Surrogacy is a form of third-party reproductive practice or an arrangement in which the intending parents and the surrogate mother jointly agree that the latter shall conceive, gestate and give birth to a child. After the child is born, it is decided that the surrogate mother would legally and physically hand over the child to the intending parents without preserving any parentage or parental obligations1. Etymologically, the word Surrogacy originates from the Latin term "Surrogatus", which roughly defines a substitute, i.e., a person appointed to act in the place of another. Along the same lines, the Black's Law Dictionary defines surrogacy to mean the "process of carrying and delivering a child for another person".2
Essentially, there are two types of surrogacy practices: Traditional and Gestational. Traditional surrogacy involves fertilizing the surrogate mother with the semen of the male partner of the childless couple. A child born this way is biologically related to the surrogate mother3. The surrogate mother (called a gestational carrier) is not biologically connected to the baby in gestational surrogacy. Instead, the embryo is created in the laboratory using the intended mother (or donor's egg) and intended fathers semen through Vitro fertilization (VF). Later on, it is transferred to the surrogate mother's uterus at the clinic.
BACKGROUND:
The practice of surrogacy and the laws governing it are not well-entrenched yet, although it is opted by several urbane couples as a viable option to become parents, albeit sparingly. Commercial surrogacy has largely been an unregulated industry in India for the past two decades, despite its increasing importance.4 While countries like the Russian Federation, Columbia, Ukraine and some States of the USA permit commercial surrogacy, there are countries like France, Finland, Italy, Japan, Spain, Sweden, Switzerland, Hungry, Ireland, etc., where surrogacy in all forms is banned.
Before 2008, surrogacy (essentially commercial) was being rapidly carried out in India without any statutory regulatory mechanism, despite the guidelines devised by Indian Council for Medical Research (ICMR).
Until a few years ago, India had an estimated 20-25 million infertile couples, thereby making Assisted Reproductive Technology (ART) such as surrogacy a solution to their problems.5 Since its legalization in 2002, the rise of the commercial surrogacy industry in India has been such that a U.N.-backed study in July 2012 estimated the surrogacy business in India at new dimensions at $400 million per year, with above 3,000 fertility clinics across India.6
Moreover, the importance of surrogacy in the medical tourism industry of India cannot be understated. Initially, when commercial surrogacy was legalized in India in 2002, it was said to be a part of the country's drive to promote medical tourism, an industry that back in 2012 generated the estimated US $2·3 billion annually. Estimates are hard to come by, but since then, more than 25,000 children were thought to be born to surrogates in India, 50% of whom were from the West.7
REGULATIONS IN INDIA:
The efforts of the Legislature in crystallizing the rules and regulations to safeguard the interests of both the surrogate mother along the intended parents have been slow and lethargic in comparison with the presence and prevalence of surrogacy. ICMR released the very first set of rules regarding surrogacy in India. Further, an attempt to form central legislation around all ART procedures began in 2008, with one specifically for surrogacy starting in 2016, neither of which has come to fruition until this day.
There have been multiple lapses in bills without even reaching the tables of Rajya Sabha, along with endless refurbishments being ordered of the ones that did make the distance. In the absence of well-defined and exhaustive regulations, there is an abundance of misinformation and scepticism. Further, poverty and lack of education are often the driving reasons women become surrogates, which solidifies their inability to challenge their exploitation. The women are plagued by towering issues like having to live in shelter homes to avoid the social disgrace of being a surrogate, lack of appropriate infrastructure, security and assistance required, not being given copies of their contracts, and exploitation by external agencies which provide only a nominal amount to the surrogates from the handsome payment received from commissioning parents.
The first set of Government accredited guidelines about surrogacy is the Indian Council of Medical Research Guidelines on Art Clinics, 2005. While not drafted exclusively for surrogacy, it contained material guidelines to be followed by ART clinics in terms of carrying out all surrogacy procedures.8
Upon realizing the need to provide legislation to regulate clinics carrying out ART procedures and the need to codify the rights and obligations of the parties, the Law Commission decided to take Suo Moto action and dealt with surrogacy in its 228th report. The report's recommendationswere multifarious to comprehensively simplify and regulate the provisions aiming at transparency, privacy, avoiding sex-selective surrogacy, prioritizing the future and ensuring the legitimacy of the surrogate child, and providing financial support for the surrogate child and mother, under speculated events of future contingencies.
Another proposed regulation is the Assisted Reproductive Technology Bill, 2020, initially drafted in 2008 but was not presented before Parliament. A year later, in light of the aforementioned 228th Law Commission Report, a new bill was formulated in 2010.9 Eventually, after several modifications in 2013, 2014 and 2017, the Bill of 2020 was introduced in the Lok Sabha on 14 September 2020. The Bill seeks to support and provide for the regulation of Assisted Reproductive Technology services in the country.10 Some key features11, among other things, include the mandatory registration of all ART clinics under the National Registry of Banks and Clinics of India to maintain a central database and the legal implications and prescribed sanctions for any contravention. To avoid ambiguity, this Bill of 2020 relies upon the Surrogacy (Regulation) Bill, 2020.
The Surrogacy (Regulation) Bill was initially introduced in the year 2016. While it came to be passed by the Lok Sabha on 19 December 2018, it was not placed on the floor of the Rajya Sabha. Subsequently, the Bill of 2016 in the same form was re-introduced in the Lok Sabha as Surrogacy (Regulation) Bill, 2019 (Bill No. 156 C of 2019) and was passed once again on 05 August 201912.
Key Features of the Surrogacy (Regulation) Bill, 2016:
i) Infertility: The Bill permits surrogacy only for couples who cannot conceive a child naturally. The procedure is not allowed in case of any other medical condition that may prevent a woman from delivering a baby. [S.4(ii)(a), S.4(iii)(a)]
ii) Eligibility Certificate: The surrogate mother and the intending couple need eligibility certificates from the appropriate authority.
The certificate of eligibility of the intending couple is issued upon the fulfilment of the following conditions:
(a) the couple must be Indians and at least married for five years;
(b) Wife is of age between 23 to 50 years while the husband is aged between 26 to 55 years;
(c) There should not be any surviving child (biological, adopted or surrogate), except if the child is mentally or physically challenged or suffers from a life-threatening disorder;
(d) such other conditions that regulations in place may specify. [S.4(iii)(c)(III)]
iii) Relationship with Surrogate Mother: The surrogate mother must be the intending couple's 'close relative'. The Bill does not define the term' close relative'. (Since changed) [S.4(iii)(b)(II)]
iv) Other Conditions About Surrogate Mother: The age of the surrogate mother is required to be between 25-35 years; she cannot be a surrogate more than once in her lifetime and must have at least one child of her own. [S.4(iii)(b)(I)]
v) Insurance and Medical Expenses: Insurance coverage of the surrogate mother to be compulsorily provided by the intending parents, along with other medical expenses. [S. 4(iii)(a)(III)]
vi) Abortion: Compliance with provisions of Medical Termination of Pregnancy Act, 1971, the competent authority's approval and the surrogate mother's permission are required. No consent is required from the intending couple to abort. [S.3(vi)]
vii) Ban on Commercial Surrogacy: The Bill prohibits commercial surrogacy and allows only altruistic surrogacy, i.e., surrogacy is only allowed when carried out without the presence of any monetary compensation. [S.4(ii)(b)]
viii) Status of Surrogate Child: A child born out of a surrogacy procedure is presumed to be the biological child of the intending couple. Such a child shall have all the rights and privileges available to a natural child under any law for the time being in force.
iv) National and State Boards: The central and state governments shall constitute the National Surrogacy Board (NSB) and State Surrogacy Boards (SSBs).
Functions of the NSB include (i) advising the central Government on surrogacy policy; (ii) laying down the code of conduct of surrogacy clinics; and (iii) supervising the functioning of SSBs.
Functions of the SSBs include: (i) monitoring the implementation of the provisions of the Act; and (ii) reviewing the activities of the appropriate authorities functioning at the state/union territory level. (Chapter V, S. 14 to S. 31)
x) Offences and Punishments: The Bill creates certain offences, which include: (i) undertaking or advertising commercial surrogacy; (ii) exploiting the surrogate mother; and (iii) selling or importing human embryos or gametes for surrogacy. These offences will attract a penalty of 10 years and a fine of up to 10 lakh rupees. (Chapter VII, S.35 to S.42)
It was then referred to a select committee of 23 members headed by Mr Bhupendra Yadav to arrive at a more satisfactory set of laws. The appointed panel came up with recommendations for 15 changes13, including recommendations that:
i) A surrogate mother need not be a "close relative".
ii) Deletion of the definition of "infertility" as "the inability to conceive after five years of unprotected intercourse" because it was an unjustifiable delay for a couple to wait for a child.
iii) The order regarding the parentage and custody of the child, issued by a Magistrate, shall be the birth affidavit for the surrogate child.14
iv) Widows and divorcees to be allowed to opt for surrogacy.
v) The proposed insurance cover for surrogate mothers is to be increased to 36 months from 16 months.15
The Union Cabinet had since approved the Bill in 2020.16
LANDMARK CASES REVOLVING AROUND SURROGACY IN INDIA:
The Hon'ble Supreme Court in Baby Manji Yamada vs Union of India17 dealt with the custodial rights of a baby girl for a father who separated from his wife during the gestation period of the surrogacy, leaving the fate of the baby in dire uncertainty. The Supreme Court, upholding the validity of the Surrogacy Agreement, held that the genetic father of the child deserved custodial rights, and the Government was instructed to issue the passport to baby Manji Yamada, who returned to Japan with her grandmother, who had petitioned the Apex Court.
In Jan Balaz vs Municipality of Anand18, the Hon'ble High Court of Gujarat decided the citizenship status through surrogacy. The fact of the matter was that upon entering into a contract for surrogacy with an Indian mother, a German couple became parents to twins. The German Government refused to give the newly born babies citizenship because the state law did not recognize surrogacy as a means to parenthood. The biological father, Jan Balaz, then petitioned for Indian passports for the two babies and the same was denied because the children were not Indian citizens and, therefore, not entitled to get a Passport under the Indian Passport Act. The Court decided that the children were born in India to a surrogate mother who was an Indian national and hence was deemed to be citizens of India within the meaning of Section 3(1)(c)(ii) of the Citizenship Act. They were then issued overseas Indian passports, and subsequently, the German courts allowed the couple to apply for adoption of the children.
In P. Geetha vs The Kerala Livestock Development Board, the High Court of Kerala19 adjudicated upon the right of a female employee to avail maternity leave for child care when the child is born through surrogacy. The petitioner being an executive in the Kerala Livestock Development Board, sought maternity leave being the intending as well as the genetic mother. The Board, citing its Limited Staff Rules & Regulations, did not permit maternity leave to the employee because the pregnancy and birth were not under 'normal circumstances'. Debunking this flawed reasoning and discriminative practice, the Kerala High Court granted child care leave to the petitioner. The Court accepted the technologically progressive means of attaining motherhood and accorded legal recognition to the same.
TEST OF CONSTITUTIONAL SCRUTINY FACED BY THE SURROGACY (REGULATION) BILL, 2020:
Keeping in mind the decision of the Apex Court in Devika Biswas v. Union of India,20 the right to reproduction was described as an essential facet of the 'Right to Life' under Article 21. Women's reproductive rights include the right to carry a baby to term, giving birth, and raising children. Thus, restricting surrogacy only to heterosexual couples and within a particular age group while denying reproductive choices to the LGBT community, single persons, and older couples is an evident violation of Article 21 and Article 14 as well.
In B.K. Parthasarthi v. Government of A.P.21, it was decided that the right to decide about reproduction is essentially a personal choice, and the state's intrusion into such a decision-making process has to be stringently scrutinized. Thus, the requirement of acquiring certificates of fertility to earn a right to surrogacy is a gross violation of their right to privacy.22
Further, in Consumer Education and Research Centre and Ors. v. Union of India23, the Supreme Court stated that the expression 'life' assured in Article 21 of the Constitution has a much broader meaning and includes the right to livelihood; hence that statutory ban on commercial surrogacy in this regard is yet another example of the new Bill failing the test of constitutional scrutiny and remaining in violation of the rights of the very individuals it vows to protect.
CONCLUSION:
Legislative proclivity and sensitization are the need of the hour to provide for a linear and uniform approach to the governing regulations. Until now, the non-regulation of the industry in India has not significantly hindered the popularity of the procedure due to the methodological proficiency coupled with relatively cheap execution. Yet, exploitation remains rampant. Further, the exclusion of older couples, single individuals, couples in live-in relationships, and the LGBTQ community hampers equality before the law and the constitutional sanctity against discrimination as it remains restricted to heterosexual married couples of prescribed ages. The Bill not only violates their right to personal liberty, but it also goes against the principles of equality provided under Article 14 of the Indian Constitution.24 Further, the Bill chooses to ban commercial surrogacy altogether, keeping in mind its exploitative history. Conclusion: there is a failure to realize that commercial surrogacy is not exploitative and needs strict governance and regulations, which is avoided in the present Bill by applying a blanket ban.25
Consideration should be placed on the recommendations made by the Parliamentary Standing Committee, which suggested that Surrogacy procedures should also be available to PIO, NRI, OCI, live-in couples, divorced women and widows. Further, the Committee recommended that the definition of infertility be made commensurate with the description given by WHO with eligibility within one year instead of five years. The Committee believed that limiting the practice of surrogacy to close relatives is non-pragmatic and unworkable and recommended that this Clause of "close relative" should be removed to widen the scope of getting surrogate mothers from outside the close confines of the family of the intending couple. The Committee also endorsed the suggestion of the Ministry of Women and Child Development that a surrogate mother should have an option to withdraw from the surrogacy arrangement if she chooses to do so before the start of the procedure. The Committee also recommended prescribing a time limit for issuing an essentiality certificate by the District Medical Board for any appeal or review procedure if the application for surrogacy is rejected.
Footnotes
1. Select Committee Report, Surrogacy Bill, https://prsindia.org/files/bills_acts/bills_parliament/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf
2. R. S. Sharma, Social, ethical, medical & legal aspects of surrogacy: an Indian scenario, Indian Journal of Medical Research, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4345743/
3. https://www.hindustantimes.com/analysis/the-new-surrogacy-bill-protects-the-interests-of-all/story-F4DJy6L5QsfYk57npKVB3H.html
4. https://wpj.hkspublications.org/2020/06/19/the-indian-ban-on-commercial-surrogacy/
5.Nikita Doval, Surrogacy industry thrives in India amid regulatory gaps, Live Mint, https://www.livemint.com/Politics/1tiGqG9X9ChMt9Tb1pmNpM/Surrogacy-industry-thrives-in-India-amid-regulatory-gaps.html
6. Nita Bhalla, India seeks to regulate its booming 'rent-a-womb' industry, Thomas Reuters Foundation, https://www.reuters.com/article/us-india-surrogates/india-seeks-to-regulate-its-booming-rent-a-womb-industry-idUSBRE98T07F20130930
7. Priya Shetty, India's unregulated surrogacy industry, The Lancet, https://www.thelancet.com/pdfs/journals/lancet/PIIS0140-6736(12)61933-3.pdf
8. Chapter 3, ICMR Guidelines on ART Clinics, 2005.
9. Chinmoy Pradip Sharma, Surrogacy Laws in India – Past Experiences and Emerging Facets, Bar & Bench, https://www.barandbench.com/columns/surrogacy-laws-in-india-past-experiences-and-emerging-facets
10. The Assisted Reproductive Technology (Regulation) Bill, 2020, PRS Legislative Research, https://prsindia.org/billtrack/the-assisted-reproductive-technology-regulation-bill-2020
11. ibid
12. Supra, Note 8
13. Surrogate mother need not be a close relative, Rajya Sabha Committee recommends, The Hindu, https://www.thehindu.com/news/national/surrogate-mother-need-not-be-a-close-relative-rajya-sabha-committee-recommends/article30744022.ece
14. ibid
15. Rajya Sabha panel recommendations get Cabinet nod, Hindustan Times, https://www.hindustantimes.com/india-news/rajya-sabha-panel-recommendations-get-cabinet-nod/story-itB4FkNggJq0qnNfoCY6FM.html
16. Cabinet approves surrogacy Bill, The Hindu, https://www.thehindu.com/news/national/cabinet-clears-surrogacy-regulation-bill/article30921456.ece
17. (2018) 13 SCC 518, Relevant Paragraphs: 4, 17, 19
18. AIR 2010 Guj 21, Relevant Paragraphs: 4, 17, 18, 22
19. 2015 SCC OnLine Ker 71, Relevant Paragraphs: 3, 4, 74, 75
20. (2016) 10 SCC 726
21. 2000 (1) ALD 199
22. Bhumitra Dubey and Yash Tiwari, Analysis Of The Surrogacy (Regulation) Bill, 2020, Indian Law Journal, https://www.indialawjournal.org/analysis-of-the-surrogacy-regulation-bill.php
23. (1995) 3 SCC 42
24. India's Proposed Commercial Surrogacy Ban Is an Assault on Women's Rights, The Wire, https://thewire.in/law/surrogacy-ban-assault
25. Saumya Sexena, Exposition of Surrogacy Rules in India, iPleaders, https://blog.ipleaders.in/surrogacy-rules-in-india/
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