INTRODUCTION

Surrogacy has been a long-debated topic in India due to its moral and legal complexities. Low-cost technology, skilled doctors, and a steady supply of surrogates have made India a preferred destination for fertility tourism. Surrogacy Regulation Bill tries to regulate the practice of surrogacy by banning womb hiring. It tries to establish a balance between the rights of the infertile couples, child rights, and the rights of surrogate mothers.

MEANING AND DEFINITION

Surrogacy is a legal agreement between intended couples and surrogate in which a woman gives birth to a child for a couple and handover the child after birth. It is an assisted reproduction method where intended parents work with a surrogate who will carry their child until birth. People may seek a surrogacy arrangement when pregnancy is medically impossible or the risk is too high for the person(s) who wish to have a child.

TYPES OF SURROGACY

Surrogacy can be performed either in a traditional or gestational procedure. In traditional surrogacy, the surrogate’s eggs are utilized to fertilize the embryo, hence providing a biological link between the child and the surrogate mother. On the other hand, in gestational surrogacy, the eggs of the intending female are utilized, hence leaving no biological link between the child and the surrogate mother. However, gestational surrogacy is a complex process and new to the world, since its first case took place in 1986 by Vitro fertilization (IVF) technology[1].

Moreover, surrogacy can be dichotomously further divided on the basis of the provision of compensation to the surrogate mother. It gives us two kinds of surrogacies, viz. Commercial and Altruistic surrogacy. However, in the commercial form of surrogacy, the rights of the child are often neglected as argued by many people because the child becomes a mere commodity within a transaction. The exploitation of surrogate mothers, too much indulgence of an agent, abandonment of children born out of surrogacy are the complexities that have made this practice unpopular in many parts of the world. We have seen other complexities regarding the citizenship issue of the child in the landmark case of Manji Yamada of Japan[2], in which the Japanese couple had divorced during surrogacy. There is a provision in Japan that a single father cannot take the child at home even if he is genetically related. In the absence of clear laws, the child’s fate hung in the balance. There has been widespread condemnation of commercial surrogacy because of these very issues[3]. About 2,000-3000 surrogacy clinics are running illegally in the country and a thousand foreign couples resort to surrogacy practice within India. For instance, in 2014, an Australian couple refused to accept one of their biological twins born through surrogacy[4].  India’s fertility industry worth is at least $3.7 billion and around 2,000 foreign babies born from Indian surrogates annually[5]. By 2010, medical tourism was worth an estimated $2 billion to the economy and was forecast to grow to ten times that by 2020.

Altruistic surrogacy is a much better option over a commercial one. Furthermore, it might increase adoption rates in India because the reach to a willing surrogate would be difficult now. However altruistic surrogacy may not give attractive monetary advances to needy women. Moreover, the provision of “only close relatives can be surrogate” might affect the availability of surrogate mothers. Thus, it can be concluded that commercial surrogacy at its best, can allow low-skilled Indian women a life-changing amount of income; but at its worst, it can be exploitative and physically dangerous[6].

PRESENT PLIGHT OF SURROGACY

Due to improper legislation to regulate surrogacy, the practice of surrogacy has been misused by surrogacy laboratories and clinics which lead to rampant unethical practices. The journey of the surrogacy regulation bill has been started from 2002 in which commercial surrogacy was legalised in India and allowed for foreigners to do the same in India, that promoted medical tourism. But, the ultimate result of all this is that India has now become the ‘hub of surrogacy’.

In 2015, the government issued guidelines to prohibit surrogacy for foreign nationals. The Cabinet approved the Surrogacy (Regulation) Bill, 2016 which bans all other forms of commercial surrogacy in India. In 2019, this bill was re-introduced in the Lok Sabha and delivered to the selected committee. Furthermore, the 2019 Bill allows surrogacy only for infertile Indian couples who are married for at least 5 years. The Bill prohibits surrogacy arrangements for gay, live-in couples, single parents, foreigners. However, this crops another conflicting issue for the legislature, since section 377 of the IPC has been scrapped.

The bill has compelled an obligation for all surrogacy clinics in the country to register themselves with the registrar. Currently, as per 228th report of law commission[7], only altruistic surrogacy is allowed. The intended couples should not abandon such a child under any condition. If any person(s) go for surrogacy, they are under the compulsion to reveal their medical conditions. The 2019 bill does not deal with the maternity relief, which might be a drawback. To deal with the loopholes of 2019 bill new surrogacy (regulation) bill 2020 brought by the government which permits all women to be surrogate, establishing a National Surrogacy Board at the central level and State Surrogacy Board at the state level, proposed insurance cover has now been increased to 36 months from 16 months and commercial surrogacy will be prohibited.

REGULATION VERSUS BLANKET BAN OF COMMERCIAL SURROGACY

The surrogacy sector is vilified by some who say that the clinics are “baby factories”. Moreover, it is an assault to a woman’s dignity and her indispensable right over her body. Article 14 and Article 21 of the Indian constitution deal with the right to equality, right to life, and personal liberty, respectively. Such a violation of one’s body is an explicit violation of these two crucial rights.

The regulatory framework is crucial to monitor surrogacy because the practice of surrogacy has persisted in India without any legal framework. With the regulation and the provision of insurance for 36 months, the exploitation of surrogate mothers will be checked. The 228th report of the Law Commission had recommended that surrogacy should be regulated through suitable legislation and altruistic surrogacy should be the only procedure allowed.  Hence the Surrogacy (Regulation) Bill, 2020 is ethical, moral, and social legislation as it protects the reproductive rights of a surrogate mother as well as protects that of the child born through surrogacy[8].

CONCLUSION

Surrogacy has proved to be a blessing and medical marvel, which helped many childless, couples in the last few decades.[9]. Research done by the World Health Organization (WHO) estimated that in 2010, 48.5 million couples worldwide were unable to have a child of their own[10]. Thus, it provides couples with a viable choice to have a child, and hence, it should be regulated instead of being imposed a blanket ban by formulating strict laws. In a country like India, the social view must be considered because the social stigma relating to infertility is immense in society.


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[1] <http://lawcommissionofindia.nic.in/reports/report228.pdf>

[2] Geneticsandsociety.org. 2020. Complications of Surrogacy: The Case of Baby Manji | Centre For Genetics And Society. <https://www.geneticsandsociety.org/biopolitical-times/complications-surrogacy-case-baby-manji>

[3] The New Surrogacy Bill Protects The Interests Of All. <https://www.hindustantimes.com/analysis/the-new-surrogacy-bill-protects-the-interests-of-all/story F4DJy6L5QsfYk57npKVB3H.html>

[4] Ptinews.com. <http://www.ptinews.com/news/10759528_LS-takes-up-Surrogacy-bill.html>

[5] Bhalla, N., 2020. India’s Proposed Surrogacy Law Raises Trafficking Risk For Foreign Women – Expert. <https://in.reuters.com/article/india-women-surrogacy-idINKBN17L0I1>

[6] Nikkei Asian Review. 2020. ‘Wombs For Hire’ Mothers Become Pawns In Modi’s Culture War. <https://asia.nikkei.com/Spotlight/The-Big-Story/Wombs-for-hire-mothers-become-pawns-in-Modi-s-culture-war>

[7]PRS India. 2020. The Surrogacy (Regulation) Bill, 2019. <https://www.prsindia.org/billtrack/surrogacy-regulation-bill-2019>

[8]  Surrogacy Bill, 2020 Allows Willing Woman To Be Surrogate Mother; Widows, Divorcees Can Also Benefit ANI News <https://www.aninews.in/news/national/general-news/surrogacy-bill-2020-allows-willing-woman-to-be-surrogate-mother-widows-divorcees-can-also-benefit20200226205350>

[9] Ncbi.nlm.nih.gov. 2020. Home – PMC – NCBI. <https://www.ncbi.nlm.nih.gov/pmc/articles>

[10] The Leaflet. 2020. The Surrogacy Bill 2019: A Lost Opportunity for A Truly Beneficial Legislation. [online] Available at: <https://www.theleaflet.in/the-surrogacy-bill-2019-a-lost-opportunity-for-a-truly-beneficial-legislation/#>


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