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“The parents construct the child biologically; while the child constructs the parents socially”. When the parents are unable to construct the child biologically, Herein surrogacy comes as a supreme savior. The Surrogacy bill defines Surrogacy as a practice where a woman gives birth to a child for an intending couple to hand over the child after birth to the intending couple. The word ‘Surrogate’ is rooted in the Latin word ‘surrogatus’ which means to substitute. Surrogacy is of two types: Traditional Surrogacy- where a surrogate woman’s egg gets artificially inseminated with the father’s sperm and Gestational Surrogacy – where eggs are gathered from the mother, fertilize with the sperm of the father and embryo is then placed into the uterus of gestational surrogate.it is also called as in vitro fertilization.
Surrogate mothers are not a new solution to the old problem of not being able to produce offspring. The practice of Niyog Pratha, in which a woman who was childless because her husband was impotent was allowed to conceive through her brother in law was evident in surrogate fatherhood. In Mahabharata, Gandhari, the wife of Dhritarashtra, conceived but the pregnancy went on for nearly two years, after which she delivered a mass. Bhagavan Vyas found that there were 101 cells in the mass which was put in a nutrient medium, out of which 100 developed into male children ( Kauravas) and one into a female called Dusheela. In the Bible, the old testament states Hagar, the maid of Sarah bears the child for her infertile mistress with the help of Sarah’s husband Abraham.
SURROGACY- A BOON
Nature has bestowed the beautiful capacity to procreate a life within a woman and every woman cherishes the experience of motherhood but unfortunately, some women due to certain physiological conditions could not give birth to their offsprings .for such mothers, surrogacy is a boon to have their genetic child. In the process the barren gets a baby, the broke gets a bonus. It provides reproductive liberty to a person. It is a ray of hope for couples who are incompatible to bear pregnancy due to medical complications, recurrent abortions, and failure of IVF procedures.
Surrogacy is a complex process involving issues such as the frustration of cross border childless couples to cope up with various barriers and fight a long legal battle for their child; problems in citizenship, nationality, rights of the child, etc as in ‘ Baby M’ Case and in Jan Balaz case. There are certain occasions where children are denied nationality of the country of intended parents as in Israeli gay couple’s case where the gay couple Yonatham and Omer could not in Israel adopt or have a surrogate mother. They came to Mumbai where Yonathan donated his sperm and selected a surrogate mother. Baby Evyatar was born. The gay couple took son Evyatar to Israel but the Israeli government had required them to do a DNA test to prove paternity before the baby’s passport and other documents were prepared. There are several incidences where the child was given to the couple after surrogacy was disowned by intended parents due to medical problems. Poor, illiterate women are often persuaded in such deals by their spouses or middlemen for earning easy money. These women have no right to decide regarding their bodies and life. Further, no provision of psychological screening or legal counseling as mandatory in the U.S.A. In case of an unfavorable outcome of pregnancy, they are unlikely to be paid and there is no provision of insurance or post-pregnancy medical and psychiatric support for them.
A rich career woman who does not want to take the trouble of carrying their pregnancy is resorting to hiring surrogate mothers. It is becoming more of a commercial racket. Surrogate mothers are unaware of the existing legal and medical procedures and risks involved in the process. Surrogates are at the lowest rung of the surrogacy chain and remain the most vulnerable. She depends on the surrounding clinics or agents for the deal and not able to negotiate her terms of the contract. Repeated pregnancies and no follow up care can impact the health of the women. There is a social stigma attached to surrogacy. It leads to commoditization of children and increases other crimes such as human trafficking.
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INDIA – A REPRODUCTIVE TOURISM HUB
Indian surrogacy business is currently valued at more than $400 million, with more than 3000 fertility clinics nationwide, leading to the country even being dubbed as a baby factory. The usual fee given to surrogate mothers is around $25,000 to $30,000 in India which is around 1/3rd of that in developed countries like the U.S.A. This made India a favorable destination for foreign couples which look for cost-effective treatment for infertility. The world’s second and India’s first IVF baby Kanu Priya alias Durga was born in Kolkatta on Oct 3, 1978, about 2 months after the world’s first IVF boy, Louis joy brown born in Great Britain on July 25, 1978. India became the first country to legalize commercial surrogacy in 2002.
In many countries like Britain, America, Australia, altruistic surrogacy is legal while in countries like France, Germany, Italy, Spain prohibit all forms of surrogacy. In the U.S.A, surrogacy laws vary from state to state. Surrogacy friendly states allow both commercial and altruistic surrogacy. eg California. NewYork does not allow commercial surrogacy and Michigan forbids absolutely all surrogacy.
EVOLUTION OF SURROGACY LAWS IN INDIA
The journey of surrogacy laws in India remained progressive i.e. from unregulated to legalized commercial to altruistic. Developments in surrogacy laws include ICMR guidelines on ethical and legal aspects of ART and surrogacy,2007 provides for surrogacy contracts, financial support to surrogates, right to privacy of donor, etc. Assisted Reproductive Technologies ( Regulation) Bill, 2010 provides for the constitution of authorities to register and regulate surrogacy, grievance redressal cell, rights, and duties of a surrogate mother, etc. Home Ministry’s guidelines for regulating the practice of commercial surrogacy, 2012- earlier foreigners came to India for surrogacy on tourist visas, now such foreigners are allowed only on a medical visa, treatment to done in recognized ICMR institution, have to take exit permission from foreigner regional registration offices. The Surrogacy Regulation Bill, 2016 proposes to regulate surrogacy by establishing surrogacy boards at the central and state level. The bill bans commercial surrogacy and promotes altruistic surrogacy. Further, it allows women to be surrogate only once in a lifetime. However, the bill lapsed due to the adjournment of the house. Surrogacy Regulation Bill, 2019 promotes altruistic surrogacy to the Indian heterosexual married couple who are married to at least 5 years and within the age group of 23-50 years for women and 26-55 for men, where surrogate to be a ‘close relative’. Surrogacy Regulation Bill, 2020 allows any ‘willing woman’ to be a surrogate mother and insurance cover for the surrogate increased to 36 months from 16 months. Further, ethical surrogacy is allowed only for Indian married couples, Indian origin married couples, and Indian single women ( only widow or divorcee between the age of 35 and 45 years).
COMMERCIAL SURROGACY V. ALTRUISTIC SURROGACY
Commercial surrogacy also called ‘ Rent for Womb’ surrogacy is when a surrogate mother is given monetary compensation other than medical and insurance. It helped one to fulfill one’s dream to have a genetic child. On the other hand, it supported surrogate financially. It provides reproductive liberty to a person. On the other side, it is not acceptable by society as it devalues the traditional concept of motherhood. It reduces a woman to a ‘ breeder machine’ and turns the normal biological function of a woman’s body into a commercial contract. It degrades a pregnancy to a service and a baby to a product. Altruistic surrogacy is defined as “unselfish regard or devotion to the welfare of others”. It is surrogacy where no monetary compensation is given to surrogate except medical and insurance expenses. The woman carries the child as an act of generosity.
Childlessness is a very real and tremendous problem for infertile couples all over the world. Blanket bans lead to system failures. Criminalizing practice does not lead to the eradication of the activity. Instead, it moves such practices underground into unregulated, and far more dangerous, terrain. We legislate first and think afterward, complexity is heaped upon the complexity and the confusion becomes worse confounded, the avalanche of amendments only result in more litigation. A Specialised court called surrogacy court should be created to exclusively deal with surrogacy related adjudication cases. Sex-selective surrogacy to be prohibited. Law alone cannot transform society, the mindset of people needs to be changed. The surrogacy should overstep the natural ways of procreation, only those who have been able to get children from it know the value of legitimacy of surrogacy.
 The Surrogacy ( Regulation) bill,2019.
 Baby Manji Yamada v. Union Of India and ANR.SCC 2008 SC 1656.
 Jan Balaz v. Union Of India,A.I.R.,2010 Guj 21.
Author: Anu Verma
Editor: Kanishka Vaish, Senior Editor, LexLife India.