Surrogacy was meant to be one of the most powerful initiatives but as soon as the word “Commercial” got associated, things began to shatter out. Here is a short article by Sneha who explores all the faces of this die and explains why the word “Commercial” should be detached immediately from it.
Every woman is complete after giving birth to a child! Taking into consideration the negative aspect, there are some women out there who are deprived of this precious opportunity due to medical complications associated in conceiving the sperm. On the other hand, we simply cannot ignore the fact that motherhood is a joyous right and that nobody should be entitled to take this right away from her. Following the same reason, all the needy mothers now have the opportunity to become one with the introduction of the concept of surrogacy or renting of a womb on rent.
But with the passage of time and advancement of technology, the concept of traditional surrogacy is losing its original and core characteristics. It now changes to altruistic surrogacy and then ultimately takes form of commercial surrogacy in which a contract is formed between the couples and the surrogate mother. The want-to-be parents agree to pay the surrogate mother all kinds of medical expenses during pregnancy and agree to take the custody of the child immediately after his birth.
In 2002, Indian Medical Council of Medical Research legalized commercial surrogacy in India and released a set of guidelines for its enforcement, that too without any legislative support. India thereby became the first country to legalize commercial surrogacy under the title of Surrogacy Capital. This initiative proved to be very beneficial for a part of the society. The unmarried couples, single parents, live-in partners and homosexuals took the advantages of this enactment judiciously. On the other hand, for the NRIs and other non-residential citizens, this act was more of a decorated piece of cake. Foreigners and like-minded people started coming to India solely for the purpose of this concept, as this was the only country that boasted a strong legalization on these grounds. There was a case where a German couple came to India in demand of a surrogated child but the strong question that went around the grounds was regarding the citizenship of the new-born child. By birth, he happened to be an Indian but the concept being illegal in Germany, the issue of whether or not will he get a German citizenship continued to persist!
In 2008 the concept of commercial surrogacy strongly went under the scanner. A couple who adopted the procedure of surrogacy for having a child got divorced before the child was born. Both the parents refused to take up the responsibility of the child. The surrogate mother also expressed her resentment in keeping the child, expressing her inability to raise one. What followed was a set of long discussion. This legal battle ended when the custody of child was finally given to his grandmother. Gujarat HC on this issue expressed their grievances stating “There is extreme urgency to push this issue through legislation”.
According to the 228 Law Commission of India’s report “commercial surrogacy should be banned and ethical altruistic surrogacy should be allowed to the needy Indian citizen”.
The union cabinet gave introduction to the Surrogacy (Regulation) Bill 2016 in Parliament refraining unmarried couples, single parents, live-in partners, homosexuals and foreigners from adapting the procedure of surrogacy. This allowed only legally wedded Indian couples (minimum 5 years of marriage) to avail the benefit of this worthy opportunity. The condition in this regard was that only close friends or relatives of the couples having healthy children would be entitled to be a surrogate mother.
Violating any provision of the bill could impose a fine of 10 lakhs and could even lead to the person going behind the bars. According to the bill, of the couple willing to have a surrogate child, wife should be of 25-50 years and husband of 26-55 years of age.
Key features of the Bill:-
- The couple has to produce the certificate that one of them is unfit to bear a child after the proper medical examination.
- The surrogated child will get the same legal entity as natural born child.
- To safeguard the women especially poor women’s in the rural and tribal areas from the exploitation.
- Banning the couple who already have a natural or adopted child.
- Making mandatory that women can be a surrogate mother only once at a time, banning on the repetition as it will affect her health.
- Registered all the Assisted Reproductive Technology in the clinics.
- Aim at regulating the surrogacy rules and regulation in the country in a proper way.
- Complete ban on commercial surrogacy.
- Ensuring the parentage of children born through the process of surrogacy is legal.
- In no circumstances money should be paid other than medical expenses.
- At the Central and State Level the Surrogacy Regulation Board should be established.
- Penalty on the couples if they refused to take the custody of the child born with disabilities.
- Protecting the right of surrogated mother.
- Penalizing commercial surrogacy.
Foreign Minister Sushma Swaraj said that “there are 2000 surrogacy clinics whose practices need to be regulated as per the norms of altruistic surrogacy. They should also maintain 25 years record, according to the bill.” She also criticized that commercial surrogacy is more of a fashion for the celebrities like Shah Rukh Khan, Aamir Khan and Tusshar Kapoor, who are having a surrogate child despite of having their own natural child.
Permission under this bill is given only to the needy couples and not to the ones who don’t wish to bear or go through labor pain. Rich people usually approach the poor women, who in turn are anyways in need of money for their livelihood.
On the other hand, In some cases surrogate mothers are not allowed to breast feed the child and dosage of drugs are given to the surrogate mother for stopping the milk. Tight bra is made compulsory for them which lead to the exploitation of their health. In some cases, an extra pay is given to the surrogate mother for breastfeeding and if there is scarcity in the amount of milk, she is injected so as to increase the amount, which again is a highly unacceptable act on the grounds of humanity.
To sum up our thoughts, we can just conclude that Surrogacy is essential but banning Commercial Surrogacy is the actual need of the hour. This is pivotal considering the ethical grounds our country promises to work upon. It will not only safeguard the rights of an individual but will also assure the health and medical conditions of poor women!
One other question that is often raised in the court is that “whether both- the surrogate mother and genetic mother can be said to be the mother of the surrogate child?”
The court said that “Parentage is a very complex thing and this issue should be settled in the proposed law after the consultation with the Ministries of Law on Women and Child Development.”
Although the decision is still not revealed, considering the present day scenario, lesser the delay better will be the expected outcomes.
