INTRODUCTION
Over the years, the practice of surrogate motherhood and the upcoming consequences has expanded with the convergence of the development of advanced and new-fangled medical techniques. Infertility has still been in the list of the world’s unresolved and vexed issues. It affects the lives of millions of the people on the globe and results in issues such as divorces and psychological problems amongst people. The society generally urges the intended parent(s): either to adopt a child or to foster nobody. In view of the Indian society and culture, it could be concluded that adoption is a very long and tedious process. The stigma attached to the arrangement of adoption accompanied with the desire of ‘true’ heir (male), makes it hard for the intended parent(s) to opt for this arrangement. This sometimes, fades their hopes and dreams to pass on their values, beliefs and experiences to next generation and weakens the very concept of ‘family’ or ‘strong and full family’. On such a platform of life, the intended parent(s) are left with few options. One of those is, ‘Surrogacy’ or ‘Surrogate maternity’. In plain language, ‘Surrogacy’ is a state when another woman carries and gives birth to a baby for the intending parent(s) who want to have a child.[1].
The very word ‘surrogate’ means ‘substitute’.[2] This implies that the surrogate mother is the substitute for the mother who is unable to have a child. In the process of surrogacy, the surrogate mother is the biological mother of the child. The process of surrogacy has been used as a measure throughout the world. Intended parent(s) may figure out for surrogacy arrangement when they have failed via traditional methods or techniques (including In-Vitro Fertilization) of conceiving a child, the pregnancy is medically impossible or it becomes dangerous for the health or life of the mother or the couple to get pregnant and give birth to a child. According to the Artificial Reproductive Technique (ART) Guidelines, ‘Surrogacy’ is an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology where neither of the gametes belong to her or her husband, with the intention of carrying it to term and handing over the child to the person or persons for whom she is acting as surrogate. [3] A ‘surrogate mother’ is a woman who agrees to have an embryo generated from the sperm of a man who is not her husband and the oocyte for another woman implanted in her, to carry the pregnancy to full term and deliver the child to its biological parents(s).[4] The intending parent(s) is the person(s) who requests another to carry a child for them with the intention that they will take custody of the child following the birth. Such persons may, or may not be, genetically related to the child born as a result of the arrangement.[5]
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THE PRACTICE OF THE ARRANGEMENT OF SURROGACY
According to the Human Fertilization and Embryology Authority, the process of surrogacy functions in two kinds. The first kind is known as ‘Full Surrogacy’. It is also called as Host or Gestational Surrogacy. Full Surrogacy involves the implantation of an embryo which is created using the eggs and sperms of the intended parent(s), a donated egg fertilized with the sperm from intended father or an embryo created using donor eggs and sperm. The second kind is known as ‘Partial Surrogacy’. It is also called as Straight or Traditional Surrogacy. It involves sperm from the intended father and an egg from the surrogate mother. In such a case, the fertilization is done by artificial insemination or intrauterine insemination. The Full/Host/Gestational surrogacy in particular has become more popular in recent years.[6]
The agreement of surrogacy to give birth to the child may or may not include the monetary consideration (in terms of money). Thus, if the agreement posses a monetary consideration for the surrogacy, it will be considered as ‘Commercial Surrogacy’, and if the agreement does not possess a monetary consideration for the surrogacy, it will be considered as ‘Altruistic Surrogacy’.[7]
The practice of surrogate maternity is a paramount and indispensable issue in the contemporary world. This arrangement also raises crucial challenges regarding the rights (human rights) of the concerned parties, especially the surrogate mother. Such problems and issues should not be ignored in the veil of addressing the sufferings of the infertile couples or the desire of intended parent(s)n to have a child. Such human rights concerns should be highlighted and the solution should be sought for the protection of rights of the surrogate mother and child, before implementing an international legal mechanism to accept the practice of surrogate motherhood for the well- being of both the surrogate mother and the child.
The child involved in such arrangements is remarked as a ‘good or product’ like in commercial transactions. Neither the woman nor the child are treated as human beings and are in fact, treated as objects and as ‘means’. This is in contradiction to the recognition of the inherent dignity of humans, to quote the preamble of the Universal Declaration of Human Rights. [8]
THE CURRENT STATUS OF THE ARRANGEMENT OF SURROGACY
Surrogacy is run largely by private for-profit agencies which for a sizeable fee bring together the contracting parents-to-be and the birthmother.[9]
The various legal notions and implications with huge costs involve in this practice may differ between the lands. Different countries have taken different approaches to the arrangement of surrogacy[10].
According to the General Report on Surrogacy, ‘Surrogacy-friendly jurisdictions’ are those jurisdictions that are used for profit (Commercial Surrogacy) and in such states, the process of surrogacy is legal and is also performed on a large scale. Commercial surrogacy is a booming activity in several countries. There are various legal measures allowing intended parent(s) to obtain legal parentage, and there is no nationality, domicile or habitual residence prerequisite for the intended parent(s). Examples include: Uganda, Ukraine, the US states of Alabama, Arkansas, California, Connecticut, Illinois, Iowa, Maryland, Massachusetts, Minnesota, Nevada, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, West Virginia and Wisconsin, Russia, and the Mexican State of Tabasco. These are the jurisdictions where the surrogacy is practiced for profit on an unregulated basis. It is allowed by judicial precedent and by the statute, both. ‘Anti-surrogacy jurisdictions’ are those jurisdictions that outlaw surrogacy in all its forms. Examples include: China, France, Germany, the Australian state of Tasmania, and the US states of Michigan, New York and the District of Columbia. These jurisdictions prohibit the arrangement of surrogacy in all its ways. ‘Surrogacy-neutral jurisdictions’ are those jurisdictions where surrogacy is regulated but only in an ‘altruistic form’. Such jurisdictions practice the mode of Altruistic Surrogacy. Examples include: Australia, Greece, Israel, New Zealand, South Africa, the United Kingdom, and several US states which prohibit the arrangement of surrogacy for profit (Commercial Surrogacy) and limit surrogacy to a relatively small number of altruistic arrangements. Some countries where all forms of surrogacy remain unregulated, neither expressly banned nor expressly permitted include: Argentina, Belgium, Brazil, the Czech Republic, Guatemala, Hungary, Ireland, Japan, the Netherlands, Spain, Venezuela, and the Mexican states of Coahuila and Mexico City, the Northern Territory of Australia, and some US states. Any surrogacy arrangement in this second sub-category (whether Commercial or Altruistic mode of surrogacy) would be considered void and unenforceable. [11]
The concept of surrogacy has been made a business and a high profile market. Surrogates are recruited and are operating agencies to make huge profits. They work as professionals and their ultimate goal is to maximize profit. This commercialization of surrogacy is harmful and raises alarms against the consequences resulting in the black market.
Surrogacy degrades a ‘pregnancy’ to a ‘service’ and a ‘baby’ to a product. It degrades the reproductive and medical technology.
THE ARRANGEMENT OF SURROGACY IN INDIA
Slowly but steadily, India is emerging as a popular destination for surrogacy arrangements for many rich foreigners. Compensated surrogacy (Commercial surrogacy) became legal in 2002.[12]
In view of an article of Indian Express, India has been a favourite country for those wanting a surrogate child. The cheap availability of the service enables an overuse of the practice with commissioning parents arriving from various other countries as well. In 2002, the Indian Council of Medical Research (ICMR) laid out various provisions and guidelines for surrogacy which turned the practice legal, but did not give it a legislative backing, though. This led to a booming surrogacy industry which had lax laws and no enforcements in the country. A study conducted in July 2012, backed by the UN, put the surrogacy business at more than $400 million with more than 3000 fertility clinics all over the country. The ICMR even without legislative backing, provided pro-surrogacy guidelines that protected to an extent, the surrogate mother and the commissioning parents. It prohibited sex-selective surrogacy, required the birth certificate to only have the names of commissioning parents, required one of the commissioning parents to be a donor, required a life insurance cover for the surrogate mother and ensured right to privacy of the mother and the donor, amongst the other things involved in the process.[13]
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However, the various reasons for the intended parent (s) (foreigners) coming to India in search of surrogate mothers, vary widely. The practice of surrogate motherhood in the country is usually undertook by the women coming from the spectrum of lower class to lower middle class backgrounds. This made India a hub for easy surrogacy and improved the surrogacy tourism in the country. Such factors led to a surrogacy boom in India over other nations and attracted people worldwide. The reason behind this is related to the presence of a huge number of women to take up these positions, generally due to financial incapacity of the family. These women are married and are typically in need of money or the monetary consideration in the agreement of surrogacy. The conspicuous and visible point here is that this need of surrogate mothers is so acute that almost a good amount of intended parent(s) agree to this price. The intended parent(s) often negotiate with this price in some cases, due to the consequences of competition in the market for these services. Ultimately, this consideration/amount serves as the economic lifeblood for the families and is spent on the basic and cardinal needs of the family such as education, medical treatments etc. These may seem trivial and inconsequential to many of us, but they become paramount needs for a country like India which lacks social, economic, political and moral safety nets and has an extensive aperture between the rich and poor which gets massive with each passing day.
In accordance to the Director-General, ICMR, Soumya Swaminathan, the past decade, commercial surrogacy has grown tremendously with a high pace in India. It is currently estimated to be $2-billion industry. Before November 2015, when the government imposed a ban, the foreigners accounted for 80 per cent of surrogacy births in the country.[14]
Due to controversy with intended parent(s) abandoning their children in India, the Indian government is moving to have a bond posted where intended parent(s) can financially support children that are born via Indian surrogates.[15]
A high court recently ruled that Indian surrogates are now entitled to pre and post natal maternity leave.[16]
The Indian Council for Medical Research has given Guidelines in the year 2005 regulating Assisted Reproductive Technology (ART) procedures.[17]
The Law Commission of India submitted the 228th report on Assisted Reproductive Technology (ART) procedures discussing the importance and need for surrogacy and the steps taken to control surrogacy arrangements with the recommendation to prohibit commercial surrogacy and allowing an ethical altruistic surrogacy to needy Indian citizens by enacting a suitable legislation.[18]
In 2014, a ban on surrogacy was placed for homosexual couples and single parents.[19]
Various other such measures have been taken to regulate the arrangement of surrogacy for the protection of rights of the surrogate mother and the concerned child.
THE SURROGACY REGULATION BILL, 2016
One such step is, The Surrogacy (Regulation) Bill, 2016. When India legalized commercial surrogacy in 2002, it slowly gave rise to a booming industry of foreign surrogacy requirements and fertility tourism, so much that commercial surrogacy was banned in 2015.[20]
According to Union minister for external affairs, Sushma Swaraj, ‘the need for the Surrogacy (Regulation) Bill, 2016, came after India emerged as a surrogacy hub for couples and the increased number of incidents reported on unethical practices.’[21]
In view of the article, ‘A critical analysis of the Surrogacy Regulation Bill, 2016’, the issues and questions regarding the foreign surrogacy caught the attention of eyes after the case of Baby Manji Yamada, i.e., Baby Manji Yamada Versus Union of India & Anr, on September 29, 2008. In 2007, a certain Dr. Patel working at the Akanksha Infertility Clinic, arranged for a Japanese couple Ikufumi and Yuki Yamada to have a surrogate baby by Pritiben Mehta. Pritiben was impregnated using a mix of Yamada’s sperm and an anonymous Indian woman’s egg. However, in the months to come Yamada and his wife filed for a divorce. None of the Indian laws covered whose child the baby (Manji) was, whether the woman who donated the egg, Pritiben, or Yuki Yamada. Furthermore, there was even a petition filed later in the court that Dr. Patel was running a child trafficking racket by abusing the lack of surrogacy laws and gaining easy money by enabling the arrangements of surrogacy. Although the case was resolved and Baby Manji was given to her grandmother Emiko. This as well as the booming surrogacy industry, the easy abandonment of children, and the exploitation of women who were forced to become surrogates many times in order to sustain their family, led to the necessity of this bill.[22]
According to the blog on, ‘The Surrogacy Regulation Bill, 2016’ the highlights of the Bill are – It permits surrogacy only for couples who cannot conceive a child and this procedure is not allowed in case of any other medical conditions which could prevent a woman from giving birth to a child. The child born through surrogacy will have all the same rights as that of a biological child. It specifies eligibility conditions that need to be fulfilled by the intending parent(s) in order to opt for surrogacy. Central and state governments will appoint appropriate authorities to grant eligibility certificates to the intending parent(s) and the surrogate mother. These authorities will also regulate surrogacy clinics. These registered surrogacy clinics will have to maintain all the records for a minimum period of 25 years. The intending parent(s) must be Indian citizens between the ages of 23-50 years (woman) and 26-55 years(man) and married for at least five years with at least one of them being infertile. The surrogate mother has to be a close relative who has been married only once during her lifetime and her age should be between 25-35 years and has had a child of her own. She may also donate her own egg for the pregnancy, if needed. No payment other than reasonable medical expenses can be made to the surrogate mother. The surrogate child will be deemed to be the biological child of the intending parent(s). Undertaking surrogacy for a fee, advertising it or exploiting the surrogate mother will be punishable with imprisonment for 10 years and a fine of up to Rs 10 lakh. In order to take care of those mothers or couples who have opted for surrogacy as on date, the Bill prescribes a period of 10 months to ensure that inconvenience is not caused to the couples and surrogate mother. For an abortion, in addition to complying with the Medical Termination of Pregnancy Act, 1971, the approval of the appropriate authority and the consent of the surrogate mother is required. The Bill does not specify a time limit for granting such an approval. Further, the intending parent(s) has no say in the consent to abort.[23]
This Bill if passed, will be applicable to the whole of India, except the state of Jammu and Kashmir.[24]
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In view of the article, ‘A critical analysis of the Surrogacy Regulation Bill, 2016’, the bill is made with the intention of preventing the exploitation. This limits the possibility of surrogacy to a very large extent. The idea of ‘Altruistic Surrogacy’ expressed in the Bill, greatly limits both the potential surrogate mothers as well as the couples wanting children, because the women can become surrogates only once and the couples who do not find willing relatives have only one way out – ‘Adoption’ (In other countries Altruistic surrogacy is allowed but is not limited to relatives and one-time pregnancy). Additionally, egg donations are also banned, perhaps in order to curb child trafficking and illegal surrogacy racket. The bill is extremely important in certain places of India for example, Gujarat, where ‘baby farms’ exist, i.e. the underprivileged and penurious women are rounded up in scores and are asked to practice surrogate motherhood for the potential parents. One of the most contentious points of the bill is its blatant ban on surrogacy rights of homosexual couples, live-in parents and single parents. The bill does not permit the arrangement of surrogacy for homosexual couples, live-in parents and single parents and thus, denies the surrogacy rights. Neither the NRIs nor the Overseas Indians can opt for the arrangement of surrogacy in India. They are also prohibited under this Bill. According to Union minister for external affair, Sushma Swaraj, ‘the arrangement of surrogacy for homosexuals is against ‘Indian Ethos’, although homosexuality has been constantly mentioned in various Indian texts.’ [25]
According to the article, ‘The Surrogacy (Regulation) Bill, 2016: A Critical Appraisal’, the issue of maternity relief for intended couple as well as the surrogate mother has already been discussed by different High Courts in India. However, the bill is silent about this issue. The Bill does not define the term ‘close relative’. There may be couples whose close relatives may not be willing to act as a surrogate or such relatives does not satisfy other eligibility conditions mentioned in the Bill. In such cases the intended couples will not be able to enjoy the benefits of surrogacy procedures and satisfy their joy of having a child genetically related to them. The Bill is silent about the issue of the breach of terms and conditions of surrogacy by surrogate or indented couple during the surrogacy process or afterwards.[26]
In view of the article ‘The Surrogacy (Regulation) Bill, 2016’, economically, the bill is bound to have the affect on the thriving medical tourism in the country and various people associated with it. There are certain countries, where the surrogacy is banned for commercial reasons and people from such jurisdictions came to India. There were also others who came from the jurisdictions where surrogacy was available, but at an exorbitant price. India being a safe core in comparison to countries like Indonesia, where fertility procedures are completely unregulated, attracted the intended parent(s). Competency of the Indian doctors and the environment of clean and hygienic clinics became an important factor. There was also a contract to be signed which eliminated exploitation and blackmail possibilities on both sides. A blanket ban on such medical tourists makes no sense at all, especially when we issue visas to them for other forms of medical tourism.[27] Hence, limiting the practice surrogacy only to Indian citizens is a measure which is against the contemporary developments in international trade relations.
The recent proposed draft of the Surrogacy Regulation Bill, 2016 passed by the Health Ministry, was shown green flag by the Union Cabinet on August 24, 2016. The draft of the Bill is set to be introduced in the Parliament soon.
While the Bill now stays in the Parliament and is debated on every detail, the basic notion of dismantling the commercial surrogacy is at its zenith.
The concept of surrogacy is not backlashed by religious barriers because there are no such references made in the religion going against the practice of surrogacy. In a general view, there is no such law that deals with various aspects of surrogacy and at present, it is governed by the Indian Contract Act, 1872.
There are also the guidelines by ICMR (Indian Council of Medical Research) which are not enforced properly. And it is this absence of such absolute regulations and guidelines that has led to a flourishing practice of surrogate motherhood or surrogate maternity violating the rights of the parties concerned in the country.
CONCLUSION
In conclusion, it could be said that regardless of all the existing notions of moral, ethical, social, legal and other problems attached with the arrangement of surrogacy, the practice of surrogate maternity is still gaining momentum each year throughout the world and keeping in mind the contemporary developments, the arrangement of surrogacy cannot be demolished completely. With this pace one day in the near future, the human society will be accepting and adopting this medical technique throughout lands and boundaries. However, the issues of rights (human rights) of women and the child should also be addressed. It is important to prevent the violation of the rights of the surrogate mother and the child or the parties concerned. A proper legal mechanism and backing should be constructed at both national and international level, with all the reasonable measures to succour the women and child. This is necessary to demolish the social condemnation of the arrangement of surrogacy.
[1] Definition, ‘Human Fertilization and Embryology Authority’, ‘Surrogacy’.
[2] Karkal Malini, ‘Surrogacy from a feminist perspective’, ‘Indian Journal of medical Ethics’, Oct-Dec (1997).
[3] ‘The Assisted Reproductive Technologies (Regulation) Bill-2010’, ‘Indian Council of Medical Research (ICMR),’ Ministry of Health &Family Welfare, Govt. of India.
[4] Petra De Sutter, ‘Human rights and ethical issues related to surrogacy’, AS/SOC (2015) 13.
[5] Ibid.
[6] ‘Human Fertilization and Embryology Authority’, ‘Surrogacy’.
[7] Definition, ‘Reproductive Law’, Lisa Feldstrin Law Office.
[8] Claire de La Hougue and Caroline Roux, ‘Surrogate Motherhood and Human Rights: Human, Legal and Ethical Issues’, September 2015.
[9] Morgan Holcomb & Mary Patricia Byrn, ‘When Your Body Is Your Business’, 85 WASH. L. REV. 647, 650 (2010).
[10] Katarina Trimmings and Paul Beaumont, ‘General Report on Surrogacy’, Chapter 28.
[11] Petra De Sutter, ‘Human rights and ethical issues related to surrogacy’, AS/SOC (2015) 13.
[12] Neetu Chandra Sharma, ‘Poverty forces workers’ wives to become surrogacy mothers’, ‘Mail Today’, July 3, 2015.
[13] Tarishi Verma, ‘What are the surrogacy laws in India: Here is everything you need to know’, ‘Indian Express’, March 6, 2017.
[14] Soumya Swaminathan, Director-General ICMR, ‘Why the Surrogacy Bill is necessary’, ‘The Hindu’, August 28, 2015.
[15] Amrit Dhillon, ‘India to introduce law requiring bond for surrogacy hopefuls’, ‘Sydney Morning Herald’, July 3, 2015.
[16] Mel Spencer, ‘New surrogacy laws in India cause alarm for conservatives’, July 21, 2015.
[17] The Assisted Reproductive Technologies (Regulation) Bill-2010, Indian Council of Medical Research (ICMR), Ministry of Health &Family Welfare, Govt. of India.
[18] Soumya Swaminathan, Director-General ICMR, ‘Why the Surrogacy Bill is necessary’, ‘The Hindu’, August 28, 2015.
[19] ‘International Medical Travel Journal’, December 07, 2015.
[20] Malavika Ravi, ‘A critical analysis of the Surrogacy Regulation Bill 2016’, August 31, 2016.
[21] ‘What is surrogacy? Everything you need to know’, ‘The Indian Express’, March 06, 2017.
[22] Malavika Ravi, ‘A critical analysis of the Surrogacy Regulation Bill 2016 ’, August 31, 2016.
[23] PRS Legislative Research, ‘The Surrogacy Regulation Bill 2016’.
[24] Press Information Bureau, Government of India, Cabinet, August 24, 2016.
[25] Malavika Ravi, ‘ A critical analysis of the Surrogacy Regulation Bill 2016 ’, August 31, 2016.
[26] Dr. Aneesh V Pillai, ‘The Surrogacy (Regulation) Bill, 2016: A Critical Appraisal’, ‘Live Law’, January 22, 2017.
[27] ‘Insights into issues’, ‘The Surrogacy (Regulation) Bill, 2016.’
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