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  • Writer's pictureLAWGIC STRATUM

Legal Aspects of Surrogacy in India

Author: Brahamdeep Kaur

It’s the dream of every couple to experience the feeling of parenthood, but due to infertility, this dream doesn’t become reality. But Surrogacy process has come up as a blessing for such couples. The word surrogacy has beenderived from the Latin word ‘Surrogatus” which means a substitute i.e., a person appointed to act in the place of another. According to Warnock Report (1984) HF&E, surrogacy is the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth. It is an arrangement whereby the intended parents agree with a woman to bear a child for 9 months and then handover it to them. The woman who bears the child is known as the surrogate mother and the child born out through this arrangement is known as a surrogate child.

The surrogacy arrangement is termed as Commercial Surrogacy when the surrogate mother is given compensation higher than the medical reimbursement and other reasonable expenses and as Altruistic or Non-Commercial Surrogacy if the surrogate mother is given only the requisite compensation and reasonable expenses thereof. It is notable that in India, there exist two types of surrogacy practices: (i) Traditional Surrogacy and (ii) Gestational Surrogacy. In Traditional Surrogacy, the pregnancy occurs artificially through Artificial Insemination and the resulting child is genetically related to the surrogate. Whereas in Gestational Surrogacy, the pregnancy occurs due to the transfer of an embryo created by invitro fertilization such that the resulting child is genetically unrelated to the surrogate.

There exist many countries in the world like Austria, Bulgaria, Denmark, Finland, France, Germany, Italy, Norway Spain, and Sweden, etc. where surrogacy is actually banned. Moreover, the procedural rates for surrogacy are quite less in India as compared to other countries of the world and there is the very easy availability of surrogacy services here. As a result, India emerged as a surrogacy capital and the number of Fertility clinics operating across India has increased dramatically. Surrogate services are advertised rampantly by the agents of the infertility clinic.

No doubt, surrogacy is a blessing for infertile couples all over the world. But there are certain problems with it. There has been a surge in complex legal and ethical issues as a result of the increase in the boom in surrogacy. Unethical practices like exploitation of surrogate mothers, selective breeding, import of human embryos, and gametes, abandoning of children have increased. As a result of the lack of clarity about legal issues, the surrogacy clinics, government officials, the intending overseas couples and the children born out of surrogacy had to face lots of problems regarding the status of the parent and child, citizenship, and immigration. Moreover, the protections available for intended parents and surrogates are less. The surrogate mothers face unethical treatment, poor living conditions, and exploitation. Surrogacy arrangement may seem to be beneficial for all concerned parties but still, certain important issues need to be addressed through carefully framed laws to protect the rights of both the surrogate mother as well as the intended parents.

In this regard, the Indian government has attempted to take steps to make the process safer for all involved. The Law Commission of India, in its 228th Report (in 2009) suggested the abolition of commercial surrogacy and continuance of Altruistic surrogacy by formulating suitable legislations.

Various legislation passed in India in context to Surrogacy like ICMR guidelines, 2006, The Assisted Reproductive Technology (Regulation) Bill, 2008, Draft Assisted Reproductive Technology (Regulation) Bill, 2014, The Surrogacy (Regulation) Bill, 2016. Recently, The Surrogacy (Regulation) Bill, 2019 was introduced in Lower House and was passed on 5th August 2019. The Bill is currently laid before the Upper House. The Bill had made commercial surrogacy illegal and focused only on altruistic surrogacy and has imposed a ban on foreign infertile couples to come to India for surrogacy. But after certain amendments in December 2018, the Bill legalized commercial surrogacy only for Indian infertile couples who have been married for at least 5 years and are still unable to bear a child. In this Bill, there has been more focus on altruistic surrogacy as the drafters considered commercial surrogacy to be the root cause of abuses of all the problems aboutthe surrogacy process. The bill had fixed certain criteria for surrogate mothers also as she could surrogate only once, she should be a close relative of couples, her age should be between 25- 35 years and she must be married having her child. Furthermore, she should possess the certificate of fitness (both medical and psychological) for surrogacy. The advertisements regarding commercial surrogacy, abusing surrogate mother, deserting surrogate child, trading or importing of human embryo or gametes for surrogacy purpose is made punishable with imprisonment maximum up to 10 years and fine maximum up to Rs. 10 Lakhs.

The surrogacy Bill of 2019 needs some more amendments before passing further to the President for his assent. The conditions to be followed for maintaining sanitation for the surrogate mother and her safe delivery at ART clinics must be specified. Commercial surrogacy should not be completely banned, rather it should be legalized with certain limitations so that both the surrogate mother as well as the intended parents are at benefit. Furthermore, it should be legalized for foreign infertile couples to have a baby in India through surrogacy with proper authorities and regulations made for it, so that negative implications of commercial surrogacy could be removed. All the necessary steps should be taken with due care to make this process of surrogacy better for every concerned party.


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