What is Surrogacy? Present Status of Surrogacy Law in India

Surrogacy is a process in which a women gets pregnant, carries and gives birth to a child with the intention of handing the child to another after the birth. Usually, It is supported by a legal agreement in which the women agree to give birth of a child for another person who will ultimately become the parents of the newborn child.

On the basis of the creation of embryo, surrogacy is two types,

(1) Traditional Surrogacy:

In traditional surrogacy embryo is created by the eggs of the surrogate, in this process, the surrogate mother is the child’s biological mother because the surrogate mother uses her own egg which is artificially inseminated by the intended father’s sperm. The surrogate mother carries the embryo in her womb and gives birth to the child then gives that baby to the intended parents.

(2) Gestational Surrogacy:

In terms of legal issues, this type of surrogacy is considered less complex. In Gestational Surrogacy the surrogate is just a carrier and not the biological mother of the born baby because of the pregnancy of surrogate results from the transfer of an embryo by using the eggs of the intended mother and sperm of intended father through in vitro fertilization.

In terms of consideration, Surrogacy is two types, commercial surrogacy, and altruistic surrogacy. If the agreement involves a monetary consideration or compensation to the women, such surrogacy is considered as commercial surrogacy. While receiving no money consideration or any reasonable expenses is called altruistic surrogacy.

Countries like U.K, Canada, Denmark, New Zealand, Australia (except the northern territory) etc. had banned all forms of commercial surrogacy but they allow some forms of altruistic surrogacy. While France, Germany, Italy, Portugal, Spain etc. banned all forms of surrogacy whether commercial or altruistic.

Surrogacy in India:

Commercial surrogacy was legalized in India in 2002 and was legal until November 4, 2015. Over the years it had become a lofty business in India due to great global demand and available medical infrastructure. As per a study of United Nation in 2012 the surrogacy industry in India makes more than $400 million in a year with around 3000 infertility clinic in across the country.

In 2005 the Indian Council of Medical Research (ICMR) had provided some guidelines to the clinics in order to regulate the practice of surrogacy. As the commercial surrogacy was allowed then the guidelines also stated that the surrogate mother can receive any monetary compensation from the intended couples.

Surrogacy is a light of hope for those couples who are physically unable to produce children but the practice of surrogacy has been misused by foreigners and celebrities over the years and within a very short period of time, India becomes the largest hub of surrogacy.

One of the main reasons for increasing the practice of surrogacy in India is poverty. Many people in India live below the poverty line, they chose surrogacy as an occupation to feed their family members.

Due to poor economic conditions, many women forced to surrogate despite of poor health conditions, there were no specific laws regarding the post-care and expenses for the surrogate mother. Surrogates mothers were not given proper attentions after the pregnancy.

In 2008, the famous case of Manji v/s Union of India makes realized for the first time that a proper legal protection is required to the surrogate mother. In this case, a Japanese couple hired a Gujarati woman as a surrogate mother for their child. The woman gets pregnant and delivered a healthy girl child but before the birth of the child, the couple was separated by having a divorce. The couple refused to get the baby and Indian Government did not allow single male parent as a guardian of a female child for custody.

Japanese government refused to give citizenship to that baby as commercial surrogacy was banned in Japan. Later Indian Government issued a travel certificate to the bay and the Japanese Government gave visa. Now the child is under the custody of her grandmother Emkio Yamada.

This case made to realize the government that there is a lack of legal framework relating to the practice of surrogacy as it is misused by foreigners.

In order to regulate the practice of surrogacy in India and to avoid the exploitation of poor surrogate mother, Government had introduced The Surrogacy (Regulation) Bill, 2016 has introduced by the Ministry of Health and Family Welfare which made some changes of existed laws and provided some guidelines to the surrogacy clinics.

This Bill had banned any form of commercial surrogacy within India, however, the ethical surrogacy or altruistic surrogacy can be practice within India. But commercial surrogacy, as well as altruistic both, are prohibited for gay couples, foreigners or overseas Indian citizens.

The Bill has provided some conditions for heterosexual couples which they have to fulfill for the purpose of commission of surrogacy. These are,

  1. The intending couple must be an Indian
  2. They have been married and living as husband-wife for five years.
  3. Anyone of them or both is infertile.
  4. The female partner must be 23-50 years of age and male partner should be between 26-55 years of age group.
  5. The couple must not have any living child whether biological or adopted or surrogate.
  6. The surrogate mother must be a close relative of the intended couple.
  7. The surrogate mother must be married and has a child.
  8. She must be between 25 to 35 years of age.
  9. She must possess a certificate of capability to become a surrogate mother.
  10. The surrogate mother must not receive any monetary relief or compensation for becoming a surrogate mother.

Present status of Surrogacy in India:

The present situation of surrogacy law in India is it prohibits commercial surrogacy but allows ethical surrogacy or altruistic surrogacy. Intended couples can only hire their close relatives as the surrogate mother, however, the Surrogacy (Regulation) Bill, 2016 does not specify the definition of close relatives.

Only Indian hetero couples are allowed to have a child through surrogacy, a couple belonging from any other country or couple of homosexuality or any single parent is not allowed to have a child through the practice of surrogacy.

The Surrogacy (Regulation) Bill granted legal status to the surrogate child as the biological child. Any child born by way of surrogacy shall be treated as the biological child and shall enjoy all the rights as a biological child.

Penalties for engaging in commercial surrogacy in India:

The Surrogacy (Regulation) Bill, 2016 specifies that any person who takes the aid of any doctor or any surrogacy clinic for conducting commercial surrogacy shall be liable for punishment of five years imprisonment or more and fine up to five lakh rupees.

Also Read – Surrogacy – The Right Thing To Do?

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