The Author, Smera Sarnath Sonker is a 2nd year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow. She has a keen interest in Law, History, International Relations and Public Policy.

SURROGACY: A BRIEF OVERVIEW

“Surrogacy” means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.[1] In 1976, lawyer Noel Keane negotiated the first legal surrogacy agreement.

Infertility has always been a major problem in our society, discussed discreetly. Surrogacy being a viable option, is very popular among couples to become parents.

‘Surrogate Mother’ means a woman bearing a child (who is genetically related to the intending couple) through surrogacy from the implantation of embryo in her womb and fulfils the conditions as provided in sub-clause (b) of clause (iii) of section 4.[2] They are also known as Gestational Carriers or Surrogate.

Methods of Surrogacy-

Traditional Surrogacy:

It involves getting surrogate impregnated by intended parent male partner’s sperm. This is rarely preferred because the child conceived will carry DNA of surrogate mother as well, this may in turn create legal problems regarding the parentage of child.

Gestational Carrier Surrogacy or GC:

It involves plantation of embryo in surrogate’s uterus. The embryo is formed using the eggs and sperms of intended parents through IVF (in vitro fertilisation) technique. This is preferred over other methods because the child conceived has no DNA of the surrogate mother, terminating any chances of legal battles regarding parentage later in life.

Types of Surrogacy Arrangements-

Altruistic Surrogacy:

Means 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.[3]

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 incurred on the surrogate mother and the insurance coverage for the surrogate mother.[4] In Baby Manji Yamda v. Union of India[5] Supreme Court held that Commercial Surrogacy is legal in India.

HISTORY OF SURROGACY IN INDIA:

The roots of surrogacy in India can be traced back long in history. It became successful in India after birth of world’s second and India’s first IVF baby Kanupriya alias Durga. She was born in Kolkata, West Bengal on 3^rd October 1978. After 1978 the field of ART (assisted reproductive technology) developed at a very fast pace.

In India surrogacy has always been a highly controversial and debated topic and was always discussed upon legal, social and ethical aspects.

A study backed by the United Nations conducted in the year 2012 estimated the economic scale of the Indian surrogacy industry to be 400 million dollars a year with more than 3,000 fertility clinics across the country but majority of them were illegal and unregulated. India had emerged as a surrogacy hub for foreigners because of the easy and cheap availability of gametes, surrogate mother and medical costs; unethical and immoral practices such as taking advantage and convincing poor and illiterate women to act as surrogates began to rise. Further, it led to the rise of intermediaries between intending parents and surrogate mothers. There were cases of intending parents abandoning the surrogate child or exploiting them by involving them in prostitution and other illegal practices. The 228^th law commission report under the chairmanship of Justice A.R. Lakshmanan gave suggestions to draft realistic and suitable laws for Surrogacy, most of these suggestions were taken up to draft the Surrogacy Regulation Bill, 2019.

PROVISIONS:

REGULATION OF SURROGACY CLINICS-

No surrogacy clinic other than those registered in this act shall get involved in any matter regarding surrogacy.
No person shall conduct or get involved in promoting commercial surrogacy.
No surrogacy clinic shall employ any person who doesn’t possesses the prescribed qualifications.
No person shall aid to conduct or conduct surrogacy at any place other than the registered surrogacy clinic under this act.
No surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist or any other person shall promote, publish, canvass, propagate or advertise or cause to be promoted, published, canvassed, propagated or advertised which—

(a) is aimed at inducing or is likely to induce a woman to act as a surrogate mother;

(b) is aimed at promoting a surrogacy clinic for commercial surrogacy or promoting commercial surrogacy in general;

(d) states or implies that a woman is willing to become a surrogate mother; or

(e) advertises commercial surrogacy in print or electronic media or in any other form.[6]

No person shall cause or conduct abortion without the permission of surrogate mother and appropriate authority concerned (the authorisation should be subject to and in compliance with the provisions of the Medical Termination of Pregnancy Act, 1971).
No person shall store a human embryo or gamete for the purpose of surrogacy, excluding legally allowed storage for sperm banks, IVF and medical researches.
No person shall cause to conduct or conduct sex selection for surrogacy.

REGULATION OF SURROGACY AND SURROGACY PROCEDURES-

Surrogacy shall be conducted only for the following purposes:
Altruistic surrogacy purposes.
Either or both intended parents are suffering from proven infertility.
The purpose of producing children is not for prostitution, sale or any other form of exploitation.
Conditions to be fulfilled for surrogacy:
A certificate issued by District Medical Board of proven infertility in favour of both or either of the intended parent.
Court of the Magistrate of the first class or above should pass an order on the application of intended parents and surrogate mother regarding the parentage and custody of the child.
An insurance certificate issued from an insurance company or an agent recognised by the Insurance Regulatory and Development Authority of amount as prescribed in the favour of surrogate mother for 16 months covering postpartum complications.
Conditions to be fulfilled in order to get an eligibility certificate for the surrogate mother:
Should be married and have a child of her own
Her age should be between 25-35 years on the day of implantation or help in surrogacy by donating her eggs.
Should be a close relative of the couple.
No one shall act as a surrogate mother more than once in her lifetime.
A certificate issued by medical practitioner for psychological and medical fitness of the surrogate mother.
Conditions to be fulfilled in order to get an eligibility certificate for intending parents:
The male partner should be between 26-55 years. The female partner should be between 23-50 years.
They should be citizens of Indian and married for at least 5 years.
They should have no surviving biological or adopted child (except if he/she has any mental or physical disorder or life-threatening fatal disease.)
No person shall seek or conduct surrogacy or any of its related procedures unless all side-effects and after-effects are explained to the surrogate mother and in a prescribed form a written consent of the surrogate mother in a language that she knows.
The surrogate mother shall always have an option to withdraw her consent before the implantation of embryo in her womb.
The intended parents shall never abandon the child born out of surrogacy procedure.
Child born out of surrogacy will be considered as the biological child of the intended parents and shall enjoy all legal rights as a natural child.
No person shall force the surrogate mother to abort except in prescribed situations.

REGISTRATION OF SURROGACY CLINICS

Every established clinic should be registered within this act to become operational.
Every certificate of registration shall be valid for 3 years after which it should be renewed with the prescribed fees.

NATIONAL AND STATE SURROGACY BOARDS

The central government shall establish a National Surrogacy Board (NSB).

The functions of NSB would be:

To constitute code of conduct of surrogacy clinics.
To advise central government on matters relating surrogacy.
To supervise the functioning of State Surrogacy Board.

The state government shall establish a State Surrogacy Board (SSB).
The boards shall meet atleast once in 6 months.[7]

APPROPRIATE AUTHORITY

The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act.

Their functions would be-

To recommend modifications and alterations in rules and regulations.
To grant, suspend, cancel the registration of surrogacy clinic.
To investigate and take action against breach of this bill.
To enforce prescribed standards of surrogacy.

OFFENCES AND PENALTIES

This bill includes following offences-

Selling or importing of human gametes or embryo for the purpose of surrogacy.
Advertising commercial surrogacy.
Conducting commercial surrogacy.
Exploitation of surrogate mother.
Disowning, abandoning or exploiting the child born out of surrogacy.

The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.[8]

CURRENT POSITION:

The Surrogacy Regulation Bill, 2019 was presented in the Lok Sabha (Lok Sabha) on 15^th of July, 2019 by the Minister of Health and Family Welfare, Dr. Harsh Vardhan, it was passed on 5^th of August, 2019. Currently it is in Rajya Sabha (Upper House) waiting for the assent. People are hoping that Rajya Sabha would suggest some amendments so as to make the act more flexible and incorporate LGBTQ community as well, especially after section 377 of Indian Penal Court was declared unconstitutional in Navtej Singh Johar & Ors. v. Union of India[9].

The bill has received both positive as well as negative public opinion. While moving the bill in the lower house for consideration and passage, health minister Harsh Vardhan said the bill is “the need of the hour.”[10] Gautham S Pon (DMK) opposed the bill saying that it was “unrealistic and self-defeating” and altruistic propositions do not work in real life.[11] The bill was referred to a 23 member select committee of Rajya Sabha, which suggested 15 major changes, including “that not only close relatives but any woman who is "willing" should be allowed to act as a surrogate.”[12] The bill was approved by the Union Cabinet after including the recommendations.

SURROGACY LAWS WORLDWIDE:

NETHERLANDS:

Commercial surrogacy is prohibited. Imprisonment of 1 year, if found engaged in it.
Single intending parent allowed.
Intending parent should be a citizen of Netherlands.
Surrogate mother should have atleast one child of her own.
Surrogate mother would be the legal guardian of surrogate child.
Surrogate mother should be less than 44 years.

UNITED KINGDOMS:

Commercial surrogacy is prohibited. Imprisonment of maximum 3 months, if found engaged in it.
Single intending parent allowed.
Intending parent should be a permanent residence.
Surrogate mother would be the legal guardian of surrogate child.
Surrogate mother’s age is not specified.

SOUTH AFRICA:

Commercial surrogacy is prohibited. Imprisonment of maximum 10 years, if found engaged in it.
Single intending parent allowed.
At least one of the commissioning parents needs to be domiciled in the country.[13]
Surrogate mother should have atleast one child of her own.
Intending parent(s) would be the legal guardian of surrogate child.
Surrogate mother’s age is not specified.

GREECE:

Commercial surrogacy is prohibited. Imprisonment of minimum 2 years, if found engaged in it.
Single women and couple allowed as intending parent(s).
Intending parent(s) should be a domicile holder of Greece.
Intending parent or parents would be the legal guardian of surrogate child.
Surrogate mother’s age is not specified.

RUSSIA:

Commercial surrogacy is allowed.
Only single women and couple allowed as intending parent(s).
No requirement of Russian citizenship.
Surrogate mother should have atleast one child of her own.
Surrogate mother’s age should be between 20-35 years.

JUDICIAL CONCERNS:

In Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India And Ors.[14] of 2012 the Supreme Court of India recognized the constitutional right of women to make reproductive choices under article 21 of the Constitution of India which states that-

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”[15]

Therefore, it is completely a woman’ choice and decision to be a surrogate mother. Restricting her on the basis of marital status, age or number of own children is a clear infringement of her right over her body and reproductive choice.

Back in 1978, the Supreme Court had ruled that live-in relationships were valid.[16] The apex court recognises live-in relationships as valid and akin to married couples if they have lived together for a considerably long time.[17] But the bill allows surrogacy only for ‘legally married couples’ which could be challenged.
The bill doesn’t allow homosexuals and single male parent to have a child through surrogacy which is a violation of equality principle guaranteed by the Constitution of India under article 14-

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[18]

Article 19(1)(g) guarantees right to-

“to practise any profession, or to carry on any occupation, trade or business.”[19]

By prohibiting commercial surrogacy this fundamental right might be violated as it will prohibit women to practise surrogacy as a profession or occupation in order to earn money and livelihood.

SUGGESTIONS:

The Surrogacy (Regulation) Bill, 2019 is still in Rajya Sabha waiting for assent, though after incorporating the recommendations of Select Committee of Rajya Sabha chaired by Mr. Bhupinder Yadav, Union Cabinet has approved it. After the bill was passed in Lok Sabha it received heavy criticism majorly because it didn’t recognize homosexuals and single male parent for surrogacy. Further, the clause of ‘legally married’ alienated the live-in couples from surrogacy and it prohibited surrogacy for foreigners. Furthermore, it prohibited commercial surrogacy which was a means of livelihood for many rural and poor families. It restricted the age for the couple seeking surrogacy, which again was deemed to be discriminatory.

On the positive side, it definitely safeguarded the interest of surrogate mother as well as child. Though with certain more amendments which would incorporate homosexuals, single male parent and foreigners the bill would be more incorporative. Further, it should allow for commercial surrogacy as it is a means of livelihood for many women in rural areas.

People are hopeful that the government would further amend the bill and make it more inclusive according to the present scenario where the society is willing to accept and include homosexuals, single parent and live-in couples and they are no longer viewed as outcast.

TABLE OF AUTHORITIES:

Cases

Justice K S Puttaswamy & Anr v Union of India & Ors [2017] Supreme Court of India............................................................................................................................................... 10
Navtej Singh Johar & Ors v Union of India [2018] Supreme Court of India......... 7
Baby Manji Yamda v. Union of India................................................................................... 3

Statutes

The Surrogacy (Regulation) Bill 2019.......................................................................... 2, 3, 4

Constitutional Provisions

The Constitution of India 1950............................................................................................ 10

REFERENCES:

Dey, S. (2019, August 5). Lok Sabha passes Surrogacy Bill. Retrieved from The Times of India: https://timesofindia.indiatimes.com/india/lok-sabha-passes-surrogacy-bill/articleshow/70543538.cms
International comparison of surrogacy laws . (n.d.). Retrieved from PRS Legislative Research: https://www.prsindia.org/sites/default/files/bill_files/International%20comparison%20of%20surrogacy%20laws.pdf
Lok Sabha passes Surrogacy Bill to ban commercial surrogacy. (2019 , August 5). Retrieved from RSTV Bureau : https://rstv.nic.in/lok-sabha-passes-surrogacy-bill-ban-commercial-surrogacy.html
(2009). Need for legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy. Law Commission of India. Retrieved from https://www.latestlaws.com/library/law-commission-of-india-reports/law-commission-report-no-228-need-legislation-regulate-assisted-reproductive-technology-clinics-well-rights-obligations-parties-surrogacy/
Sinha, C. (2019, September 4). Is the Surrogacy Bill regressive? Retrieved from India Today: https://www.indiatoday.in/india-today-insight/story/surrogacy-bill-2019-whose-womb-is-it-1595195-2019-09-04
The Surrogacy (Regulation) Bill, 2019. (n.d.). Retrieved from PRS Legislative Research: https://www.prsindia.org/billtrack/surrogacy-regulation-bill-2019
Union Cabinet okays Surrogacy (Regulation) Bill. (2020, February 26). Retrieved from The Economic Times: https://economictimes.indiatimes.com/news/politics-and-nation/union-cabinet-okays-surrogacy-regulation-bill/articleshow/74318133.cms