SURROGACY LAWS IN INDIA

ABSTRACT 

Surrogacy laws are something evolving all over the world somewhere swiftly and somewhere at a slower pace. Surrogacy serves both as a boon and a bane. Around the globe, people prefer Indian surrogates due to their affordability. All the expenses including fertilization, delivery of surrogate mother, tickets, and other charges of foreign parents in the Indian medical system make a sum that is approximately less than a third of the amount charged in developed nations like the UK, the US, etc. This trend was largely followed before the enactment of the new surrogacy laws in India. The statutes were introduced at a stage during which there was a great need for statutory provisions that would address the issue of commercial surrogacy. The legislation's main goals are to forbid any future abuse of surrogate mothers and the children they bear, as well as to stop the commercialization of surrogacy.

INTRODUCTION 

Surrogacy comes out as such a huge blessing for couples who due to infertility are unable to conceive their child. Surrogacy is like a good and selfless deed that makes a lot of difference to the benefitting couple, blessing them with parenthood. But there are always two sides to the coin and people are always ready to perceive things like a business and to detract from its major positive aspect. While talking about this, the term which comes before us is 'Commercial surrogacy'. 

Mainly two terms are there to classify surrogacy:

• Traditional Surrogacy

• Gestational Surrogacy

The major difference between the both is that in the former the child born out of surrogacy is genetically related to the surrogate mother and the male donor, while in the latter respective child is genetically related to the male and female donor and not to the surrogate mother. 

Commercial surrogacy directly affects the bodily autonomy, and dignity of a woman and also encourages child trafficking. Generally, the surrogate mother is paid for delivery charges and other medical expenses including insurance coverage, whilst in the case of commercial surrogacy further compensation is provided to the surrogate mother in the monetary form for her role. This has resulted in the total exploitation of both the surrogate mother and the child to whom she gives birth. This exaggerated the process of surrogacy in such a way that foreign couples who preferred Indian surrogate mothers were guided by the commercial firms formed all over the country for the sake of business. This all deteriorated the dignity of women. We are well aware of the poverty in India and poor women started renting their wombs for the sake of money which resulted in their exploitation. To deal with all these heinous acts the Indian government banned commercial surrogacy in 2015.

EVOLUTION OF SURROGACY LAWS IN INDIA AND THEIR VARIOUS ASPECTS 

Legislations related to every aspect should evolve with the changing needs of society. Various aspects in which surrogacy and reproduction laws have evolved in India along with their negative aspects are mentioned as follows:

• The Indian Council of Medical Research Guidelines, 2005: The National Guidelines for the Accreditation, Supervision, and Regulation of ART (Assisted Reproductive Technology) Clinics in India, which were first proposed in 2002, were accepted by the government in 2005. These were just advisory guidelines provided to these clinics as they provided surrogacy treatment in India.

• The Surrogacy Regulation Bill, 2019: According to this act, surrogacy is legal if it is used for the following reasons: 

  1.  intended partners with documented infertility;

  2. selfless causes;

  3. not just for financial gain;

  4. not to produce children for sex trafficking, selling, or many other types of abuse; and

  5. for any illness or disorder that has been specifically listed by legislation.

This act has made commercial surrogacy a crime punishable by a 10-year jail sentence as well as a penalty of equivalent to Rs. 10 lacs. Alienation, deprivation of custody, or abuse of the surrogate child is punishable by a ten-year prison sentence and a monetary penalty of equivalent to Rs. ten lakh. It also sets eligibility criteria for the couple seeking a surrogate child. This bill also proposes the significance of a "certificate of essentiality" and a "certificate of eligibility" obtained by the proper authority and must be presented by the prospective spouse.

• The Assisted Reproductive Technology Act, 2021: In India, ART (Assisted Reproductive Technology) has emerged as a popular medical vacation destination, and the number of health centers offering this therapy is steadily growing. This act provided the ART clinics that would offer and deliver the required commodities, which were previously lacking in India. This act has set up the conditions and criteria for the gamete donation and also a national registry to supervise its functioning. This act also enforces various rights of children born out of surrogacy. The statutes are constructed in an exclusive and heteronormative manner. Only infertile heterosexual married couples or single women who are widowed or divorced are eligible for ART; the LGBTQI+ community and unmarried partners are excluded. This contravenes both global norms and recent rulings by the Indian Supreme Court such as Navtej Singh Johar v. UOI, a significant judgment that decriminalized same-sex relationships among willing individuals and served as a turning point for the LGBTQI+ society.

• The Surrogacy (Regulation) Act, 2021: Under this act, altruistic surrogacy is permitted while commercial surrogacy is regarded as illegal. It provides eligibility criteria for the surrogate mother and the intending couple. The intending couple should be in the age range 26 to 55 years for men and 25 to 50 years for women. According to it, the surrogate mother should be of age 35-45 years and she can only be a surrogate once in her lifetime along with it she should be a close relative of the intending couple. She should be doing this activity while being aware of its consequences. National Assisted Reproductive Technology was established to register the clinics aiding all this. Registration of all such surrogacy treatment clinics is a must along with its conditions and criteria for registration are also provided under this act. This act is restricted to certain sects of people. Surrogacy could be availed only by the: 

  • married couples with a certificate of infertility

  • widows

  • divorcees of age ranging between 35-45 year

It is very clear that unmarried couples in live-in relationships, single people, and people belonging to the LGBTQI+ society can avail of a child through the process of surrogacy. Such prohibitions also violate the right to equality and the right to life provided under Article 14 and Article 21 of the Indian Constitution respectively. The condition is such that due to various reasons a lot of times it becomes difficult for a couple to conceive a child which leaves them with no option, even not that of surrogacy. Gestational surrogacy is talked about in this act and while it excludes traditional surrogacy. This has encouraged a lot of debates all over the nation. 

CONCLUSION 

Dealing with the concept of surrogacy is not as easy as it seems. It is a complex task and to deal with it one has to keep in mind various eligibility criteria and procedures involving the whole process. All over the world, some nations have laws related to surrogacy almost similar to India while some don't have proper regulations related to the concept of surrogacy. In some nations like Spain surrogacy is prohibited completely. A Lot of legal issues may arise if any ignorance is held in the procedure of surrogacy. It is a must to keep in mind the consequences that surrogate mothers have to deal with afterward as it can lead to various physical, mental, or health issues. It is important to take care of the rights born out of surrogacy and that of a surrogate mother. It is also important to review the various provisions of the legislation dealing with surrogacy as it involves various legal complications and procedures dealing with surrogacy might be too costly which makes it difficult for a poor person to afford it. It is essential to consider the behalf of the prohibited persons while formulating the statutes related to surrogacy. Even a complete ban on commercial surrogacy is required to be reviewed which is affecting surrogate mothers.

AUTHOR - ABJOT KAUR