Author: Ritesh S. Chavan
Jitendra Chauhan College of Law
The Latin word “surrogatus,” which means “assigned to act in the place of,” is the source of the English word “surrogate.” In the well-known practice of surrogacy, a woman consents to become pregnant with the intention of carrying the child to term and giving birth to it. She will, however, give the child to the contracted party and not raise it. ‘Chori chori Chupke Chupke’, movie can be the best example to understand this concept in better manner.
Commercial surrogacy, sometimes known as the “Rent a Womb” practice, was legalized in India in 2002. India became “the hub of surrogacy” as a result of this policy, which was made to boost medical tourism there. According to the CII research from 2012, India’s surrogacy market was worth $2 billion annually. And it was estimated that across the nation, more than 3,000 fertility clinics were involved in this. The unregulated business of surrogacy raised concerns like unethical practices, due to it the middlemen and commercial agencies profited most, exploitation of surrogate mothers, abandonment of children born out of surrogacy, rackets like organ trade, embryo import, etc.
In the case of K.Kalaiselvi vs. Chennai Port Trust (2013), the Apex Court argued that in some circumstances, surrogacy is the only alternative accessible for parents who want to have a child that is biologically related to them (2013).
Types of Surrogacy:-
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Traditional |
Gestational |
Altruistic |
Commercial |
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· Also · Surrogate · Give |
· Also · Biological · Only |
· Now · Commisioning · No |
· The · Couple · As |
What does the Surrogacy (Regulations) Act,2021 mean?
About: The Surrogacy (Regulation) Bill was introduced in the Parliament in November 2016 and was approved during the winter session of 2021. It defines “surrogacy” as a procedure where a woman agrees to carry a child for another couple and to give them up after birth. The mandate of this act is to govern the surrogacy sector of the nation’s thriving infertility industry.
Key Provisions :-
- It only permits the “Altruistic Surrogacy”.
- Only a married couple may choose surrogacy under the surrogacy Act, and only for medical reasons. The law specifies that a married Indian “man and woman” constitutes a couple. Additionally, it specifies age requirements, with the woman’s range being 23 to 50 years and the man’s range being 26 to 55 years.
- Ineligibility criteria for Surrogate Couple: Couples with children of their own are ineligible for surrogacy. Despite the fact that single women are permitted by law to use surrogacy, she must be between the ages of 35 and 45, a widow or a divorcee. However, single guys are ineligible.
- Who is eligible as Surrogate Mother: A surrogate mother can only be a close relative of the pair who can give a medical fitness certification. She must have been married, have a child of her own, and be between the ages of 25 and 35. She can only be a surrogate mother once.
- It creates a national board to lay down and implement a code of conduct for people working at IVF clinics.
- It intends to make genetic testing of the embryo mandatory before implantation for the benefit of the child born through ART.
- It also seeks to streamline the cryo-preservation processes for sperm, oocytes and embryos.
- It also proposes to constitute a national registry and registration authority to maintain a central database and assist the national board in its functioning.
- Offences under the Act includes commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc. These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakh.
Rights of Surrogate Mother and issues related to it :-
- What parental rights does a surrogate have?
The surrogate is not regarded as the legal mother in India. According to the ICMR Guidelines from 2005, a surrogate mother cannot have any genetic ties to the kid. She receives legal and psychological counselling explaining her lack of parental rights. The gestational surrogacy contract specifies her duties and responsibilities to the intended parents and the child. They are also presumed to be the legitimate child of the intended parent(s).
- Given that the surrogate mother is a widow and the sperm comes from the intended father, who is the biological father of the surrogacy child according to Indian law?
Making the decision to use donor sperm or eggs is not prohibited by Indian law. If the intended father and the child are biologically related, the intended father alone would be the child’s legal father, as long as the child is not also biologically related to the surrogate mother.
- There is no requirement to make a court application for pre-birth order or post-birth order in India.
- If the surrogate mother changed her mind upon birth and refused to hand over the child to intended parents then the legal position under Indian law will be as per the surrogacy contract. The aforementioned contract can therefore serve as the foundation for legal action against the surrogate mother, and the ICMR Guidelines, which govern surrogacy, also only recognize the intended parents as the true parents.
- Does the child have the right to know the identity of the surrogate mother?
As per the prevalent ICMR guidelines, a child born through ART has a right to seek information about his genetic parent/surrogate mother on reaching 18 years of age. But information relating to the name and address (the personal identity of the gamete donor or the surrogate ) is excluded from it.
Conclusion :-
As per the study conducted by the Centre for Social Research, The clinic/hospital authorities claim that in case the commissioning parents refuse to accept the child or the pregnancy is aborted due to some reasons, the surrogate mother is often paid half of the amount what she was supposed to get under normal circumstances (56% of respondents in Delhi and 36% of respondents in Mumbai).It has been found out on further probe that the surrogate mother receives some nominal fees in few clinics/centres/agencies for the pregnancy which is around one-fourth of the total promised money or even below that.
The payouts in the event that the surrogate mothers were carrying twins are also unclear. Despite the fact that the payout for twins should logically be twice, in this situation, she has
only received an additional 1 to 1.5 lakh rupees. As a result, it is not a major gain for the surrogate mother.
Source : Centre for Social Research
Hence, Legislators in the opposition claimed that the Center’s prohibition on commercial surrogacy was evidence that it was “out of touch with ground reality.” The Opposition expressed its opinion that the Bill restricted the rights of female surrogates under the guise of reducing exploitation during deliberations of the Bill in Parliament.
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