“The procedure that started as a necessity, has become a hobby of sorts. It has become a fashion statement these days.” – Sushma Swaraj (Former Minister of External Affairs of India)
Surrogacy became a boon for couples who couldn’t have children of their own after India legalized commercial surrogacy in the year 2002. Surrogacy came under the medical tourism industry. Soon it flourished into $2 billion industry as there were no laws relating to surrogacy in India, there were only certain guidelines provided by the Indian Council of Medical Research.
This assignment briefly explains what surrogacy is and its kinds. Surrogacy laws of other countries are compared with that of India. Facts about the Indian surrogacy market are stated. The hospital where the most number of surrogate babies were born in India is talked about in detail. Complications that have aroused in the past have been explained with the help of two famous cases. Problems that surrogate mothers face and the need for the elimination of middle men is emphasized. The Surrogacy (Regulation) Bill, 2016 which has been approved by the cabinet and the kind of backlash this bill has received has been studied. Suggestions for improving this Bill have been given along with a conclusion.
INTRODUCTION
As we see the news channels we notice that a lot of people from the film fraternity have opted for surrogacy, the latest one being Ekta Kapoor. She became a single mother through surrogacy. It is great to see a single woman becoming a mother for the first time with the help of a surrogate; however, there are other film stars like Shahrukh Khan who had a son through a surrogate despite having two children. It is important to understand the need for surrogacy laws.
In order to understand its need, we first need to know what surrogacy is.
Surrogacy is a process where a couple who cannot have children of their own due to medical reasons get into a legal contract with a woman who agrees to bear and deliver the child.
As Surrogacy is a contract, there are parties involved in this contract. There is a contract between the commissioned or intended parents and the surrogate. There are countries where the surrogate mother is considered to be the legal mother of the child and later the intended parents adopt that child. However in India, the intended parents are considered to be the legal parents of the child and not the surrogate mother. The work of the surrogate is to only deliver the child.
There are four parties involved in a surrogacy-
- Surrogate mother
- Commissioned or intended father
- Commissioned or intended mother
- Clinic or the Hospital through which the surrogacy process is carried out.
There different types of surrogacy-
1] On the basis of Embryos
a) Traditional Surrogacy-
In this method, the intended father’s sperm is injected into the surrogate mother either naturally or artificially.[] The egg used is of the surrogate mother. This makes the surrogate mother the biological mother of the child.
b) In this method, the intended father’s sperm and the intended mother’s egg is injected into the surrogate mother artificially. Genetically the child belongs to the intended mother and intended father. The surrogate mother only gives birth to the child and is not genetically connected to the child.
2] On the basis of selection of the surrogate mother-
a) Commercial Surrogacy-
The surrogate mother gets paid to provide her service. She is not related to the couple who is opting for surrogacy.
b) Altruistic Surrogacy-
The surrogate mother in this case is not paid for bearing the baby and only her medical expenses are paid for. This mother is usually a close relative of the couple opting for surrogacy.
COMPARATIVE STUDY OF SURROGACY LAWS IN DIFFERENT COUNTRIES AND INDIA
CANADA
Canada prohibits commercial surrogacy, however altruistic surrogacy is allowed. Canada has enacted the Assisted Human Reproduction Act in 2004 which covers surrogacy. They have set up and agency to regulate surrogacy in the country,
PAKISTAN
There is a prohibition of surrogacy in Pakistan
USA
There are different laws in different states of USA regarding surrogacy. California permits commercial surrogacy. Michigan does not permit any kind of surrogacy. New York does not permit commercial surrogacy but Altruistic surrogacy is permitted.
CHINA
China does not permit surrogacy at all. This has led to an underground surrogacy market.
ISRAEL
Gestational form of surrogacy is legalized. Only couples who are infertile can opt for surrogacy in this country. The surrogate mother should be single, divorced or widowed. There a lot of restrictions regarding surrogacy which led to Israeli couples who wanted to have a child throw surrogacy look for a surrogate mother out of the country. Their preferred destination to find a surrogate mother is India.
INDIA
India had legalized commercial surrogacy in 2002. There were no surrogacy laws in the country and it has since become an unregulated industry for surrogacy. In the year 2016, A Surrogacy (Regulation) Bill has been approved by the cabinet which bans commercial surrogacy in the country and permits Altruistic Surrogacy.
SOME FACTS ABOUT THE INDIAN SURROGACY MARKET
- According to UN, Indian surrogacy market is estimated at more than $400 million per year
- According to CII, Surrogacy Industry of India is estimated to be a $2 Billion Industry
- India is famous in the world for it’s Surrogacy Industry and was also called a “ BABY FACTORY”
- Akanksha Clinic of Infertility in Anand, Gujarat has become a hub for surrogacy. Thus, Gujarat is known as the Surrogacy Capital
- Among couples opting for surrogacy more than 50% are foreigners
- According to a 2012 study , more 80% of the couples were foreigners who opted for surrogacy that year.
- A woman could become a surrogate more than once
- The amount spend by foreigners on surrogacy in India is approximately $ 30,000 out of which the amount received by the surrogate mother is $ 8000 for a child and $ 10,000 for twins
- There are over 3000 surrogacy clinics in India
AKANKSHA INFERTILITY CLINIC
This infertility clinic is run by Dr. Nayna Patel in Anand, Gujarat. Her clinic is the most famous clinic for surrogacy and has attracted the attention of various childless couples from India and abroad. In 2015, the 1000th baby was born in her clinic through surrogacy.
Her work has been criticized by many all over the country. But she believes she is doing the right thing. Her clinic has a home care where all the surrogate mothers stay under one roof. The surrogate mothers are generally not allowed to go out of the house for safety purpose. They are provided with 4 healthy meals everyday and doctors come for their daily checkup. She has expressed her dismay regarding the ban on commercial surrogacy in India. She believes that the surrogate mothers voluntarily come forward to bear the child. She appears to be ignorant about the fact that had the women not been from the lower strata of the society, they would not have come forward to become surrogates.
COMPLICATIONS IN SURROGACY WHEN THERE ARE NO LAWS
India did not have any laws which regulated the surrogacy industry. There were no laws regarding the protection of the surrogate mother and the protection of the child born out of surrogacy.
We will understand this in detail by taking the help of case laws
BABY MANJHI YAMADA VS UNION OF INDIA & ANR
A Japanese couple came to India to have a baby through surrogacy. Their names were Ikufumi Yamada (husband) and Yuki Yamada (wife). They had contacted Akanksha Clinic in Anand Gujarat. Dr. Nayna Patel went ahead with the procedure. Ikufumi Yamada was the intended father and his sperms along with the egg of an unknown Indian woman were injected into Pritiben Mehta, the surrogate mother. During the duration of the pregnancy the couple got a divorce. Yuki Yamada the intended mother of the baby refused to accept the baby as Baby Manjhi was not genetically related to her. Ikufumi Yamada wanted to take the baby with him however he wasn’t able to do so as a Surrogate baby is not recognized in Japan according to its laws. He couldn’t adopt Baby Manjhi as the Indian laws did not permit a single man to adopt a child. The surrogate mother was not ready to accept the child because for her it was a contract. Baby Manjhi had become stateless. This not only gave rise to questions regarding the insufficient laws around surrogacy but also gave rise to the question whether commercial surrogacy is right. The petition to claim Baby Manjhi was filed under Article 32 of the constitution by Emiko Yamada, who was her grandmother.
She had to fight a prolonged legal battle in order to take Manjhi with her. After a prolonged battle she took Baby Manjhi to Japan.
OTHER CASES
Having seen the above case we understand the importance of having proper laws related to surrogacy. However this is not the only case wherein surrogacy had gone wrong.
In one of the cases, An Australian couple came to India to have a baby through surrogacy. They ended up having twins, a girl and a boy. The couple already had a child before surrogacy. It was a boy. The couple took only one child with them to Australia and left the other baby in India. They took the baby girl with them and said that they wanted a girl to “complete” their family. The baby boy was left by them in India saying that they had given the baby boy to a relative as they were having troubles to have a child. Later it was found out that the baby was missing. This case is famously called the Baby Dev case. There are no records of the couple giving Baby Dev away to another couple.
Another case wherein a couple from another country, had twins and one out of the twins was suffering from downs syndrome. This was the reason which led them to abandon the baby.
This was the result of surrogacy without having any laws in India. These were some of the cases which led the Indian Government to make Surrogacy Laws in the country. The Supreme Court of India had already pointed out the importance and the dire need for having Surrogacy laws in the country.
THE SURROGACY (REGULATION) BILL, 2016
Seeing the conditions prevailing in the surrogacy industry and the cases which have come up in the past with respect to surrogacy has made the government realize the need of surrogacy laws in the country.
The Surrogacy (Regulation) Bill, 2016 was approved by the Union Cabinet on 24th August 2016.
Following are the Features of the draft bill which was approved by the union cabinet.
- Preventing exploitation of Surrogate mothers
- It completely bans commercial surrogacy in the country.
- The option of Altruistic Surrogacy is available
Following are the ones who can have a child through Surrogacy-
- An Indian Married couple who has been married for a period of minimum 5 years and is infertile can have a baby through surrogacy
- The surrogate must be a close relative of the couple.
- The option of only Altruistic surrogacy is open for the couple
- To be commissioning parents, the woman must be between 23 years to 50 years and the man must be between 26 years to 55 years
- The surrogate mother should be a married closed relative of the couple and must be between 25 years to 35 years.
- Can be a surrogate only once.
Who cannot have a child through Surrogacy in India-
- Foreigners
- NRI’s
- PIO’s
- Homosexual couples
- People in a live in relationship
- Single individuals
- Couples who already have biological children or have adopted children
- One of the aims of the bill is to promote adoption
- Insurance policy will provided to the surrogate mother
- Parental certificate must be issued by the magistrate so that nobody can leave the child in case of deformities, gender etc.
- A regulatory committee will be formed in every state and in the country. This regulatory body will register all the surrogate mothers.
- If any person found indulging in commercial surrogacy will have to pay a fine of 10 lakh Rupees and an imprisonment of 10 years.
PROS AND CONS OF THE BILL
A) Pros
1) Banning commercial surrogacy for foreign couples will reduce the renting of wombs in our country as more than 50% of the couples are foreigners who opt for surrogacy in our country.
2) Initially the number of times that a woman could become a surrogate was not mentioned. With this bill only a married woman who is the close relative of the couple can become a surrogate once.
3) The rights of the children born out of surrogacy will be protected.
4) Insurance policy will protect the interest of the surrogate
5) Exploitation of surrogates will be controlled
6) Forming a regulatory body will help in keeping a record of the surrogate mother
B) Cons
1) Complete ban on Commercial surrogacy will lead to exploitation of women who are close relatives of the couple
2) Waiting for 5 years to have a child through surrogacy is not logical
3) Keeping Homosexuals, single individuals from becoming parents of a surrogate child is unfair. If the government can allow single individuals to adopt a child why are they deprived of having a child through surrogacy?
4) Surrogacy leads to sex determination and hence discrimination on the basis of sex as IVF technology is for it.
5) The government in a way is taking away people’s fundamental right to chose from them. They are trying to impose the option of adoption and altruistic surrogacy.
6) Couples in live in relationship are not allowed to opt for surrogacy, so in a way, this bill is forcing marriage on these couples. It is the decision of an individual whether to get married or not.
7) The term ‘close relative’ is not explained clearly which leads to ambiguity.
SUGGESTIONS
The process of surrogacy is an expensive one and the cost may go up to 15 to 20 lakhs. Instead of banning commercial surrogacy completely, there must be a ban on commercial surrogacy for foreign couples as India had become a hub for surrogacy in the world. This will help as most of the people opting for surrogacy in India were foreigners. The percentage of infertility in the country is not much which leaves only a few people whose last resort is surrogacy; out of such couples not everyone can afford 20 lakhs for surrogacy. So approving commercial surrogacy within India must not be a problem. In commercial surrogacy, a woman must be allowed to become a surrogate only once. A complete ban of commercial surrogacy will not only open an underground black market for surrogacy like China but it will also not protect the rights of the surrogate mother and the child born out of this. Our country is not a modern country and has deep cultural and traditional values conditioned in it. Altruistic surrogacy will make the conditions of the woman in worse. They maybe forced to bear the child and even if a woman voluntarily agrees to bear the child within her family, the kind of effect the child will have during his growing up years will be too much for him to handle. Seeing two mothers in the same house will be difficult for any child. There must be a regulatory body who should find surrogates for the couple or the individual so that middle men can be eliminated. There should be commercial surrogacy only for people living in India and it must be a highly regulated body. The bill which has been approved by the cabinet is a Regressive bill and there must be changes in it. Instead of these private clinics, the government should deal with surrogacy. Every woman that is becoming a surrogate must register itself with the government, this will ensure elimination of middle men. The government can tie up with private hospitals in order to take care of these surrogate mothers during their preganancy providing them nutritious food and also looking after their health.
CONCLUSION
The topic of Surrogacy is not at all an easy one. It is very complex. There are conflicting views on the subject. For some people it is ethical for some it is not. The women of India who have become surrogates in the past think that whatever they are doing is “PUNYA”. A lot of emotions are involved in this process. The couples opting for surrogacy want a child of their won and the women who become surrogates do it so that they can earn more money than they usually earn so that they can secure the future of their own children. Nobody is right or wrong when the topic of motherhood arises. But we cannot deny the fact that poverty has driven these women to become surrogates. Only if they would earn a decent livelihood they would not have to take up this as an option. We need to be very careful as to what regulations we implement in our country regarding surrogacy.
This article is authored by Pratima Sharma, student of B.Com LL.B at Amity Law School.
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