Surrogacy in India’. Firstly, introducing the topic of the article which means, it is an arrangement between the intended parents who want a baby and the female, also known as a surrogate. After that, the article contains various forms of surrogacy i.e. traditional and gestational surrogacy. After that, it discusses the commercialization of surrogacy techniques in India and the various reasons why commercial surrogacy is banned in India. Thereafter, various regulations related to surrogacy. At the end of the article, the current legalization of surrogacy in India.

INTRODUCTION

The term Surrogacy means the arrangement between the intended parents who want a child and the woman, also known as a surrogate. In recent times, this practice is common, done, and acceptable in the societies of India. The most common reason for selecting the method of surrogacy is a medical threat or medical reason of the intended mother, it means that the intended mother suffers from infertility but still mother wants a baby, in such a situation the method of Surrogacy is chosen by the intended parents. In the said situation, the embryo is created using the intended parent’s sperm and the surrogate woman’s eggs. In India, surrogacy is legal but not completely.

FORMS OF SURROGACY

In India, there are two forms of surrogacy:

1) Traditional method

2) Gestational method

In the traditional method of surrogacy, the eggs of the intended mother are not required, surrogate mother uses her eggs. In this form of surrogacy sperm of the intended father is inserted inside the uterus of a surrogate mother. This method makes the process of surrogacy simple and the intended mother does not require to undergo any process. The traditional surrogacy is banned in India. On the other hand, in the gestational method of surrogacy, the eggs of the intended mother and the sperm of the father are used to create an embryo through the process of IVF (In Vitro Fertilization). Most intended parent’s preferred gestational surrogacy because it is not biologically related to the child, it means that there is no emotional attachment i.e. the surrogate is not the biological mother of the baby. It is also noted that gestational surrogacy is costlier than traditional surrogacy because in gestational surrogacy both women go under fertility treatment. Only gestational surrogacy is legal in India because it is altruistic.

Surrogacy is not for a single male, unmarried female, live-in couple, or a married couple who can conceive a child but wants to avoid pregnancy. In India or outside India no one can transfer their gametes, zygotes, and embryos for personal gain, monetary gain, or commercial use. This activity is only permissible under the authority of the ART Act (Assisted Reproductive Technology Act, 2021). The artificial method of having a child such as surrogacy is helpful for those people who cannot able to have a baby due to some medical problems.

BAN ON COMMERCIAL SURROGACY

The commercialization of surrogacy is banned in India because it may lead to the exploitation of the surrogate and the child. Mainly it arises from economically backward families. Before 2015, India was known as the ‘baby factory’ because it is a popular destination for surrogacy. Due to globalization, Indian surrogates get foreign intended parents easily increasing the reproductive services beyond the territory of India. As a result, the wealthy can easily get reproductive services or surrogates with greater choice of decisions than the poor. The discrimination between the rich and poor is done because surrogates also need a lot of money.

According to the 228^th report of the Law Commission of India, commercial surrogacy is banned due to the following reasons:

a) The surrogate and the child both were treated as a commodity and sold at low prices.

b) Payment for the child.

c) Payment for reproductive labor.

d) Gender exploitation.

e) Human trafficking of the child as well as the surrogate mother.

f) Due to various health risks or issues in the baby as well as the surrogate mother.

g) The main cause of the ban on commercial surrogacy is the degradation of the morality of women.

The Surrogacy Regulation Bill, 2019 was passed to allow only altruistic surrogacy and prohibition commercial surrogacy which prevents the exploitation of surrogate mothers as well as the child. The bill contains many conditions for the intended parents who seek surrogacy such as any person inside or outside the territory of India should be in the age group of 23-50 for females and 26-55 for males to fulfill the requisites of the bill.

LAW RELATED TO SURROGACY

In India, there are some regulations which are related to the surrogacy are following:

1.        The Indian Council of Medical Research Guidelines, 2005:

The Indian Council of Medical Research (ICMR) issued the guidelines to regulate the arrangement between the intended parents and the surrogate mother. These guidelines declare that the compensation will be given to the surrogate mother which will be decided by the intended parents and the surrogate mother while making the arrangement and also outline how the Assisted Reproductive Technology (ART) operations should be employed by the fertility clinics that provide surrogacy treatments in India.

2.        The Surrogacy Regulation Bill, 2019:

According to the Surrogacy Regulation Bill, 2019, there are some offenses which are mentioned under the bill such as commercialization of surrogacy, exploitation of surrogate mother and child, and selling and trafficking of embryos and gametes. if any person commits the said above offense shall be imprisoned for up to 10 years and 10 lakh rupees fine. Under the bill, a certificate will be issued to the intended parents as proof by the District Medical Board, certificate will be named as a ‘certificate of essentiality’. There are a few conditions that need to be fulfilled by the intended couple to get the ‘certificate of essentiality’ are mentioned below:

a) The intended couple needs to prove that both the member wants the baby and are unable to conceive the baby.

b) The order should be passed by the magistrate court regarding the custody of the child.

c) Intended parents should be given 16 months of insurance to the surrogate mother after the delivery of the baby.

 3.         The Assisted Reproductive Technology Act, 2021:

The ART act states a technique that is used to manipulate the pregnancy results outside the human body. In this technique, both eggs and sperm are manipulated for the result of a positive pregnancy and transferring the embryo inside the female uterus. The Assisted Reproductive Technology Act allows all married couples, live-in partners, single women, and foreign clients to use the techniques to have a baby.

In India, the National Registry of Banks and Clinics controls the database information of all the clinics and banks.

Nowadays, the surrogacy laws have been updated, and issued new guidelines with a focus on the qualification and the surgery procedure. These guidelines are issued to enhance the safety of the intended parents and the surrogate mother. In the end, these guidelines prohibit unethical practices in the procedure of surrogacy and prohibit the human trafficking of the child.