Abstract
On 25th of December, 2021, the Surrogacy Regulation Bill was signed by the President of India and thereafter on 25th January, 2022, the Surrogacy Regulation Act, 2021 came into effect. This led to major discussions taking place in the country and experts talking about the positive and negative aspects of the Act. This is one of the first major codified laws made specially to regulate Surrogacy in India. The codification was especially important for India because India is known as the Surrogacy capital of the world. It was in fact ironic that India did not have any major law relating to surrogacy until now. This paper also endeavours to analyze the whole concept of surrogacy with regard to India, it tries to delve into the question that how India became the surrogacy capital of the world. The paper then explains the history and evolution of surrogacy laws in India and how the country was able to reach the Surrogacy Regulation Act, 2021.
What Is Meaning Of Surrogacy?
The term surrogacy has been derived from the Latin term “Surrogatus”. The meaning of Surrogatus is a substitute, more precisely a person appointed to act in place of another. In this context, surrogacy is the process of being a substitute mother, where a woman acts as a substitute mother for another woman. According to the Black’s Law Dictionary, surrogacy means “the process of carrying and delivering a child for another person.” It is an assisted reproduction or a third-party reproductive practice. As per the American Law Reports, Surrogacy is “a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights subsequent to the child’s birth.” In the case of K. Kalaiselvi v. Chennai Port Trust, the court stated, “Surrogacy is a well-known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child’s genetic mother or she may be a gestational carrier, carry the pregnancy to deliver after having been implanted with an embryo.”
The concept of surrogacy is not new. It has been prevalent in the world since ages. As a matter of fact, the concept and the process of surrogacy have become more developed and more advanced with time. Basically, in surrogacy, a woman conceives a child in her womb, only to give up the child to another woman, i.e., she gives birth to the child and as soon as that happens, she has to relinquish all the rights of that child. This whole process is known as ‘surrogacy’ and the mother who conceives the child is known as the ‘surrogate mother’.
There can be many reasons or circumstances under which the process of surrogacy is opted. While medical circumstances form the most part of the reasons, there are also other causes as well.
- Medical reasons are the most prevalent causes that compel anyone to opt for surrogacy. There can be some pre-existing health conditions due to which natural pregnancy becomes impossible or life-threatening.
- Infertility also is a prime reason. While there are other options as well for infertile couples, surrogacy also remains an option as well.
- Apart from the medical reasons, there is another reason where the couples are same-sex couples, or a single parent, mother or father, wanting a child, but are not able to conceive due to apparent reasons, surrogacy remains a viable option for them.
Surrogate pregnancy is also known as ‘Contract pregnancy’ because of the very nature of this method of pregnancy. In this, the parents or the single parent and the surrogate mother enter into a contract where they jointly agree on certain terms and conditions related to the whole procedure. Generally, it is accepted that the surrogate mother will conceive and carry the child in her womb and give birth to it, after which the surrogate mother will be required to hand over the child along with all the rights of the child to the parents or the single parent. The parties can make amendments to the general conditions according to their circumstances, and it may also differ from case to case.
Types of Surrogacies
There are basically two types of surrogacy.
• Traditional Surrogacy
As the name suggests, it is such a type of surrogacy in which the egg which is used to conceive the child is that of the surrogate mother and the semen is of the intended father of the couple. Therefore, in the traditional method of surrogacy, the child is actually biologically related to the surrogate mother and not to the intended mother. This kind of method was used when the technologies were not as advanced in this area as it is today, and is therefore not very much in use today. But even today, it is used where the intended mother is not able to produce her own eggs.
• Gestational Surrogacy
Gestational Surrogacy is the method which is used by using the egg of the intended mother and the semen of the intended father, after which an embryo is created in the laboratory, which is then transferred into and conceived in the womb of the surrogate mother. The surrogate mother, in such type of surrogacy, is known as a ‘Gestational Carrier’. In this type of method, the child is in no biological manner related to the surrogate mother and is only biologically related to the intended parents.
Benefits, Exploitation Of Surrogacy And Regulation By Indian Contract Act, 1872
Benefits Of Surrogacy
Surrogacy is definitely a boon for those parents who want to have a child but are not able to conceive one naturally due to one or the other reason. It is indeed a blessing from science.
- With advancing technologies, the parents are benefitted from gestational surrogacy, where the intended parents have a biological connection with their child. This is not the case in traditional surrogacy.
- The child is actually free from any health risk because the law orders thorough screening or health checks of the surrogate mother. This comes as beneficial for both the child as well as the surrogate mother. This provision was actually not from the initial period, as the laws progressed, this provision was also added.
- Another benefit is the money factor that is associated with surrogacy. The surrogate mother is monetarily aided in every step of the pregnancy and is also, in most cases, in return paid for her services.
Therefore, due to the above-mentioned reasons, surrogacy becomes beneficial for all the parties that are involved in this.
Exploitation Of Surrogacy
But, like every coin has two sides, surrogacy also has also been exploited in recent times. It has mostly been exploited because of ‘commercial surrogacy’, or informally, ‘rent a womb’. Commercial surrogacy is the kind of surrogacy where the surrogate mother is paid for her services. Commercial surrogacy had been legalised in India in the year 2002, the reason behind it being the government’s efforts to increase medical tourism. Due to this, there was a rapid increase in the number of surrogacies taking place in the country. So much so, that India was known as the Surrogate Capital of the world or the Surrogacy Hub of the world. According to many researchers, India’s business of surrogacy tourism is a whopping $2.3 billion per annum. There are reasons why people from foreign countries used to consider India as their best option for indulging in surrogacy. Firstly, the cost of a surrogate mother, or for that matter, the cost of the whole procedure is quite low and inexpensive in India as compared to other countries. Secondly, there were middlemen involved who helped and guided the intended parents with low-cost surrogacy, which made it easy for the foreign intended parents with the whole procedure. Thirdly, and most importantly, there were no firm laws on the regulation of surrogacy in India. Commercial Surrogacy was merely legalised for the purpose of cash inflow in the country, but the legislators were not able to foresee the consequences of the same.
Therefore, as a result, more and more foreigners started coming to India which in turn exploited the concept of surrogacy in India. Of all the people and parties involved in the contract, the surrogate mother was the one who used to get the most exploited. The reason behind this was that any woman who entered into a contract of being a surrogate mother generally belonged to the poor section or the marginalised section of society. They used to give consent, keeping in mind only the money factor involved with it. Therefore, these surrogate mothers accepted the low cost. The power difference between both parties used to be very significant. On one hand, the surrogate mother used to be poverty-driven and on the other hand, the intended parents were wealthy international individuals, because of which the surrogate mother would agree on any kind of conditions on their contract. In such circumstances, the Contract Law of India, regulated by the Indian Contract Act of 1872, also was not helpful in controlling the misuse of surrogacy in the country.
There was also no law regarding health or any other kinds of prerequisites or conditions that needed to be fulfilled in order to become a surrogate mother. In addition to that, the same also applied to intended parents. There were no prerequisites for that as well, which led to another rapidly increasing exploitation which was that of human trafficking, prostitution, child labour, begging gangs, etc. Surrogate mothers were used to give birth to babies and these babies were used for unethical practices as mentioned above. In such circumstances, the surrogate mothers were also kept in a very unhealthy environment, not paying heed to their lives as well.
All these above-mentioned circumstances resulted in a very chaotic and toxic environment for surrogacy in India, which cried for a regulation to be brought into the country in order to manage the unethical practices that were going on around the country in the name of surrogacy, and exploitation by the wealthy foreigners of the poor and uneducated women of India.
Evolution Of Surrogacy Laws In India
Indian Council of Medical Research Guidelines
After the legalisation of commercial surrogacy in India, the Indian Council of Medical Research released and laid down certain guidelines which were to be followed during the procedure of surrogacy taking place. In 2002, the Indian Council of Medical Research (ICMR) laid out guidelines for surrogacy. Further, in 2005, the ICMR issued the ‘National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India’ (ICMR Guidelines). Although these were merely guidelines and were not backed by any legislation, therefore these were not as binding in nature and as legislation, these guidelines worked as a base in regulating, documenting and legalising the procedure if surrogacy taking place in the country.
Assisted Reproductive Technology Regulation Bill, 2008
This bill was introduced in order to govern the contracts between the parties in relation to surrogacy. But the Bill grossly neglected the rights of the surrogate mothers because of which it was criticized.
Apart from that, the Bill determined the age limit of surrogate mothers from 21 to 45 years of age, and also limited the number of times a woman can become a surrogate to three times.
Assisted Reproductive Technology Regulation Bill, 2010
The 2008 Bill was revised by amending certain provisions. For example, the age limit was decreased to 35. Prerequisites of becoming a surrogate mother were also added like certain health requirements were to be fulfilled by the surrogate mother. Proper documentation of any foreign couple was made mandatory.
The Surrogacy Regulation Bill
In 2016, the Surrogacy Regulation Bill, 2016 was introduced in the Lok Sabha. But this Bill was not moved forward, that is, it was not introduced in the Rajya Sabha and therefore the Bill was never enacted. But later on in 2019, this Bill was again introduced in the Lok Sabha as Surrogacy Regulation Bill, 2019.
Surrogacy Regulation Bill, 2016
The main feature of The Surrogacy Regulation Bill, 2016 was that it aimed at prohibition, or rather, banning of Commercial Surrogacy. The focus of this Bill was on Altruistic Surrogacy. Altruistic surrogacy means such a surrogacy in which no monetisation of the surgery is involved. Section 2 of the Bill described Altruistic Surrogacy as “the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative.”
The Bill also laid down eligibility criteria to be fulfilled by a woman to become a surrogate mother. These are:
- Married woman, having her own children, which means that a woman who did not have her own children could not become a surrogate mother.
- The age of women should be between 25 to 35 years of age.
- She should be a ‘close relative’ of the intended parents.
- A medical and psychological fitness certificate was required by the Surrogate Mother.
The Bill also provided eligibility criteria for the intending parents. They are as follows:
- The couple should be in at least 5 years of marriage, which meant that single parents were not permitted to adopt surrogacy of any form. Homosexual parents were also barred from opting for surrogacy, by virtue of this Bill.
- The intending parents should be Indian Citizens. This criterion reflected the legislature’s intent to ban foreign citizens, NRIs PIOs, etc. and thereby reducing commercial surrogacy.
- In addition to the above, the intending parents should also not have any child of their own. But there were exceptions to this rule which was that if there were any child, then it should be suffering from some life-threatening disease accompanied by a certificate from the District Medical Board.
Section 6 of the Bill emphasised consent of the surrogate mother.
The Bill also established National Surrogacy Board and the State Surrogacy Board in order to regulate and review the surrogacy procedures in the country. Its functions were to advise the government on different surrogacy policies.
While this Bill was a huge step towards initiating the codification of a Surrogacy Act in India, and if passed, it would certainly have impacted and regulated the surrogacy environment of the country, this Bill also had its fair share of loopholes.
- The Bill was in violation of Article 14 of the Constitution of India which states, “Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”
The Bill barred foreign nationals from opting for surrogacy in India and only allowed Indian Citizens to avail the benefits of surrogacy in India. - The Bill also discriminated against married couples and single parents. As far as married couples are concerned it only permitted heterosexual married couples to avail surrogacy and barred couples from LGBTQ Community.
- It also limited a parent’s independence to choose between natural birth or surrogacy by adding a prior condition.
The Surrogacy Regulation Bill, 2019
Thereafter, the Select Committee recommended a few changes to the Bill. They are:
- The provision of ‘closed relative’s to be substituted with ‘willing women’. Also, the term closed relative was nowhere defined in the Bill and was left ambiguous.
- Permit Single women to avail surrogacy including divorce and widow.
- Exclude the 5 years marriage condition for married couples.
The Committee was still silent on certain drawbacks like inclusion of the LGBTQ Community, Foreign Nationals.
The 2019 Bill also penalised the commercialisation of surrogacy or simply put, commercial surrogacy. Under Section 37, punishment was provided for the initiation of commercial surrogacy for a term of not less than 5 years and also fine of up to INR 5 Lakhs for the first-time offenders.
Surrogacy Regulation Act, 2021
On 25th of December, 2021, the Surrogacy Regulation Bill was signed by the President of India, and thereafter on 25th January, 2022, the Surrogacy Regulation Act, 2021 came into effect.
- Under the Surrogacy (Regulation) Act, 2021, a woman who is a widow or a divorcee between the age of 35 to 45 years or a couple, defined as a legally married woman and man, can avail of surrogacy if they have a medical condition necessitating this option.
- Regulated the overall procedure of surrogacy in India.
- It required registration of Surrogacy clinics in order to stop mushrooming of the unlicensed and unethical surrogacy clinics.
Conclusion
In the case of Devika Biswas v. Union of India, it was held by the court that the right to reproduction is an essential facet of the Right to Life under Article 21 of the Constitution of India. The emotional factor that plays a role when a woman becomes a mother cannot be denied. Where surrogacy is certainly a boon for many people, keeping some groups of people away from it is indeed unconstitutional. The Surrogacy Regulation Act 2021, despite the massive backlash, has barred a certain group of people from opting for surrogacy, which includes homosexual couples, single male and people from LGBTQ Community. Another thing is that it has also banned commercial surrogacy completely. Complete demonetisation of surrogacy can become extreme because there are many women who agreed to become surrogate mothers only for the money because they are in dire need of it as most of them came from marginalised and poor sections. Instead, regulations should have been made so as to curb the unethical practices that were accompanied by commercial surrogacy. Although there is no doubt that India has come a long way in terms of regularisation of surrogacy, it still has to fill many loopholes in the law.
This article is written and submitted by Varsha Kumari Mishra during her course of internship at B&B Associates LLP. Varsha is a law student from Law College Dehradun, Uttaranchal University.
