This Article is written by Aparna Venkataraman, student of Tamil Nadu National Law University
Surrogacy is defined as “the practice by which a woman becomes pregnant and gives birth in order to give it to someone who cannot have children.” Surrogacy is one of the types of ART, which stands for Assisted Reproductive Technologies, that is, the technologies that allow for people to have child/children through artificial/scientific methods. ART consists of various techniques, some of which are IVF, PGD, OI, GIFT and of course, surrogacy.
Surrogacy has been found to be in use since ancient times. It was found as early as the Babylonian Code. Its evidence has been found in the Hindu scriptures as well. In the Bhagvata Purana, it is believed that Lord Krishna was born through surrogacy in one of the interpretations. This interpretation claims that when Krishna was about to be born, the Gods interfered, for Kamsa had killed the other six children of t and transferred the foetus of Krishna to the womb of Rohini, Vasudev’s another wife. Since the ancient times, the tribes have used surrogacy to ensure that families, especially that of the head chief is furthered.
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There are two types of surrogacy, medically and two types of surrogacy legally. Medically, the two types are traditional and gestational. The first one implies that the man of the relationship impregnates the woman, that is, the surrogate mother for the birth of the child. The other one, is modern in the sense that the egg and the sperm are fused using scientific methods and the foetus is later transferred to the womb of the surrogate mother. Legally the types of surrogacy are altruistic and commercial. Altruistic surrogacy is where the close relative of the couple agrees to be the surrogate mother of the child, and no money is paid for the same, except for the medical expenses and insurance. Commercial surrogacy is where the surrogate mother is compensated for the same, including all the medical expenses and the insurance.
Surrogacy is an important topic in India and has to be discussed especially because of the fact that commercial surrogacy is worth Rs. 25,000 crores. Moreover, the current manner in which the surrogacy business functions is completely unregulated and is the cause of huge exploitation. The surrogate mother are almost always women who are married, with children of their own, and either below the poverty line ow are toeing the poverty line. Moreover, the people who inform these surrogate mothers of the option of surrogacy are intermediaries, who give a small amount of the money they make to the surrogate mothers. These parents who make use of the Indian surrogate mothers are foreigners, more often than not. All these factors make surrogacy an important aspect, which has to be regulated.
The Lok Sabha has passed a bill regarding the same, called the Surrogacy Regulation Bill, 2016. This Bill prohibits commercial surrogacy altogether and has imposed heavy penalties in the form of punishment for a period of not less than 5 years and a fine of Rs. 10 lakhs. It also mandates that the people who can opt for altruistic surrogacy are the couples (called commissioning parents) who have been trying for at least 5 years but have been unsuccessful and hence are opting for this option. The commissioning parents as well as the surrogate mother are to obtain eligibility certificates, from the appropriate authority as appointed by the State Surrogacy Boards (SSBs) and the National Surrogacy Board (NSB), as the case maybe. This Act also instructs that the surrogate mother in no way of form can abort the child, unless the conditions for the fulfilment of the Medical Termination of Pregnancy Act comes to play. The act also mandates that the child be accepted by the parents as the child is, regardless of the gender of the child or any anomalies that the child may suffer from.
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The problem with this Bill is the fact that it does not allow for any single parent or any member of the LGBTQ+ community to choose this option. Analysing the bill, one can come to the conclusion that the Bill does not even allow for all the infertile couples to opt for the same. This is because of the way the term “infertile” has been defined. Another problem with the Bill is the fact that there is no option for recourse, if the eligibility certificates are not granted to either the commissioning parents or the surrogate mother. Moreover, there is no time limit specified for the certificate to be granted by the appropriate authority. These problems have to be addressed by the Rajya Sabha before the Bill becomes an Act.
