Trailing the journey of Surrogacy Laws in India

Achintaya Soni, University Institute of Legal Studies, Panjab University, Chandigarh

INTRODUCTION

The word “Surrogate” has its origin in the Latin root “Subrogare” which means ‘to substitute.’ It basically means a person deputizing for another in a specific role. The surrogate mother implies a woman who bears a child with the intention of giving away this child to another person or couple, commonly referred to as the “intended” or “commissioning” parents.[1] Surrogacy is appropriately defined and explained in the case of K. Kalaiselvi v. Chennai Port Trust[2]-

“Surrogacy is a well-known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child’s genetic mother or she may be as a gestational carrier, carry the pregnancy to deliver after having been implanted with an embryo.”

It is a well-known method of reproduction and has been practiced in India for centuries. The fabric of the Indian culture recognises the necessity of having a child upon which a marital relationship is said to be fulfilled and not having a child is viewed as a stigma in the Indian society. Therefore, for those unfortunate couples who are not able to conceive a child due to certain reasons such as infertility, being of the same-sex or age related factors etc. a surrogate mother plays a role of ‘an angel in disguise.’


This practice has resulted in the flourishing of the ‘reproductive tourism industry’ in India whereby, India in a very short span of time came to be called as a ‘surrogacy hub.’ This spike in the demand for surrogacy has attracted a large number of couples not only from India but also from abroad. However, the lack of regulations in this sector has led to the exploitation of the surrogate mother and the new-born child. Such exploitation was usually seen in commercial surrogacy and therefore, it mandated the call for necessary regulations in this sector. Consequently, the Surrogacy (Regulation) Bill, 2019 was introduced encompassing various provisions for the regulation of the sector. Thus, this article aims to discuss the Bill in detail and critically analyse its various provisions.


Types of Surrogacy:

Four types of surrogacy are recognised by the Court[3], which are-

  1. Traditional Surrogacy: This is also called the straight method. In this, the surrogate mother is pregnant with a biological child, but the intention of conceiving the child is to relinquish the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female.

  2. Gestational Surrogacy: This is also called the host method. In this, the surrogate mother (gestational carrier) becomes pregnant via embryo transfer with a child, of whom she is not the biological mother. This may involve the further relinquishment to the biological mother/ father to raise or to parent, who are themselves unrelated to the child.

  3. Altruistic Surrogacy: It denotes a situation where a surrogate receives no financial reward for her pregnancy or relinquishment of child (although usually all expenses related to pregnancy and birth are paid by intended parents such as medical expenses, maternity clothing and other related expenses).

  4. Commercial Surrogacy: In this method, the gestational carrier is paid to bear the infant in her womb, which is usually resorted to by well-off infertile couples who can afford the expenses involved or people who save and borrow in order to fulfil their dream of being parents. It is often referred to, by emotionally charged and potentially offensive terms- ‘womb for rent’, or ‘outsourced pregnancies or baby farm.’

EVOLUTION OF SURROGACY LAWS IN INDIA

In 2002, India legalised Commercial Surrogacy, by way of which, foreign firms and companies were allowed to establish surrogacy centres which also assisted foreigners in paperwork related to surrogacy. This has resulted in exploitation of the surrogate mother and her womb by making it a business. Many economically poor women take to becoming surrogate mothers over and over again despite dire implications to their health. Also, the children born out of surrogacy are fitfully abandoned, and also there is an import of human embryos and gametes.

There has been widespread condemnation of commercial surrogacy because of these snags. Even the Law Commission of India in its 228th report presented in 2009, beat the drum for totally prohibiting commercial surrogacy and allowing only ethical altruistic surrogacy. Despite this, commercial surrogacy was upheld by the Hon’ble Supreme Court in the case of Baby Manji Yamada v. Union of India[4]. Similarly, in the case of Jan Balaz v. Anand Municipality[5], the Gujarat High Court reiterated the apex court judgment upholding commercial surrogacy.

The Surrogacy (Regulation) Bill, 2019

The Ministry of Health and Family Welfare introduced The Surrogacy (Regulation) Bill, 2019 on July 15, 2019, in the Lok Sabha. This bill was introduced to regulate the practice of surrogacy and as a progressive measure meant to retrench the exploitative practice of “baby outsourcing.”


1. KEY HIGHLIGHTS OF THE BILL

The Bill was introduced with the purposes[6] such as providing relief to infertile couple, couple suffering from any other disease specified in the regulation, prohibiting commercial surrogacy and protecting the children born out of surrogacy from exploitation, sale or prostitution. The Bill Specifies certain requirements for intending couples[7]- to have a certificate of essentiality and certificate of eligibility to be eligible for taking a child in surrogacy. These are issued only upon fulfilment of specified conditions such as having a certificate of proven infertility from the District Medical Board, 16 months of insurance coverage for the surrogate mother, the couple being an Indian citizen for at least 5 years, where the age of the wife and the husband should be 23-50 years and 26-55 years old. Also, they should not be having a surviving child except a child who is mentally/physically challenged or suffering from fatal illness. The Bill also specifies certain requirements to be eligible to be a surrogate mother[8] which include being a married woman having her own child and between the age of 25- 35 years, being a close relative of the intending couple, not acting as a surrogate mother more than once etc. The bill provides for the constitution of a National and State Surrogacy Boards by Central and State governments respectively. The National Surrogacy Boards are provided with the task of advising the Central government on the matters related to surrogacy, laying down guidelines of accepted conduct of surrogacy clinics, and supervising the work of State Surrogacy Boards.[9] The State Surrogacy Boards have to perform functions to monitor implementation of the Act in the states, and to send consolidated reports regarding the activities undertaken by the state to the National Surrogacy Board.[10] The Bill also encompasses provisions for offences and their penalties[11]. The offences recognised include, involvement in commercial surrogacy through advertising or practising, exploitation of the surrogate mother in any manner whatsoever, abandoning or exploiting a surrogate child by the couple, and selling or buying the embryo or gametes for surrogacy. It is pertinent to note that every offence under the bill is cognizable, non-bailable, and non-compoundable and the punishment for the same is imprisonment for 10 years and a fine up to 10 lakh rupees.

2. CRITICAL ANALYSIS OF THE BILL

The bill has faced a lot of criticism due to its restrictive approach. It has permitted surrogacy only for married couples of a certain age limit and period of marriage, excluding homosexuals, couples in a live-in relationship, and divorced/ widowed couples. Incontestably, the government has the power to impose restrictions upon one’s fundamental rights, but such restrictions have to be reasonable and not go ultra-vires the limits imposed by the Constitution. But, the restrictions imposed by the Bill violate the ‘reproductive autonomy’ of the citizens and also results in a gross inequality in surrogacy matters. Article 14 of the Constitution ensures equality before the law and equal protection of laws and permits reasonable classification based on intelligible differentia and legitimate goals.[12] However, the Bill does not qualify the test of reasonable classification because of its restricted approach of disallowing a certain class of people from the practice of surrogacy, on the basis of their nationality, marital status, a period of marriage, age and sexual orientation. Also, the matters of reproduction, procreation, child-bearing, motherhood etc. fall under the ambit of Article 21 of the Constitution i.e. right to life and privacy, therefore, guaranteeing the woman autonomy over such matters.[13] Any interference by the State into such matters would amount to infringement of a fundamental right. The Bill is also ambiguous on the term ‘close relative’ used under section 2(b) (II). The section allows only close relatives to be the surrogate mother, but the relationship to what extent is considered close is nowhere defined neither does the bill specify the relationships included in the term ‘close relative.’


Albeit, the Bill provides for stringent punishment for offences, however, it is likely to result in fewer convictions due to the absence of a robust implementation mechanism.

The Bill overtly ignores the fact that surrogacy has been proved to be a source of livelihood for economically weak women and blatantly declares commercial surrogacy illegal. The entire Bill has been drafted without taking into account the various emotional and physical factors at stake.

CURRENT SCENARIO

On 26th February 2020, the Union Cabinet approved the Surrogacy (Regulation) Bill, 2020. It is said to have incorporated certain changes to the 2019 Bill, upon the recommendations suggested by the Select Committee appointed in November 2019.

The new Bill allows access to surrogacy to single women, widows, divorcees and persons of Indian origin, who were initially barred from it. It has also increased the insurance cover for surrogate mothers up to 36 months. The criteria of “close relative” surrogate have been eliminated as it is said to decrease the availability of surrogate mothers and also affects the genuine and the vulnerable. The minimum period of 5 years of marriage of couples has also been omitted.


The committee also recommended that the authorities of both central and state governments submit data of the number of surrogacy procedures, surrogacy clinics and all other relevant aspects that would help keep track of surrogacy in the country. This would regulate the abuse of surrogacy in the country.

CONCLUSION

The 2019 Bill made an appearance in the time when there was a greater demand for regulation of wringing commercial surrogacy and it successfully embargoed commercial surrogacy, thus rescuing the potential sufferers from its claws. But it included certain provisions that are blood- curdling and hair- raising. It is devised in a way to make the targeted citizens devoid of their fundamental rights and autonomy, where rather it should be a prerogative of the couple to choose their way of parenthood and also the autonomous decision of a woman to be a surrogate mother. The enactment of legislation keeps all-inclusive the broad outset of facts and situations seemed necessary, which would be all-inclusive of provisions based on relevant apprehensions. But the present bill blatantly ignores certain seminal and pivotal issues and certitudes even if certain required changes have been introduced in the Bill of 2020. A greater part of the aim of the proposed legislation revolves around the ‘pro’ and ‘against’ poles of commercial surrogacy, failing to answer certain important questions raised. The Bill seems to do more harm than good. While intended to monitor the exploitation of women and trafficking of minors, it demonstrates the general arrangement of a state prohibition or blue pencilling a movement entirely, rather than taking a gander at ways to utilize the legislation to improve the condition. Thus, it is a piece of uncertainty requiring more reflectivity.

[1]Insight into different aspects of surrogacy practices’, Accessed from: http://www.jhrsonline.org/article.asp?issn=0974-1208;year=2018;volume=11;issue=3;spage=212;epage=218;aulast=Patel [2] K. Kalaiselvi v. Chennai Port Trust [(2013) 3 MLJ 493 (1)]