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Key Takeaways

  • Surrogacy is a legal arrangement in which a woman undertakes to deliver/labor for another person or individuals who would become the baby's parent(s) after birth.
  • Gestational surrogacy is the only kind of surrogacy approved in India. It entails creating an embryo using IVF (in vitro fertilization) technology, which is then implanted in the surrogate.
  • The Indian Parliament recently enacted two landmark legislations, the Assisted Reproductive Technology (Regulation) Act and the Surrogacy (Regulation) Act, both of which would have a significant influence on the reproductive rights and health of Indian women.

Introduction

Surrogacy is a legal arrangement in which a woman undertakes to deliver/labor for another person or individuals who would become the baby's parent(s) after birth. Following the birth of the child, the biological mother transfers custody and guardianship to the intended parent or parents. Surrogacy involves several legal and medical procedures that must be followed. Surrogacy is derived from the Latin term "Surrogatus," which essentially denotes a substitute, i.e., a person assigned to perform in the place of another. Surrogacy and the rules that regulate it are not yet well established, but it is used as a feasible alternative to become parents by several urbane couples, albeit rarely.

Monetary remuneration might or might not be involved in surrogacy agreements. Commercial surrogacy is regarded as receiving payment for the arrangement. The legality and expense of surrogacy vary greatly between nations, which can lead to difficult multinational or interstate surrogacy arrangements. Families seeking a surrogacy arrangement in a nation where it is illegal may travel to a jurisdiction where it is legal. Surrogacy is permitted in various nations if no money is exchanged. Despite its growing importance, commercial surrogacy has mostly remained an unregulated sector in India for the past two decades. While some nations, such as the Russian Federation, Ukraine, and some states in the United States, allow commercial surrogacy, others, such as France, Sweden, Switzerland, Hungary, Ireland, and others, prohibit all kinds of surrogacy.

Surrogacy in the Indian Scenario

Until recent times, India had an approximated 2025 million infertile couples, making Assisted Reproductive Technology (ART) such as surrogacy a viable alternative. India legalized commercial surrogacy in 2002, and the enormous increase of surrogacy in India has resulted in the rapid establishment of various commercial businesses and firms claiming expertise in surrogacy legislation. Since its legality in 2002, the commercial surrogacy sector in India has grown to the point that U.N.backed research in July 2012 assessed the surrogacy market in India at $400 million per year, with over 3,000 fertility clinics across the country. The Indian Council for Medical Research issued rules for Assisted Reproductive Technology treatments in 2002, which were approved by the government in 2005.

Gestational surrogacy is the only kind of surrogacy approved in India. It entails creating an embryo using IVF (in vitro fertilization) technology, which is then implanted in the surrogate. Surrogacy in India is governed by either ICMR (Indian Council of Medical Research) guidelines or Supreme Court or High Court rulings. Surrogate mothers suffer because of this legislative vacuum, as they are unable to exercise any rights in court or before any other authority.

ICMR Guidelines

The Indian Council of Medical Research Guidelines on Art Clinics, 2005 were the first series of government accredited surrogacy protocols. While it was not written specifically for surrogacy, it does provide fundamental standards for ART clinics to follow while doing all surrogacy operations. After recognizing the necessity for legislation to govern clinics performing ART treatments and to define the parties' rights and duties, the Law Commission resolved to take Suo Moto action and addressed surrogacy in its 228th report. The Law Commission of India released its 228th report on Assisted Reproductive Technology processes, which discussed the significance and necessity of surrogacy, as well as the actions taken to govern surrogacy arrangements. The Law Commission made the following observations:

  • Surrogacy arrangements will remain to be governed by a contract between the parties, which will include all of the terms mandating surrogate mother's consent to carry child, consensus of her partner and other family members, medical treatments of assisted reproduction, remuneration of all expenses incurred for carrying child to full term, readiness to hand over the child born to the commissioning parent(s), and etc. Such a setup, however, should not be used for commercial purposes. A surrogacy contract must include life insurance coverage for the surrogate mother.
  • Because the link of love and affection with a kid is mostly derived through biological relationship, one of the intended parents should also be a donor.
  • A surrogacy agreement should provide financial assistance for the surrogate offspring in the event that the contracting couple or individual dies before the child is born, or if the intended parents split and no one wants to accept custody of the child.
  • A surrogacy contract must include life insurance coverage for the surrogate mother. Without the requirement for adoption or even a declaration of guardianship, legislation should recognize a surrogate kid as the lawful child of the commissioned parent(s).
  • The surrogate baby's birth certificate should only include the name(s) of the commissioning parent(s).
  • Surrogacy with a sex preference should be forbidden.
  • The donor's and surrogate mother's right to privacy should be safeguarded.

The guidelines in the report were abundant, aiming to exhaustively simplify and govern the provisions aimed at clarity, privacy, avoiding sexselective surrogacy, prioritizing the future and guaranteeing the legitimacy of the surrogate child, and supplying financial assistance for the surrogate mother and child in the case of future contingencies.

Assisted Reproductive Technology Bill, 2013

The Assisted Reproductive Technology Bill, 2013, has been pending for a long time and has yet to be introduced in the Indian Parliament. It would not permit commercial surrogacy in which money is exchanged for anything other than medical bills for the mother and kid. The measure has been heavily criticized since it will restrict couples who already have one child, expatriates, or Overseas Citizens of India (OCI), bearers as well as livein partners, homosexuals, and widows.

Surrogacy (Regulation) Bill, 2016, 2019

The Surrogacy (Regulation) Bill was first proposed in 2016. While it was cleared by the Lok Sabha on December 19, 2018, it was not debated on the Rajya Sabha floor. Following that, the Bill of 2016 was reintroduced in the Lok Sabha in the identical format as the Surrogacy (Regulation) Bill, 2019 and was approved on August 5, 2019. It advocated allowing only Indian heterosexual couples who had been married for at least five years and had infertility issues to obtain altruistic or unpaid surrogacy, thereby prohibiting commercial surrogacy. The 2016 bill expired because of the parliament session's sine die adjournment.

The Bill had multiple features laid down. It exclusively authorizes surrogacy for couples who were unable to conceive naturally.The treatment is not permitted if a woman has any other medical issue that might prohibit her from giving birth. The intended couple's 'near relative' must be the surrogate mother. The phrase "near relative" is not defined in the Bill. Certain offences are created under the Bill, including: (i) engaging in or marketing commercial surrogacy; (ii) manipulating the surrogate mother; and (iii) transferring or trafficking human embryos or gametes for surrogacy. These offences would result in a tenyear prison sentence and a fine of up to ten lakh rupees. The Bill outlaw’s commercial surrogacy and only authorises altruistic surrogacy, which means surrogacy is only permitted when there is no monetary remuneration.

Landmark Cases

Baby Manji Yamada v. Union of India [(2018) 13 SCC 518]

The Supreme Court addressed the custody rights of a newborn girl for a father who split from his wife during the gestation phase of the surrogacy, putting the baby's fate in doubt. Because she was neither Indian nor Japanese, the infant was not able to depart India for three months after her birth. The problem was settled once the Japanese government granted her a oneyear visa on humanitarian grounds. Following a Supreme Court directive, the Japanese government awarded the visa after the Indian government granted the infant a travel permitin September 2008.

In affirming the legitimacy of the Surrogacy Agreement, the Supreme Court ruled that the child's genetic father deserved custody rights, and the government was directed to grant the passport to infant Manji Yamada, who proceeded to Japan with her grandmother, who had approached the Apex Court.

Jan Balaz vs Municipality of Anand [AIR 2010 Guj 21]

The Gujarat High Court granted Indian citizenship to two twin twins fathered in Anand district through paid surrogacy by a German individual. The issue was that a German couple became parents to twins after entering into a surrogacy agreement with an Indian woman. The German government declined to grant citizenship to the newly born infants because state law did not recognize surrogacy as a path to parenting.

Jan Balaz, the biological father, then applied for Indian passports for the twins, but the request was refused since the children were not Indian nationals and hence could not qualify for a Passport under the Indian Passport Act. The Court concluded that because the infants were born in India to an Indian national surrogate mother, they were citizens of India under Section 3(1)(c)(ii) of the Citizenship Act. The Balaz twins were given the exit and entrance certificates that permitted them to leave India for Germany in May 2010. The parents agreed to adopt their children in Germany in accordance with German law.

Current Scenario

The Indian Parliament recently enacted two landmark legislations, the Assisted Reproductive Technology (Regulation) Act and the Surrogacy (Regulation) Act, both of which would have a significant influence on the reproductive rights and health of Indian women. Despite the fact that transnational surrogacy was outlawed in India in 2015, ART and domestic commercial surrogacy have thrived thanks to established networks of unvetted agents and private clinics. The new regulations claim to establish organizations such as new National and State ART and Surrogacy Boards, as well as a National ART and Surrogacy Registry, to assist the government on regulatory and policy issues. To enhance openness in such circumstances, the Registry would also keep a record of ART procedures performed across the country.

Any medical professional who breaches the Act is subject to imprisonment for as many as five years and a fine of up to 100,000 Indian rupees ($1,300). The charges are not bailable. If the same individual commits a future infraction, the practitioner's registration will be suspended for five years and reported to the competent government and the State Medical Council.

Conclusion

Legislative predisposition and sensitization are required to ensure a linear and consistent approach to controlling rules. Until far, the nonregulation of the sector in India has not materially hampered the procedure's appeal due to methodological excellence combined with relatively low execution costs. Nonetheless, exploitation is still widespread.Surrogacy has an evident legal position in India. Gestational Surrogacy is a legal form of surrogacy in India. India is one of the few remaining countries that allows commercial surrogacy. Commercial surrogacy, on the other hand, is permitted in India. This effectively means that, while commercial surrogacy is allowed in India, no specific legislation governs it.As it is now limited to heterosexual married couples of specified ages, the exclusion of older couples, single persons, couples in livein relationships, and the LGBTQ population jeopardizes equality before the law and the constitutional guarantee against discrimination. This must be addressed.


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