Surrogacy vis-à-vis Commercial Surrogacy In India


Surrogacy, as a generic term, is a legal arrangement between a woman, also known as the surrogate, and the intended parents who are willing to have a child. In modern times, this arrangement has become common and acceptable in society. Many people opt for surrogacy if the mother or the woman who intends on having a child cannot conceive one for a variety of medical or personal reasons. Having a baby is likely a threat to the life of a mother. Surrogacy is a blessing for parents or people who intend on having a baby but are unable to, which makes it even more important to have proper regulations on this matter. Surrogacy is legal in India in the form of Gestational Surrogacy.

Types of surrogacy in India

There are two types of surrogacy that are in practice in India. They are:

  1. Surrogacy in the traditional sense – Traditionally, the eggs of the surrogate mother are used. Here, egg donation is not necessary since the egg of the surrogate mother is used. The intrauterine insemination method is used in traditional surrogacy. It is a simple method where the surrogate need not go through many fertility treatments. The intended mother need not take any treatment or undergo the egg retrieval process since her eggs are never used.
  2. Gestational Surrogacy – In this type, an egg donor is required to create the embryo that the surrogate mother would carry. Here, the In Vitro Fertilisation process is used. The embryo is created using the eggs of the intending mother and the sperm of the father, which then the surrogate carries. Surrogates usually prefer this type of surrogacy since there is no emotional connection, i.e., she is not the biological mother of the child. This type of surrogacy is costlier since both the women need to go through different fertility treatments as well as egg retrievals.

What is Commercial Surrogacy?

In commercial surrogacy, the intended parents’ female egg and husband sperm is used to create an embryo through in vitro fertilization (IVF). This embryo is then implanted into the surrogate mother for pregnancy. Commercial surrogacy involves financially compensating the surrogate mother for this procedure.

Hereinbelow I will be answering some questions related to surrogacy in India. The questions are as follows:

  1. What are the institutions that make sure that the law on surrogacy is being respected?

In the year 2002, the Indian Council for Medical Research indicated surrogacy guidelines, that had been approved by the government in 2005, regulating Assisted Reproductive Technology (ART) procedures. The Law Commission of India submitted the 228th report on ART procedures discussing the importance and need for surrogacy, and also the steps are taken to control surrogacy arrangements

In India, the law governing surrogacy is the Assisted Reproductive Technology (ART) Regulation Act 2021. However, there are various institutions in India that work to ensure that surrogacy arrangements follow ethical and legal guidelines. The Indian Council of Medical Research (ICMR) is a key institution that provides guidelines and regulations for assisted reproductive technology (ART) procedures, including surrogacy.

In addition to this, the ART clinics that provide surrogacy services must be registered with the ICMR and follow its guidelines. The National Accreditation Board for Hospitals and Healthcare Providers (NABH) also sets standards for ART clinics and conducts inspections to ensure compliance.

The Judicial system of India also play a role in enforcing surrogacy laws and resolving disputes that may arise in surrogacy arrangements. In recent years, several cases have been brought before the courts involving surrogacy, and the courts have issued rulings to clarify the legal status of surrogacy arrangements.

In summary, while there is no specific agency responsible for enforcing surrogacy laws in India, the ICMR, NABH, and courts all play important roles in ensuring that surrogacy arrangements are carried out in accordance with ethical and legal guidelines.

  1. India has banned commercial surrogacy and regulated only altruistic surrogacy due to which some human rights have been violated, so what are they and how they are violated ?

Due to the lack of legislation, the practice of commercial surrogacy is currently unregulated in India. The lack of a legal framework leaves surrogates vulnerable to numerous forms of exploitations and health hazards. After facing criticism for its previous bills on regulating surrogacy, the government of India has given its approval to a new Surrogacy (Regulation) Bill, 2020 (“the Bill”) to fill the legal void. While the Bill is a definite improvement upon its predecessors, it still fails to uphold women’s rights to livelihood and to reproductive autonomy and violates the right of LGBT couples to both equality and parenthood. Hereinbelow I have mentioned some of the human rights has been violated due to this ban:

Right to Livelihood

Unlike its 2019 version of surrogacy bill, which only permitted “genetic relatives” of the intending couple to serve as a surrogate, the Bill allows “any willing woman” to be a surrogate so long as the concerned surrogacy is “altruistic” (with no charges, remuneration, or monetary incentives) and not commercial. The intent behind the Bill’s blanket ban on commercial surrogacy is to safeguard surrogates from exploitation. However, such a ban would rob underprivileged women of the opportunity to earn a livelihood by way of serving as surrogates.

In India, women have fewer economic opportunities, which predisposes them towards poverty. In this light, commercial surrogacy becomes an effective tool for self-sustenance. The Supreme Court of India inOlga Tellis v. Bombay Municipal Corporation held that the right to livelihood is an integral part of the right to life guaranteed under Article 21 of the Indian Constitution. The Court reasoned that “the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation.” Thus, by putting a complete ban on commercial surrogacy, the Indian government has potentially violated Article 21 rights of the many women who are dependent upon surrogacy to pull themselves and their families out of poverty.

Right to Privacy, Reproductive Autonomy, and Bodily Integrity

Moreover, the Indian government’s blanket ban on commercial surrogacy would also have an adverse bearing upon the growing ambit of women’s rights jurisprudence in India. In a 2009 decision, Suchita Srivastava v. Chandigarh Administration, “the Supreme Court declared that the right to make reproductive choices falls under Article 21 of the Constitution and includes entitlement to carry out a pregnancy to its full term, to give birth, and to raise a child”.

In K.S. Puttaswamy v. Union of India, “the Supreme Court’s constitutional bench held that the right to privacy, which emanates from various provisions of the Constitution, protects intimate personal choices, such as those governing reproduction”. A complete ban on commercial surrogacy would result in denying women the choice to use their reproductive agency for monetary gain. This denial of choice potentially violates the constitutionally guaranteed rights to privacy, reproductive autonomy, and bodily integrity.

Not only does the Bill violate rights guaranteed under the Indian Constitution (at the national level), but it also violates those guaranteed under various international conventions that are binding on India. Article 12 of the Universal Declaration of Human Rights (“UDHR”) and Article 17 of the International Covenant on Civil and Political Rights (“ICCPR”) prohibit State’s unreasonable interference upon women’s privacy, and the ICCPR Committee has interpreted the right to privacy to include women’s bodily integrity and autonomy. These rights stand violated by the Bill’s blanket ban on commercial surrogacy.

Several countries in the global North have a blanket ban on commercial surrogacy. However, the same is not a welcome move in the Indian scenario for three main reasons.

  1. Firstly, there is a genuine apprehension that putting a complete ban on commercial surrogacy would result in the practice shifting to behind closed doors. Once the illegal market for commercial surrogacy spreads, underprivileged women will be forced into the same due to the dearth of other income opportunities. This would not only expose surrogates to a plethora of health hazards but may also result in a massive problem of child abandonment due to the lack of legal obligations upon the intending couples.
  2. Secondly, this Bill would leave potential surrogates open to exploitation while participating in underground commercial surrogacy, and they would likely find it impossible to get justice as the law would treat them as accomplices facilitating an unlawful activity.
  3. Lastly, banning commercial surrogacy would add to India’s grave gender disparity. As previously mentioned, women, especially those who are underprivileged, face crippling disadvantages as they try to earn a living in India’s heavily patriarchal society. In such a dire scenario, commercial surrogacy is one of the very few earning opportunities where women do not have to compete with men, and banning it would only enlarge the economic dimensions of gender inequality in India.

Right to Compensation

In its 102nd report, the Parliamentary Standing Committee on Health and Family Welfare recommended against banning commercial surrogacy, stating that such a prohibition is only based on moralistic assumptions and not on any scientific criteria. Instead of only allowing altruistic surrogacy, the Committee recommended that a compensatory approach towards surrogacy be adopted for the benefit of the surrogate. Such an approach would ensure that surrogates are adequately compensated, not only for their labour but also for the expenses incurred during pregnancy. However, these recommendations have not been incorporated into the Bill.

  1. During the process of surrogacy if there’s any problem such as miscarriage, what is the legal procedure ?

In India, surrogacy is regulated by the Surrogacy (Regulation) Act 2021. However, the legal procedures for dealing with a miscarriage during surrogacy would depend on the terms of the surrogacy agreement signed between the intended parents and the surrogate.

Typically, surrogacy agreements specify the rights and responsibilities of both parties in the event of a miscarriage or other pregnancy-related complications. These agreements may provide for compensation or other remedies in case of a miscarriage or may require the surrogate to continue with the pregnancy until the child is born.

If the surrogate mother and intended parents cannot come to a mutually agreeable solution in the event of a miscarriage, they may need to seek legal recourse. The legal options available would depend on the terms of the surrogacy agreement, as well as the specific circumstances of the miscarriage.

It is always recommended to consult with a lawyer having expertise in surrogacy law to understand the legal options available in case of a miscarriage during the surrogacy process.

  1. If during the process of surrogacy the intended parents don’t want to follow with the process, what is the legal procedure ?

It is well settled guideline by the ICMR that surrogacy programs will continue to be governed by contract and agreement amongst the involving parties, So, If due to any reason the intended parents do not wish to proceed with the surrogacy process, the legal procedures in India would depend on the terms of the surrogacy agreement signed between the intended parents and the surrogate.

Typically, surrogacy agreements specify the rights and responsibilities of both parties in case either party wishes to terminate the surrogacy arrangement. These agreements may provide for compensation or other remedies in the event of termination of the surrogacy agreement by either party.

If the intended parents wish to terminate the surrogacy agreement, they should first inform the surrogate mother and the surrogacy clinic or agency where the surrogacy arrangement was made. The surrogacy clinic or agency may also have specific procedures in place for terminating a surrogacy agreement.

If the intended parents and surrogate mother cannot come to a mutually agreeable solution, they may need to seek legal recourse. The legal options available would depend on the terms of the surrogacy agreement, as well as the specific circumstances of the termination.

  1. What is the need for international regulations and laws to regulate surrogacy arrangements? (especially to avoid situations like surrogacy arrangements at the foreign country such as the US? How could be this done ?

Firstly we should know about what this arrangement is, surrogacy arrangement is concept when a woman becomes pregnant and delivers an infant for a commissioning parent or parents, who are unable to carry a pregnancy; these arrangements are also known as contract pregnancies. A gestational surrogacy arrangement is one where the surrogate achieves pregnancy through artificial reproduction technologies (ART) in the form of in vitro fertilization (IVF); embryos are created with gametes provided by the commissioning parent/s and transferred to the uterus of the surrogate in order to achieve a pregnancy and ultimately deliver a healthy infant.

A  type of surrogacy i.e. Global surrogacy arrangement is a contract pregnancy where the commissioning parents enter into a surrogacy arrangement across international borders, with a woman located in another country; these arrangements are commercial ones, in which there is a financial transaction and are almost always gestational surrogacy arrangements. Increasingly, Western individuals or couples enter into surrogacy arrangements with women from lower-resource nations such as India or Thailand not only because surrogacy arrangements are less costly than elsewhere but also because the laws may be less restrictive than in their home countries, where commercial surrogacy may be either highly restricted or illegal.

The major arguments against global surrogacy arrangements are in the three broad categories: welfare, commodification, and exploitation.

Unfortunately, due to lack of international regulation or agreement regarding global surrogacy arrangements, a few children born from global surrogacy contracts have been subject to not having any legal parents and/or statelessness, which happened due to conflicting laws regarding parentage and citizenship. Conflict of law is an issue in global surrogacy cases and can cause statelessness for the child

There is an ongoing debate about the need for international regulations and laws to regulate surrogacy arrangements. The lack of clear legal guidelines and regulations can lead to situations where intended parents and surrogates find themselves in legal disputes, and where the rights of the child born through surrogacy are not protected.

One of the challenges with regulating surrogacy arrangements at an international level is that different countries have different laws and regulations regarding surrogacy. Some countries allow commercial surrogacy, while others only allow altruistic surrogacy. Additionally, the legal status of surrogacy agreements can also vary widely from one country to another.

One approach that has been suggested to regulate international surrogacy arrangements is the creation of an international convention on surrogacy. Such a convention would set out guidelines and regulations for surrogacy arrangements, with the aim of protecting the rights of all parties involved, including the child born through surrogacy.

However, creating an international convention on surrogacy would require the cooperation of many different countries with different legal and cultural traditions. It would also require addressing ethical and social issues such as the exploitation of women and children, and the commodification of reproduction.

In the absence of an international convention on surrogacy, some countries have taken unilateral steps to regulate surrogacy, such as banning their citizens from engaging in surrogacy arrangements abroad or limiting access to surrogacy services to their own citizens. However, such approaches can lead to unintended consequences, such as driving surrogacy arrangements underground or limiting access to surrogacy services for those who need them.

  1. According to some scholars, the ban of commercial surrogacy has pushed surrogate mothers from India to travel to other countries to become surrogate mothers, therefore, their precarity increases with crossing borders. Therefore, without any international regulations, or connections with the broader ART industry, the only effect of the ban has been to push the surrogacy industry elsewhere and absolve the government from paying attention to critical questions of sound globalization, reproductive justice and international law. Did you know this is happening? or do you think it is true or not, why ?

I don’t think it’s true or happening in India because in the case of Global surrogacy arrangement Western individuals or couples enter into surrogacy arrangements with women from lower-resource nations such as India or Thailand not only because surrogacy arrangements are less costly than elsewhere and the rate of successful surrogacy are also is high number in India as it liew somewhere between 70% to 80% but also because the laws may be less restrictive than in their home countries, where commercial surrogacy may be either highly restricted or illegal. Despite the fact that commercial surrogacy is banned instead of calling it banned rather we can call it unregulated in India as there is no legislative framework for the commercial surrogacy.

In support to this statement I will be sharing some case laws, which are as follows:

  1. Baby Manjhi Yamada v. Union of India (2008)

Here, in this case, a Japanese couple came to India to have a baby through surrogacy. Now, they hired a woman from Gujrat where this practice of surrogate mother was prominent and hence the woman was the surrogate mother. Some marital problems arose between the couples and they got divorced. Now, the father of the child wanted custody of the child who was a girl. In India, a single father cannot adopt a girl child. In this case, the Supreme Court gave the rights to the grandmother of the child. The Supreme Court realized the need for regulated law for surrogacy.

  1. Jan Balaz v. Anand Municipality (2008)

In this case, a German couple, the intended parents hired a surrogate mother who gave birth to twins. This German couple worked in the United Kingdom, and their twins now required an Indian passport to travel. The passport officials refused to issue passports to the twins since they did not have citizenship because the procedure was being litigated in the court. There were no laws regarding surrogacy in Germany. The children were granted departure permission i.e., permission for them to leave the country, by the Supreme Court, and German authorities allowed them to adopt the children and fight for their rights.

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