Author: Hitakshi Maggo, Student, Fairfield institute of management and technology
Surrogacy is a contract between an infertile person or a couple and a woman who agrees to be a surrogate mother or in other words who agrees to carry their child in her womb. Under this arrangement after the birth of a child through surrogate mother, the child will be a legal baby of a infertile couple or any person. Surrogate mother is a person or a woman who agrees to bear a child for another person or who will become a parent of that child. It is an indirect way to have a child which is also considered as a contract pregnancy. It becomes a topic of debate in political, social or ethical ways. Most of the times a child born through this process doesn’t get enough respect from others and because of which most couples hide this from the society. Not only this, many other issues arise which we discuss under this research.
India first legalized surrogacy in 2002 which was framed by guidelines issued by Indian council of medical research but are too uncomfortable as there is no legislation or law to back them. And due to this, women who want to be a surrogate mother for money or for helping someone being treated with unethical treatments get exploited the most. And due to poverty and lack of knowledge they treat a woman’s body for their business or say for making babies to get money. But this affects surrogate mothers as well as intended parents in different ways. For surrogate mothers it is unhygienic to be treated with an unethical treatment; it can result in serious health issues which can also be concluded as in death of surrogate mother. For intended couples or persons, if they are not capable enough to spend that much money they will not be allowed to take a baby or in most cases if parents agree with the baby they don’t know about the health condition of baby and surrogate mother who carry their baby because of the lack of proper procedure for this.
Law of surrogacy first came into the eye of the court during the case of Baby Manji Yamada V. Union of India & Anr. AIR 2009 SC 84 Under which an Indian woman became a surrogate mother for a Japanese couple. But the situation arose because the couple separated from each other a month before the child’s birth. The wife refused to take a baby from the surrogate mother and also the surrogate mother disagreed to take a baby with her. Biological father wanted to have a baby but Japanese government. At that time denied permission to bring the child to Japan because of confusion related to the nationality of the child. The Supreme court of India interfered and because of that Japan agreed to permit a baby and provide the visa on the basis of humanity and not only this Indian government provide travel certificate for the child. Custody has been transferred to the grandmother of the child on behalf of the son and was allowed to leave the country. From this point commercial surrogacy legalized in India. But commercial surrogacy creates many discomfort later on because it becomes business more than a family purpose for someone. Even surrogate mothers get exploited through this.
Need of Surrogacy (Regulation) Bill, 2020
This bill was introduced in Lok Sabha on July 15, 2019 which was passed on 5 of August, 2019 . In Rajya Sabha bill was held for examination by the select committee on 21st November, 2019. After the examination committee provided its report on 5th February 2020, with 15 recommendations the amendment bill of 2020 announced which is an advanced version of the bill introduced under Lok Sabha in August 2019.
According to records there are many cases where a number of embryos are inserted in a woman to get a fair chance of pregnancy by ignoring conditions and effects on the surrogate mother. To improve this situation under this Bill provisions were made for ethical practice of Assisted reproductive technology services. Another important purpose is to safeguard poor vulnerable women, there are many cases in which poor vulnerable womens get exploited for this. In other cases, sometimes after the birth of a surrogate baby, a couple refuses to accept the baby in that case there is a high chance of the exploitation of a child and for this purpose this Bill introduced which by its provisions ensures the protection of surrogate child and also surrogate mother too. Not only these, before this 2020 bill anyone’s who wants to get a baby through Surrogacy they don’t need to prove their infertility and any man unmarried or married can have a surrogate baby, there is no need of showing intend or infertility of having a baby, similarly LGBTQ community can also have a baby before this Bill, or a foreign couple can also have a baby but now under this Bill of 2020 only a needy infertile couple, widow and divorced women can only be considered as a intended and suitable for having surrogate baby from Surrogacy. The most important objective is to prohibit Commercial Surrogacy and allow only Altruistic Surrogacy. Under commercial Surrogacy most of the time surrogate mothers get exploited and humiliated by a couple or a middle man which is highly considerable.
Altruistic Surrogacy is a contract under which a surrogate mother would not receive any financial compensation for the purpose of executing pregnancy but the medical expenses and insurance related coverages will be received by the surrogate mother. Under this Bill this Surrogacy is a contract between a close relatives of a couple’s or intended women for Surrogacy and it is only be allowed to a Indian couple or an NRI and also it is necessary if there is a infertile couple they must have been trying for the 5 years of their marriage. Couples must have a certificate of essentiality and a certificate of eligibility issued by appropriate authority which state they are infertile and have general issue and condition and capable of Surrogacy procedure. Between the age of 23-50 for females and 26-55 years for male of infertile Indian married couples which is stated under this Bill. Also they are not having surviving children rather than mentally or physically challenged children or any other condition specified here under.
Bill also declared to regulate this method of surrogacy by establishing a state surrogacy board (SSB) and national surrogacy board (NSB). Also for the fulfillment of the purposes, the central government and state government directed to appoint one or more appropriate authority within 90 days of the bill becoming an act. Under which the functions are to grant, suspend or cancel registration and to enforce proper point for Surrogacy clinics or hospitals, if any one breaches the concept of this Bill then authority will take appropriate actions against them, authority can also recommend needed alteration in rules or regulations imposing under this Bill.
Rights Of Surrogate Mother
Age of surrogate mother between the age of 23-35 years and should be medically and mentally fit for becoming a surrogate mother.
Also if there are any side effects of the procedure present Should be cleared to her, a written consent of that surrogate mother is also necessary and if she wants to withdraw from this method she has this option before the implantation of embryo in the womb.
There is insurance coverage for her for a period of 3-6 months for postpartum delivery and related complications present. Which helps her for the after effect of delivery too. Hence, this bill does not consider only before effects but also after effects too.
I am dissatisfied at some points like if the couple who is infertile and don’t have close relative for the surrogacy purpose then they can’t have baby through surrogacy which is totally unacceptable because in world it is not necessary that all were having close relatives for this purpose and if they have one, there is very low probability where the relative is agree to be a surrogate mother for them. Surrogacy to foreigners should be applicable with some of the restrictions. And also the condition of “certificate of infertility” is in complete violation with ‘right to privacy’ under the landmark judgement of Justice KS Puttaswamy & And. V. Union of India 2017 (1) SCC 10 it is stated that the right to privacy is considered as fundamental rights and it is mandatory to be protected under the constitution of India. Not only this in the case of B.K. Parthasarathi V. Govt. of A.P. 2000 (1) ALD 199, 1999 (5) ALT 715 right to make reproduction is a personal decision and in relation with right to privacy which should be maintainable under Indian Constitution and the interference of state in such decisions has scrutinized by court.
But it is considerably that the offences stated under this bill re highly appreciated, like if someone advertise or undertake for commercial surrogacy or if someone advertise or sell human embryos for this purpose, exploit surrogate mother or surrogate child will be penalized by according to this bill and the penalties for such offences include imprisonments and upto 10 years and fine upto 10 lakh Rs.