Law · Public Policy

Law and Surrogacy in the Modern World in Comparison with India

For several people, having a family and a child is bliss and the ultimate dream. Unfortunately, for some people, the inability to give birth is very heartbreaking and destroys their future plans. This is where surrogacy comes into play.

Surrogate motherhood is when a woman carries and bears another person(s) child but does not have any biological right on the child born. India is a developing nation. With a number of other issues in modern India, surrogacy is one such problem. It has raised many ethical, moral, social, and legal questions about both, the woman and the child. Commercial surrogacy or ‘womb for rent’ is a growing business and a very relevant issue in contemporary India. Though the rate of growth of this business is not known but researches have revealed that it has increased by two times in the past few years.

SURROGACY IN THE WORLD

United Kingdom was the first country in the world to pass a legislation with regard to surrogacy. Surrogacy Arrangement Act was passed by the UK government in the year 1985 in order to abolish the system of commercial surrogacy. Also, under the Human Fertilisation and Embryology Act, 2000, the commissioning parents of the surrogate child are given the status of being his legal parents provided either of the parents are genetically related to the child. This Act has left individuals and couples with the option of altruistic surrogacy and has enabled the people who intend to become parents to look for surrogates outside their home state.

In many State Laws of USA, recognition has been given to surrogacy but it’s not clear in some States. In Florida, both gestational and traditional surrogacy arrangements are allowed but are not available for unmarried same-sex couples. Virginia and Washington allow uncompensated surrogacy but any payment made to the surrogate mother apart from medical and legal expenses is considered illegal. California has accepted surrogacy but its policy on surrogacy is based on genetics.

In Australia, altruistic surrogacy is legal and commercial surrogacy is a criminal offence. In the year 2008, the Science Council of Japan put a ban on surrogacy and said that anyone found indulging in commercial surrogacy will be punished.

INDIAN SCENARIO

Unlike other countries, India is emerging as a leader in international surrogacy. India was the first country to legalise commercial surrogacy in the year 2002. According to a report by Stanford University on Surrogacy in India (2008), around 25 percent of the population lives below poverty line. This population includes a number of women who struggle everyday to earn a living. This factor drives them towards becoming a surrogate as it proves to be a source of income through which they can support their families.

Indian Council of Medical Research (ICMR) issued guidelines in 2005 to check the use of Assistive Reproductive Technology. These guidelines are silent on major issues regarding surrogacy in India leading to extortion, ethical abuses, and exploitation of the surrogate mothers. Recently, in 2010, an attempt was made by the Indian Government with the formulation of the Assisted Reproductive Technologies (Regulation) Bill and Assisted Reproductive Technologies (Regulation) Rules to plug the loopholes which exist in the field of surrogacy. The following are some of the important provisions of the Bill:

  1. Monetary compensation should be given to the surrogate mother in addition to the healthcare and treatment expenses during pregnancy [section 34(3)];
  2. Once the amount is transferred to the surrogate mother, she will not have any parental rights on the child [section 34(4)];
  3. The age limit prescribed for becoming a surrogate is 21-35 and no woman shall be allowed to become surrogate mother for more than five successful live births in her life, including her own children [section 34(5)];
  4. There should be a surrogacy agreement between the surrogate mother and the couple or individual seeking surrogacy and it should be legally enforceable [section 34(1)];
  5. Authority to register and regulate I.V.F. clinics and A.R.T. centres should be set up at both state and national level.

Also, the Law Commission of India discussed the importance and need for surrogacy in its 228th report. According to this report certain observations were made with regard to surrogacy:

  • It will be governed by a contract between the parties involved therein;
  • Surrogate contract should also include life insurance cover for surrogate mother;
  • The surrogate child should be considered the legitimate child of the commissioning parent(s) by the legislation;
  • The birth certificate of the surrogate child should bear the name(s) of the commissioning parent(s); etc.

ISSUES RELATED TO SURROGACY IN INDIA

A major part of the Indian society is conservative in nature. Therefore with regard to surrogacy, a number of questions have arisen which are ethical, legal, social, and moral in nature. As far as the social issues are concerned, surrogacy is a means for the women living below poverty line to earn a living for themselves and their families. This results in their exploitation at the hands of the agents of commissioning parents. It also carries a social stigma and is compared with prostitution in the society and is argued to be disallowed on the grounds of morality.

The basic questions that arise over here are: Are wombs meant to be given on rent? Are babies commodities? Are women supposed to be treated as child producing machines? The answer to all these questions is, ‘NO’. There are a number of negative aspects of surrogate motherhood but women resort to it because of their needs. This is leading to formation of a new class of agents who offer monetary incentive to poor women for surrogacy and exploit their vulnerability for their own benefit.

Also severing the bond between a mother and her child through a contract is considered immoral. Since it is done for monetary purposes it makes the human life a commodity and a means to earn money which is against the ethics of the society. Also, the surrogate mothers are treated as disposable objects and this industry draws attention towards unnatural facet of pregnancy and reproduction. Though surrogacy is legal in India but being a conservative society it still continues to be highly stigmatized.

CONCLUSION

Surrogacy is a chance for the couples or individuals who are incompetent to give birth at having a child. It is the only way to defeat both biological and social infertility. However, to regulate surrogacy in India stricter laws are required to be made and implemented. Also, there should be laws guaranteeing the safety of the women volunteering for surrogacy and they should be made aware of the benefits available for them by virtue of opting for surrogate motherhood. The women involved should have a right to terminate pregnancy in case any health related issue arises. The concept of surrogacy is rather new to the world including India and therefore it still has a long way to go to outwardly manifest a legalisation.

About the Author

Archana MahanaArchana Mahana is a 3rd year law student, pursuing her BA. LL.B. from Army Institute of Law. She enjoys reading books; writing and researching have always been her areas of interest. Currently, she is interning with the Model Governance Foundation.

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