Legal Implications of Surrogacy

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A surrogacy agreement is an arrangement to carry a pregnancy for intended parents. Surrogacy can be divided into two main types: gestational and traditional. In the case of gestational surrogacy, pregnancy occurs due to the transfer of an embryo created by in vitro fertilization such that the resulting child is genetically unrelated to the surrogate.

Traditional surrogacy involves the impregnation of the surrogate naturally or artificially, and the resulting child is genetically related to the surrogate. A surrogacy arrangement is usually sought by intended parents when pregnancy is either medically impossible or is considered very risky for the mother’s health. These agreements may or may not include monetary compensation. The arrangement is termed commercial surrogacy when the surrogate is given compensation higher than the medical reimbursement and other reasonable expenses; otherwise, it is referred to as altruistic or non-commercial surrogacy. Surrogacy laws and costs can differ significantly across jurisdictions in various nations. However, surrogacy is not encouraged in all countries. In France, Germany, Sweden, and Spain, the people have voted against surrogacy. In France, commercial surrogacy was banned; and in 1991 its highest court announced that “the human body is not lent out, is not rented out, and is not sold.” In the United Kingdom, South Africa, and Argentina, where surrogacy is allowed, its requests are taken into consideration by independent surrogacy committees. In the United States, rules and regulations on surrogacy differ among states. California has legalized commercial surrogacy, whereas it is illegal in some states and some others, thorough regulations are introduced. In such a scenario, couples in these countries where legalities involved in commercial surrogacy are complicated would rather opt for other countries where the legal procedure in this issue is much simpler. In the United States and few other countries, the embryo implantation attempts, surrogacy contracts, and post-birth rights of the surrogate mother are all governed by laws; while such contracts and laws in India are still underdeveloped.

Commercial surrogacy is legal in India. Certain laws have been framed to protect the rights of the surrogate mother and the intended parents. The low cost of the whole procedure compared to other countries is another factor that adds up to its attraction. The Assisted Reproductive Technologies (ART, Regulation) Bill 2010 is an act that aims to provide a national framework for the accreditations, regulation, and supervision of assisted reproductive technology clinics, for prevention of misuse of assisted reproductive technology, for the safe and ethical practice of assisted reproductive technology services and matters connected therewith or incidental thereto. However, this bill does not address surrogacy. There is no limit on the frequency of use of surrogacy by an intending couple. A government body has not been appointed to check the family background or status of the couples. The ART Bill prohibits sex-selective surrogacy as per the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act. However, there is no means to monitor the operation of the clinics.

Commercial surrogacy was made legal in India with the landmark Supreme Court judgment and later, the Indian Council of Medical Research Guidelines 2005 which prescribed conduct and use of ART procedures or treatment by fertility clinics. The ART Bill legalized commercial surrogacy by prescribing monetary compensation to the surrogate mother by the intending couple. Law Commission Report No. 228 (2009) recommends the legalization of altruistic or non-commercial surrogacy arrangements in India to protect the surrogate mother from exploitation.

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India only has guidelines and no legislation governing surrogacy. Further, these laws lack clarity and are ambiguous. The surrogacy agreement governs the contractual relationship between the parties. The surrogate could claim the child as her own or enforce parental visitation or custodial rights, thus creating problems. Also, the surrogate’s husband may claim the child under Section 112 of the Evidence Act. The parents in this arrangement need to prepare a surrogacy agreement and ensure a strong contract. In India, people are practising surrogacy while there are many orphan children. Couples who want to adopt these children are subjected to a complex procedure. A common adoption law for all the citizens across religions or Indians living in other countries is not present. Hence, they are forced to opt for surrogacy. The Guardian and Wards Act, 1890 allows guardianship and not adoption. The Hindu Adoption and Maintenance Act, 1956 does not allow non-Hindus to adopt a Hindu child, and immigration procedures after adoption pose obstacles. Simple adoption procedures will reduce the rates of surrogacy. However, commercial surrogacy should be encouraged. The rights of women and children should be protected through the framing of laws that will cover all the present loopholes.


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