Legalisation and Regulation of Surrogacy

‘Womb on rent’, ‘Mom’s market’, ‘Baby Machine’ and other similar dire and disruptive notions etched by a misguided sense of satisfaction are nothing less than a bland rendition of the holiest relationship known to mankind.

INTRODUCTION

The word surrogacy owes its origin to the Latin expression ‘Surrogatus” meaning a substitute for another woman. The word surrogate which means a substitute of a person or a person in replacement of another person in a particular role. In legal term, it is an arrangement where a third person agrees to carry a pregnancy to a term, for another couple, after which the child legally becomes the intended parent’s child.

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TYPES OF SURROGACIES

There are different types of surrogacies:

  • Gestational and Traditional Surrogacy
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Traditional surrogacy includes fertilizing the surrogate’s egg with the father’s or intended donor’s sperm and the insemination could be done either through natural or artificial insemination. In this case, the surrogate is partially related to the child.

In case of gestational surrogacy, the commissioning mother’s egg is being fertilised along with the father’s or donor’s sperm and then the embryo is being transferred directly to the womb of the surrogate after fertilization.

 

  • Commercial and altruistic surrogacy

Commercial surrogacy is about the surrogate getting paid a fee for her services. The surrogate mother is being compensated by the commissioning parents for these arrangements.

In an altruistic surrogacy, the surrogate is either only been reimbursed for any costs incurred during pregnancy, such as medicinal cost or transportation costs or she doesn’t take any compensation. Usually, the surrogate, in this case, happens to know the commissioning parents. Most of them are usually between the family members or close friends or relatives

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HISTORY OF SURROGACY IN INDIA

Ever since the legalization of Commercial Surrogacy in India in 2002, due to the absence of regulations, low-cost fertility clinics and a large supply of poor women willing to provide this service, India became a hub of it, both nationally and globally.

A UN backed study conducted in July 2012 puts the surrogacy market at over $400 millions with more than 3000 fertility clinics in India alone.

Foreign nationals who want to escape tough surrogacy laws in their countries come to India in search of poor vulnerable women, who can be used for renting their wombs and producing babies for much petty amount of money due to the absence of adequate regulations to curb this menace.

Commercial surrogacy comes with its underlying controversial issues like hurting religious beliefs of various sects, danger of human trafficking etc. The induction of several Bollywood celebrities in this singular practice has notched up its glamour quotient and more and more people are opting for it. But the reality is far beyond the smoke screens.

The surrogate mother undergoes a catapult of physical and emotional drain and in worst cases, even abandonment by her husband. Exploitation due to poverty, lack of education, power asymmetry is some of the horrors of this beautifully conspired arrangement. In some cases, mothers who turn to surrogacy to support their families face ostracism while in the others, women are coerced, by their family members drunk in patriarchal mindset, to provide reproductive labor.

Treating the surrogate like a paid breeder, even abandoning the surrogate child in the adverse cases on finding the child is medically unfit, are some other problems waging against this practice. The famous case of Baby Manji Yamada vs Union of India & Anr. (2018) 13 SCC 518 (India) provides a stark testimony to it which left the country aghast with wounded psyches.

A research conducted by Professor Susan Golombok founded that the children who are not gestationally carried by the mothers often face adjustment difficulties including depression by the age of seven and most of them end up in foster homes. Others find drug and alcohol as an easy escape.

 

INTERNATIONAL PERSPECTIVE

The International Commercial Surrogacy is again embroiled in many scandals. The induction of new Assisted Reproductive Technologies (ART) raises questions about not only the commodification of women’s bodies but also about the naturalization of the woman-child dyad premised upon the predicational sentiments of motherhood.

In some countries, the national government does not regulate surrogacy, but certain states and provinces do. USA is the best choice for intending parents where the practice is well regulated and the process is completed legally and ethically.

There are several countries where surrogacy is not prohibited, but not really regulated either. Example, Kenya, Malaysia and Nigeria.

There are several other countries where surrogacy is prohibited like Cambodia, Denmark, France, Germany etc.

 

RISKS OF SURROGACY

Surrogacy is knitted with many medical and emotional risks.

On medical grounds, it carries some risks as of carrying a child and giving the birth which includes- nausea, morning sickness, etc. It can also lead to gestational diabetes, hypertension, or damage to reproductive organs. This is a risk regarding embryo transfer, where one can experience excessive bleeding or cramping or are very prone to catch infections. There is always a risk of carrying multiple pregnancy.

On emotional grounds, it can cause depression at the time and after the surrogacy. It can be a happy moment for the commissioning parents after birth, the surrogate can feel a sense of loss and grief following the birth of the baby. If the surrogate has a spouse, they should abstain from any sexual intercourse while she is trying to get pregnant. While pregnancy in itself is a difficult process, a woman who is being a surrogate can find this pregnancy emotionally exhausting or overwhelming.

 

SURROGACY LEGISLATION IN INDIA

In 2015, activist and lawyer Jayshree Wad moved to the Supreme Court of India high lightening the pitfalls in the Commercial Surrogacy Market. After much consideration, in 2015, the Government of India decided to prohibit surrogacy for foreigners.

The Surrogacy bill of 2019 was introduced in Lok Sabha on 15th July 2019 and passed by Lok Sabha on 5th August 2019. It states that at national as well as state levels there will be Constitution of surrogacy boards and it allows only ethical altruistic surrogacy to the intending infertile Indian couples married over 5 years which again opened a nasty pandora’s box of contradictions. Altruistic surrogacy in a patriarchy like India would be more by coercion than by will.

KEY FEATURES OF THE SURROGACY (REGULATION) BILL, 2020

  • It bans commercial surrogacy, seeks to allow ethical altruistic surrogacy to the intending infertile Indian married couples between the age of 23-50 years for females and 26-55 year for male
  • It provides for the constitution of surrogacy boards at the national as well as state levels to ensure effective regulation
  • Only Indian couples can opt for surrogacy in the country.
  • It also specifies that no sex selection can be done when it comes to surrogacy.
  • The suggested insurance cover for surrogate mother has now been increased to 36 months from 16 months provided in the earlier version.
  • While commercial surrogacy will be prohibited including sale and purchase of human embryo and gametes, ethical surrogacy to Indian wedded couples, Indian-origin married couples and Indian single woman (only widow or divorcee between the age of 35 and 45 years) will be permitted on satisfaction of specific conditions. (https://prsindia.org/billtrack/the-surrogacy-regulation-bill-2019)

 

 

ARGUMENTS IN FAVOUR OF COMMERCIAL SURROGACY

 

When it comes towards the protection of interests of the surrogate, then a blanket ban on commercial surrogacy is not a prudent step either as the surrogate gets to ern sufficient amount of money to support her family. Surrogacy is often less traumatizing as compared to IVFs and other infertility treatments.

Moreover, it allows homosexual couples, gay couples, singles, widows, divorcees or women who are not infertile but have complications in undergoing pregnancy, to have a child with whom they can share a similar genetic relationship.

Banning a practice just because of policy paralysis, fallacies in its ethical implementation or passing on the blame game on an alibi for inheriting a crippled executive is no solution. What we really have to understand is surrogacy is not a ‘need’ but a ‘right’ granted by Article 21 of the Indian Constitution which recognises the right to reproductive autonomy of the surrogate mother and the right of parenthood of the commissioning parents.

 

CONCLUSION

Though surrogacy is a service, the child born out of it is not a refundable good. Firm laws should be made defining the rights and the nationality of the child. (As in case of trans-national surrogacy)

Rights of surrogate mother and duties of commissioning parents should be channelized through legal and moral ways. Defaulters should be punished or otherwise, the famous dialogues from the movies like ‘Mrityudand’, mocking the status of the unborn (“Whose child, is it?) would continue to cast aspersions on the human conscience.

The effort is great and so will be the reward.

 

 

 

 

 

 

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