By Santhiya V[*]
Introduction
The right to reproduce is one of the basic human rights of people. Along with the desire to reproduce, there is always the issue of infertility. Infertility is not something new and only experienced in this generation. Even in ancient India, couples who were infertile would adopt the child of their siblings or relatives. Due to the advancement of technology, now people have various solutions for infertility, such as IVF procedures, sperm and egg donations, and even surrogacy. These methods, except the IVF procedures, are not well received by the Indian society and are considered to ‘stain their bloodline’ and so most couples who undertake these methods often keep it a secret. But the same is not possible in surrogacy.
In Indian history, the concept of surrogacy can be traced back to Hindu mythology and can be found in the Mahabharata. One such instance is the birth of Draupadi and her twin brother being born from a Yagnakunda; Another instance is when the God Vishnu transferred Devaki’s seventh foetus from her womb to Rohini, Vasudeva’s other wife’s womb, who was later born to be Balaram; and surrogacy is also evident in the birth of the hundred Kauravas. Even though the concept of surrogacy has been around for a very long time, it continues to be a very controversial topic. No legislation looks into this, and although there was a bill proposed regarding this, it has not yet been passed.
Issues In Surrogacy
Surrogacy has been taking place for quite a few years now. The first case relates to surrogacy that had the attention of the whole world media Baby M case, a case from the Supreme Court of New Jersey. In this case, a couple decided not to have a baby because of their wife’s illness and so they entered into an agreement with a woman who would be the surrogate mother. Later due to certain reasons, the deal broke down and the surrogate mother wanted to keep the child with her. The case went to Court. The court held that this contract is invalid because this contract violated the law prohibiting any exchange related to obtaining a child. Furthermore, the court said that any contract regarding surrogacy is against public policy and is immoral and so void in the eyes of law.
Similarly, in India, a case with a lot of attention is a case of Baby Manji Yamada v. Union of India. In this case, a Japanese couple contracted a woman to be the surrogate mother of their child. Few months before the birth of the child, the couple got divorced and neither the surrogate mother nor the intended mother wanted to take custody of the child. The father wanted to take custody of the child, but faced issues because the Indian legal system did not recognize the adoption of a single man. The case went to the Supreme Court and under exceptional circumstances, a certificate of identity was issued by the passport authority to the baby. Finally, the Japanese government issued a one year visa to the baby on humanitarian grounds and the baby’s grandmother had temporary custody of the baby.
This case resulted in an increase in the debate surrounding the concept of surrogacy in India. Issues like the exploitation of the surrogate mother, especially because of the lack of a legal contract, came to light. This issue is mostly because these women who act as surrogate mothers mostly agree to this as a last resort to earn money and they are also usually illiterate and have little or no knowledge about contracts. So, these contracts often do not have clear provisions regarding the position of the surrogate mother.
Commercial Surrogacy
At first, surrogacy was done within the family, that is, the surrogate mother was usually a family member of the intending couple. As time passed, many women became surrogate mothers in exchange for money and this process was commercialized. Women have the power to procreate and unfortunately, few women are not able to do that. So, the concept of surrogacy would mean, a biological baby for the intending mother, if she gives her egg and monetary benefits for the surrogate mother. This is mostly referred to as ‘rent a womb’. This whole concept commercializes the birth of a baby, which is a natural process and so few people consider this to be unethical.
Commercialized surrogacy is banned and deemed to be illegal in most countries, a few of them are, Australia, Hong Kong, Canada, Belgium, the United Kingdom, France, Germany, Italy, and the United States of America, though California took a different point of view and based on its policy on genetics, according to which, it accepts surrogacy if the intending couple has contributed some genetic material. There are several countries where commercial surrogacy is legal, which includes, Russia, Ukraine, Georgia, and several states of the USA. In India, despite commercial surrogacy being a huge question, there is no legislation to determine if commercial surrogacy is legal or not, and it is based on ICMR guidelines. In 2019, a bill was proposed in Parliament in regard to surrogacy, but it has not yet been passed.
The Surrogacy Regulation Bill, 2019
This Bill defines surrogacy, commercial surrogacy, and altruistic surrogacy. This bill also bans commercial surrogacy and only allows altruistic surrogacy. The practice of commercial surrogacy is considered to be an offense and is punishable with imprisonment of up to ten years and a fine up to Rs. Ten lakhs. To permit surrogacy, there are several criteria, which are as follows:
- The intending couple should get a certificate of infertility from the appropriate authority and it should always be an altruistic surrogacy
- The child of surrogacy should not be intended for any illegal exploitation and should also be in compliance with the conditions specified by the Board.
- In the case of abortion, a written statement of consent should be given by the surrogate mother and be authorized by the appropriate authority and it should be according to the Medical Termination of Pregnancy Act, 1971.
- The surrogate mother has the right to withdraw from the procedure, before the implementation of the embryo in her womb.
The Bill also goes on to give the eligibility criteria of the intending couple and surrogate mother. The intending couple to proceed with the surrogacy has to obtain certificates of essentiality and eligibility from the appropriate authority. To obtain a certificate of essentiality, the intending couple should provide the following to the appropriate authority: a certificate proving the infertility of either one or both of the couple from the District Medical Board; an order for parentage and custody of the child from the magistrate; and insurance coverage for the surrogate mother for 16 months covering the postpartum delivery. To get the certificate of eligibility, the couple should be in Indian citizens, married for a minimum of five years and the wife should be between 23 to 50 of age and the husband should be between 26 to 55 of age and the couple should not have any surviving child and they should also follow any conditions specified by the Board.
To be a surrogate mother, a woman should be a close relative of the intending couple and between 25 to 35 of age, she should be married to a child of her own. She should have the physical and mental fitness to be a surrogate mother and she cannot give her gametes for the procedure. A woman can be a surrogate mother only once in her life. She should prove the above thing and get the certificate of eligibility from the appropriate authority.
Conclusion
The 2019 Surrogacy Bill was proposed in the Parliament to regulate various aspects of surrogacy, but it did not have a complete understanding of surrogacy. The concept of surrogacy is quite different from other things, because it has emotional, physical and economical elements in it. Passing a bill about surrogacy would mean striking a balance among all these elements, which this 2019 Bill did not do. A complete ban on commercial surrogacy would only increase commercial surrogacy by illegal means, with the involvement of middlemen, which is much worse, especially for women who act as surrogate mothers.
The Bill also did not look into other people who would consider surrogacy, like, transgenders, homosexual couples, a divorcee, a widow, or widower, and couples who cannot have a biological child because of any illness of the mother, which could affect the child and the mother, where the mother has to get pregnant. This is a violation of Article 14 of the Indian Constitution. Forcing a person to disclose their infertility, would amount to an invasion of that person’s privacy and would violate their right to privacy. Further, banning a complete profession is a violation of Article 19(1)(g). This ban on commercial surrogacy is not a reasonable restriction under Article 19(6), because the Supreme Court in a case has held that, if there is any other alternative for the ban, then the profession cannot be banned. Here, commercial surrogacy was banned because of the exploitation of women as surrogate mothers, now, instead of completely banning commercial surrogacy, the legislation could have included provisions to ensure that these women are not exploited. Hence, this Bill needs revision and should be looked into by the legislature.
[*] Student (Intern), BBA. LL.B. (H), Alliance University, Bengaluru
