Every woman wants to experience motherhood because it is the finest kind of love there is. In India, having a family is usually idealised and motherhood is given the biggest priority. A family is always thought to be complete with offspring, and lineage continuity is revered. However, some couples have infertility or other issues that prevent them from having children, which causes tension and conflict within the family. These couples have the opportunity to become parents through surrogacy, giving them the gift of life.
The Universal declaration on Human Rights also recognizes Right to family as a basic human right of an Individual. Thus making surrogacy a choice for individuals who cannot conceive to have a family.
Surrogacy is defined as an arrangement by which a woman gives birth to a baby on behalf of someone who is physically unable to have babies themselves, and then gives the baby to that person thereby surrending her rights on the baby. In gestational surrogacy, an embryo is produced by in vitro fertilisation using the intended parents’ egg and sperm (IVF). This embryo is then implanted into the surrogate.
In 1978, the first test tube baby was born through Artificial Reproductive Technology. Ever since then the market for surrogacy has thoroughly expanded. However with the expansion, the commercialisation of surrogacy also became a usual phenomenon. Commercial surrogacy as defined under the Surrogacy (Regulations) Act 2021 (hereafter Surrogacy Act) Section 2(g) is ““commercial surrogacy” means commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother”.
The other kind of surrogacy is Altruistic surrogacy defined under the Surrogacy Act Section 2(b) is a surrogacy that involves no charges, renumeration or monetary incentives other than the medical or any prescribed expenses by the surrogate mother. This form of surrogacy is out of the good will of the surrogate mother and not for money.
The Confederation of Indian Industry estimated commercial surrogacy to be a 2 billion dollar industry by 2012, and the Indian Council of Medical Research, before recent regulation, expected those numbers to rise to 6 billion dollars by 2018. Despite its increasing importance, commercial surrogacy was largely an unregulated industry in India for the past 2 decades.
To curb commercial surrogacy in India the government brought The Surrogacy Regulations Act of 2021 that outlawed commercial surrogacy thus only allowing altruistic surrogacy as a means for infertile couples to have a family.
With the ban India has joined several other countries like Canada, Denmark, New Zealand, the UK and Australia, where commercial surrogacy is banned and there are severe punishments for the violation of the same. Countries like Bulgaria, France, Germany, Italy, Portugal and Spain prohibit all forms of surrogacy.
Understanding the provisions of the law
- The new law bans commercial surrogacy and allows only altruistic forms of surrogacy.
- It confines the limit to only widowed, divorced women between the ages of 35- 45 years of age to opt for surrogacy.
- A surrogate mother must be genetically related to the intending couple who are opting for the surrogacy procedure.
- It mandates the registration of all surrogacy clinics in India and penalizes practice of surrogacy without registration.
- It also makes it necessary that the intending couple only opt for surrogacy when there is any medical necessity.
- It requires the surrogate mother to be a married woman between the age of 25-35 further providing that no woman can be a surrogate more than once in her lifetime.
- It lays down a proper procedure for the surrogacy, reimbursement to the surrogate mother for only medical expenses and allows only Indian couples to go through the process of surrogacy.
The National Assisted Reproductive Technology and Surrogacy Board, State Assisted Reproductive Technology and Surrogacy Boards, and the appointment of appropriate authorities are the primary goals of the Act in terms of regulating the act of surrogacy as well as any issues that may arise in connection with or incident to it.
The present ban on commercial surrogacy poses a question on the right to freedom of trade and occupation vis-a-vis the exploitation of surrogate mothers. The ban was put forth to saveguard all the surrogate mothers from exploitation. Womens all over the country were paid less and saw surrogacy as an occupation. They had to live in terrible conditions, with minimal amenities and facilities and sometimes even the intending couple would leave the surrogate mother thus rendering her helpless. Foreigners would come to India and thereafter the implantation if there was any disability found with the child would leave it in India. This led to a lot of conflict in determining the child’s nationality as stated by the law commission and thus hampered the child’s welfare.
The landmark case that recognized Commercial surrogacy was Baby Manji Yamada v. Union of India,in which a Japanese couple, Dr. Ikufumi Yamada and his wife, wanted a child and contracted a surrogate mother from India in Anand, the state of Gujarat, the birthplace of the surrogacy industry. The father insisted on having custody of the child despite the couple’s marital problems. Indian law prohibits a single parent from adopting a girl kid. He sent his mother in his place, and the Supreme Court received a petition. Because there were no rules limiting the impact of surrogacy, the government appeared helpless in such a situation.
Due to all such problems the government banned surrogacy for Foreigners in 2015. However the domestic market still flooded and around 12000 babies as estimated were born through surrogacy every year in India. With the commercialization of surrogacy and lack of effective laws on the pertaining matter it was difficult to control the black market of surrogacy. Thus the government finally after a lot of contemplation and advice brought The Surrogacy (Regulation) Act of 2021 thereby banning commercial surrogacy completely in India.
The question that stays afloat is with the ban of commercial surrogacy all the women who acted as surrogate mothers and it was a source of income for them now stands annulled. People from the lower strata of the society, illiterates for whom it was a means of livelihood has now become a problem. Now only a woman who is genetically linked to the intending couple can act as a surrogate mother. This narrows the availability of surrogate mothers for the couple who intend to become parents. Moreover, it excavates the chances of familial disputes in a family if there is any tacit compulsion to act as a surrogate.
However, when we look at the government’s approach, allowing only altruistic means of surrogacy will ensure that there is no commercialisation of the womb of a woman. In this method the woman will be given all the medical expenses and be remunerated for any other prescribed expense by the couple and it will be out of will of the surrogate mother and will also ensure that no child trafficking is done as the surrogate will be related genetically to the intending couple.
The ban is put forth to stop the commodification of the body of the woman and that of the child. Commodification refers to making something available for sale and purchase in the market, or treating something like a commodity. The argument is thus that commercial surrogacy treats a child as a commodity who is for sale and that the human body as well as a child cannot be treated as a commodity under the law.
The Surrogacy Regulations Act 2021 looks like a promising legislation to curb unethical commercial surrogacy but there still lies lacunas in the law. The law does not provide right to homosexual couples to conceive a child through surrogacy or even single unmarried woman. This exclusion as stated is within the lines of the morals or standard of the Hindu society.
The new law on Surrogacy paves a way for supporting only surrogacy out of will of the Surrogate mother and not promoting any form of commercialisation of the womb of the woman. The ban on commercial surrogacy and further eligibilities specifies only a specific set of people to be eligible for the procedure of surrogacy thus excluding other sections of the society i.e., members of the trans community, single unmarried women, and homosexual couples. Further the ban poses a question to the autonomy of the woman on her body and her freedom to trade and occupation. Nevertheless, the Act proposes to curb the unethical practice of commercial surrogacy thus safeguarding the rights of the womens who were exploited, paid less for their service and even rendered helpless with the child. However, there are still hurdles in the way of the legislation to make it an absolute champ and with further amendments and proposals they might be rectified. The legislation further provides for a new era of surrogacy thus regulating the laws and moving from the business dimension to the path of altruism in the field of surrogacy.
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ARTICLE WRITTEN BY ADITI PRIYADARSHI