“The state must intervene to prevent the exploitation of poor Indian women who are enticed or coerced into surrogacy, as well as to protect the rights of surrogate children. However, it should also be empathetic to individuals with alternative lifestyles who are well within their legal and human rights to demand access to surrogacy services.” – Kapil Sibal on Surrogacy Laws
Surrogacy is a method or an agreement where a woman agrees to carry a pregnancy for another person(s) who will become the parent(s) of the newborn baby. In India, commercial surrogacy got legalized in 2002. India has been one of the favorite nations for those who want a surrogate baby. The service is available here at a relatively less cost and the surrogacy laws have been quite lenient for many years. There are two types of surrogacy:
- The Traditional Surrogacy: the surrogate mother’s egg is used, making her the genetic mother.
- In Gestational Surrogacy: the egg is fertilized through In Vitro Fertilisation (IVF) inside the surrogate mother.
The Ancient Hindu society practiced “Niyog Pratha” in which a woman was childless due to husband’s impotency. She was allowed to conceive from her brother-in-law, brother-in-law had no claim on that child.
In Islam, the scholars of Islam pronounced a Fatwa in which surrogacy is illegal and it is considered immoral for a woman to conceive another man’s child.
Related Acts & Statutes:
- In 2005, The Indian Council for Medical Research published guidelines related to surrogacy in India regulating assisted reproductive technology procedure. The Law Commission of India submitted the 228th report discussing the need and importance for surrogacy laws and also took steps to control surrogacy agreements.
- Assisted Reproductive Technological Bill, 2013
- The Surrogacy (Regulation) Bill, 2016
- Article 21 of the Constitution of India.
Object o Law:
In the 228th report of the Law Commission discussed the need or importance of surrogacy laws and control over surrogacy agreements. Right to Privacy of donor and surrogate mother should be protected. The surrogate child should be recognized as a legitimate child. Life insurance should be covered under the surrogacy agreement for taking care of the surrogate child.
The Surrogacy Bill, 2016 proposes the ban on commercial surrogacy. In this Bill, only Indian married couples who have been married for at least 5 years are allowed to get surrogate children. Unmarried couples, Single parents, Gay couples, live-in-partners, foreigners, are restricted to undertake surrogacy under this bill. Hence, making the surrogacy laws very strict.
Major Points ad Issues of Discussion:
Surrogacy is a controversial legal and social issue. Many countries do not have laws related to surrogacy. Some countries have imposed a ban on surrogacy. For instance, commercial or altruistic surrogacy is banned in many countries. The major issue is related to citizenship and legal status of children resulting from surrogacy. Under the Constitution of India, Article 21 ‘personal liberty’ gives every person in India to have the surrogate child but this bill has made restrictions for having a surrogate child.
The absence of adequate surrogacy laws was raised in the baby Manji case before the Supreme Court of India:
Baby Manji Yamada vs. Union of India & ANR 2008 INSC1656
In 2007, a Japanese couple Ykufumi and Yuki Yamada discussed with Dr. Patel and hired a surrogate mother to bear a child for them, through Invitro Fertilization using a sperm of Japanese man and an egg from the unknown donor. But in June 2008, the Yamadas divorced. Baby manji was born to a surrogate mother at Anand in Gujarat on 25 of July 2008. Ykufumi Yamada wanted to raise the child but Yuki did not. She felt that she was unrelated to the baby biologically, genetically and legally. The status of the child was not determined as the Japanese Indian Embassy held that the original mother of the child is Indian and therefore, Manji is not the citizen of Japan. In such cases, the commercial surrogacy creates a problem and the child becomes parentless.
Surrogacy has been restricted in many countries. India does not have any specific law related to surrogacy. However, the Surrogacy Bill has been proposed laying certain pros and cons of surrogacy. Surrogacy Bill, 2016 bans commercial surrogacy and if any person is found entering commercial surrogacy, he/she shall be punished with imprisonment up to 10 years and/or fine up to Rs. 10 Lakhs.
According to the liberal perspective, single parents and gay couples should also be given the right to undergo surrogacy. Commercial surrogacy should be banned to a certain extent only as it should not be applicable to those who want to take surrogacy just to prevent their wives from undergoing labour pain as in the case of celebrity Shahrukh Khan.