This article discusses the legality of surrogacy and the proposed regulatory framework.
Introduction
The case revolves around a baby named Manji Yamada who was born by way of surrogacy, where the actual parents were of Japanese origin whereas the surrogate mother was of Indian origin. This case is revolutionary as it highlights the lack of surrogate laws in India and provides an alternative for the same. The case defines different types of surrogacy practised in India.
What is surrogacy?
The term “surrogacy” is derived from the Latin term “subrogate” which means ‘appointed to act in the place of’. The intended parent(s) is the individual or couple who intends to rear the child after its birth.
Surrogacy is a reproduction method in which a woman agrees to gestate and give birth to a child that she will not raise but hand over to the contracted couple. The surrogate may be the child’s genetic mother (traditional surrogacy) or maybe a gestational carrier(embryo implantation). In most cases, surrogacy shall be the only option available for parents who wish to have a biologically related child.
Types of surrogacy
There are four types of recognized surrogacy in India.
a) Traditional surrogacy
This type of surrogacy is also called a straight method surrogacy in which the surrogate is pregnant with her biological child. The child is conceived to relinquish the child to be raised by others or by the biological father and his spouse. The child can be conceived by three methods – I. artificial insemination using fresh frozen sperm; II. impregnation by IUI (intrauterine insemination); III. impregnation by ICI all of which is to be performed at a fertility clinic.
b) Gestational surrogacy
The gestational method is also called the Host method where the surrogate will not be the biological mother as the process is done by a method called embryo transfer. Hence the actual mother is the biological mother and the purpose of surrogacy is to gestate the child. The surrogate mother is called the gestational carrier.
c) Altruistic surrogacy
This type of surrogacy is where the surrogate receives no financial reward, but only the pregnancy and labour expenses, for her pregnancy and the relinquishment of the child. The
pregnancy and labour expenses include medical bills, maternity clothing, and other related expenses which are paid by intended parents.
d) Commercial surrogacy
As the name suggests, this type of surrogacy has a commercial or financial interest. In this method, the surrogate is paid to carry a child to maturity in her womb and for the relinquishment of the child. This type of surrogacy is followed by either wealthy and infertile couples who can afford the cost involved or by people who borrow and save to fulfil the dream of being parents. Commercial surrogacy is often referred to by offensive terms “wombs for rent”, “outsourced pregnancies” or “baby farms”.
Who may opt for surrogacy?
People may opt for surrogacy in any of the following or other situations:
- When a woman is infertile or cannot carry a pregnancy to term
- When a woman who underwent a hysterectomy or has a uterine malformation or recurrent of frequent loss of pregnancy
- When a woman has a medical condition that makes it dangerous to become pregnant or when a woman is fertile but not willing to undergo pregnancy
Facts of the case: Baby Manji Yamada v. Union of India
The case grew in the state of Gujarat in the year 2008. Baby Manji was of Japanese origin biologically. The Japanese couple – Dr Yuki Yamada (biological father) and Dr Ifumuki Yamada (biological mother). The surrogate mother is a gestational surrogate. This happened during the couple’s visit to India in the year 2007.
After which the biological parents developed marital problems and the biological mother went to Japan before the birth of the child. The father had also gone to japan as his visa expired. After birth, the baby Manji was under the care of paternal grandmother residing Anand at a clinic where the baby was breastfed by an Indian and was later shifted to Rajasthan intensive care unit as the child developed an infection during riots. The baby Manji was issued a birth certificate in the name of a biological father which was sufficient for adoption by Mrs Yamada.
Subsequently, a habeas corpus case was filed against the union of India through the ministry of home affairs challenging the legality of surrogacy in India and criticizing surrogacy as an illegal industry and there is a need for the law to regulate it.
The division bench of the High Court of Rajasthan ordered the production of children before the Court. This order was challenged by the grandmother in the Supreme Court in which the NGO M/s SATYA was respondent No.3.
Issues
The locus standi of respondent 3 was questioned?
Whether the writ petition is baseless as it does not prove in whose illegal custody the child was in?
Whether the petition is styled as public interest litigation even though there is no public interest involved?
Court Judgement
The Court set aside the case and rejected the issue of locus standi of respondent no. 3 as it was not required for the case. The Court held that the complaints relating to the misuse of surrogacy and it being an illegal racket in India should be made before the Commission for Protection of Child Rights Act, 2005. The Court also held that no complaint was made concerning Baby Manji and hence the order requiring her before the Court was invalid. The prayer for a grant of passport by the Regional Passport Authority to facilitate her transit out of Indian territory was allowed.
Ratio decidendi
The Commission for Protection of Child Rights Act, 2005 has been enacted for the protection of child rights and Children’s Courts for providing speedy trials of offences. Chapter III and Section 13 of the Act give the functions of the Commission.
In this case, the Commission has the right to inquire into matters of (i) deprivation and violation of child rights (ii) non-implementation of laws providing for protection and development of children, and (iii) non-compliance of policy decisions, guidelines, or instructions aimed at mitigating hardships to and ensuring the welfare of the children and to provide relief to such children, or take up the issues arising out of such matters with appropriate authorities.
After-effects of the case
A certificate of identification was issued to Baby Manji to facilitate the transit out of India. This fact was highlighted in the case of Jan Balaz v. Anand Municipality and Ors. in which the question of the nationality of twins born to an Indian surrogate mother with an unknown donor and sperm of father – Jan Balaz.
Surrogacy Regulation Bill, 2020
This was enacted in 2020. Features of the Surrogacy (Regulation) Bill, 2020 are as follows:
- It provides for the constitution of surrogacy boards at the national as well as state levels to ensure effective regulation.
- It seeks to allow ethical altruistic surrogacy to the intending infertile Indian married couple between the age of 23-50 years for females and 26-55 years for males.
- Only Indian couples can opt for surrogacy in the country.
- It makes it mandatory for the couple to obtain a certificate of essentiality and also a certificate of eligibility before going ahead with surrogacy.
- It also provides that intending couples should not abandon the child born out of surrogacy under any condition. The newborn child shall be entitled to all rights and privileges that are available to a natural child.
- The Bill also seeks to regulate the functioning of surrogacy clinics. All surrogacy clinics in the country need to be registered by the appropriate authority to undertake surrogacy or its related procedures.
- The Bill provides for various safeguards for surrogate mothers. One of them is insurance coverage.
- It also specifies that no sex selection can be done when it comes to surrogacy.
Libertatem.in is now on Telegram. Follow us for regular legal updates and judgments from the Court. Follow us on Google News, Instagram, LinkedIn, Facebook & Twitter. You can also subscribe to our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.
