Surrogacy is a highly controversial topic as it leads to a lot of debate. Surrogacy is a process where the genetic-biological mother is substituted by a surrogate mother. Surrogacy in developed countries is generally done for a commercial purpose that is for money making purpose only. This paper does highlights the various provisions of surrogacy. Moreover, this article does discuss the topic that commercial surrogacy must be banned or not?. The paper does give a piece of detailed information about the law commission recommendations on surrogacy.
What is Surrogacy?
An arrangement where the womb of a woman is being hired for a specific period is called Surrogacy. The arrangement is supported by a legal agreement where the surrogate mother (other women) do agree to carry the child for a specific time (9 months), in exchange for an amount(consideration). The couples do prefer to go for surrogacy when either of them or both do face medical issues or are not physically fit to give birth to a child. Another reason for surrogacy is when the life of the intended mother is in danger. There are many other reasons why surrogacy is needs such as in the case of gay or lesbian couples, etc.
Surrogacy done for consideration(money) is called commercial surrogacy and the cost and legality of the same do vary from country to country and state to state too.
History of surrogacy in India
The practice of giving the womb on rent or commercial surrogacy was legalized in the year 2002. The decision of legalizing surrogacy was to give a kick start to medical tourism in India and due to this a lot of foreign tourists start coming to India for surrogacy only. Although commercial surrogacy is legal in other countries like the United States, etc but there the cost was surrogacy is too high as compared to India. In the U.S the cost of surrogacy is approximately $1000,000 which turns out to be 70llakh rupees approx.. whereas in India the cost of the same is approximately 5 lakh rupees only. According to the 2002 report submitted by the Confederation of Indian Industry (CII), Indian earns 2 billion dollars in a year. In the report, it was also found that approximately 3lakhs fertility clinics are engaged in the practice of surrogacy.
Due to surrogacy, many other concerns too are uplifted such as-
- Unethical practices- legalizing Surrogacy gave birth to many unethical practices that were too dangerous for society. Due to which the middlemen and the businessmen do earns a greater profit.
- Several examples have come out where it can be seen the exploitation of surrogate mothers are being done by the parties (intended parents or the middlemen) by giving them a lesser amount of consideration.
- Another major concern which was seen through several cases was the abandonment of children born out of surrogacy, for example, a landmark judgment was given by the Supreme court in the case of Baby Manji Yamada vs Union Of India & Anr on 29 September 2008, here in the case the Japanese couple came to India for surrogacy and hired a womb too but till the time the child could come out of the womb the parents got separated. Here the future of the child born out of surrogacy was in question therefore the court gave the decision that the baby would live with her grandmother.
- Surrogacy gave a license to the people who are involved in the practice of organ trade, embryo import, etc. These are the few reasons that why the legislation to regulate surrogacy is required.
Law commission of India recommendations
Law commission of India highlighted that there is a need for legislation to control commercial surrogacy. The Law Commission in its 208th report recommended prohibiting commercial surrogacy and the reasons for the same were;
– Use of surrogacy prevalently by foreigners and hence the Indian couples are not benefited out of that.
– Lack of a proper legal framework is there in India, therefore, a lot of exploitation is done with the surrogate mothers?
– Surrogate mother exploitation is bound to happen due to poverty and lack of education.
As a result of the same in 2015, the government of India issued a notification that prohibited surrogacy for foreign tourists. Moreover, in 2016, the Surrogacy(regulation) bill was first introduced in Lok Sabha, but it lapsed after the Parliament dissolved.
The Surrogacy (Regulation) Bill 2019
The Surrogacy (Regulation) Bill 2019 was introduced in Lok Sabha on 15 July 2019 and passed by Lok Sabha on 5 August 2019 but a lot of discussions is required in the same context, therefore, it referred to a self committee and it is pending in Rajya Sabha till the date. The bill talks about the establishment of the surrogacy boards at the state and the national levels. Moreover, the bill allows ethical altruistic surrogacy only but not commercial surrogacy which means that if one wants to volunteer for surrogacy then she can otherwise talking cash or king in return for lending your womb is not allowed.
Who all are allowed?
Indian couples who are married for at least 5years are eligible for surrogacy but they need to provide a certificate that either of them or both are medically unfit to give birth to a child and wants a child and they have to take an undertaking too that they will not abandon or leave the child in any condition.
Who can be a surrogate mother?
The bill does provide the conditions on who can be a surrogate mother. Any close relative of the couple only can be a surrogate mother provided that she should be married, having a child from that marriage and should be of 25-35 years of age. The bill does also provides a provision that the surrogate mother will get an insurance claim not till the time when the child is in her womb but after that too. The bill also seeks to regulate the functioning of surrogacy clinics. All the surrogacy clinics in the country are mandatory to be registered in the state board of surrogacy. The bill strictly specifies that no sex selection would be entertained at the time of surrogacy.
Key issues of the bill pending in Rajya Sabha
Is a complete ban on commercial surrogacy justified or not?. The women shall not be given a chance to earn by lending their womb?. Moreover, if commercial surrogacy will be completely banned then a possibility of underground operations do arises where the women will be exploited at a large scale. Another key issue is that according to the Surrogacy bill 2019, the married couple has to reveal that they are unfit for giving birth to a child then only they can avail the service of surrogacy but revealing the fact that they are unfit for giving birth to a child will let them face a lot of social discrimination. Another topic that is not being discussed in the bill is whether the surrogate mother will be given maternity leave or not?. One important topic on which the bill is silent is that since section 377 of the Indian Penal Code has been scraped the LGBTQ community is counted amongst the mainstream people only, so if they want to get the benefit of surrogacy so shall they be allowed to so or not.
Countries like Canada, Australia, Netherlands and Denmark only allow altruistic surrogacy but not the commercial one. One the other hand countries like France, Bulgaria, Portugal, Spain, Italy, Germany completely prohibits all kinds of surrogacy. Kenya, Malaysia and Nigeria do allow surrogacy but do not have any specific laws to regulate surrogacy. In the USA, surrogacy laws vary from state to state. Surrogacy friendly states in the USA are California, New Hampshire, Arkansas, etc allows both commercial and altruistic surrogacy. New York does not allow the commercial surrogacy and Michigan completely forbids surrogacy agreements.
Surrogacy in India is a topic which leads to many contradictions. The Indian society does recognize surrogacy as a noble cause but because of lack of education, it (surrogacy) is still considered as a taboo. Moreover, because of poverty, women tend to rent their womb for money making only which leads to their exploitation. This affects the daily lifestyle of women. Finally, at the end of this paper, I would like to say that article 14 and 21 of the Indian Constitution do provide equality before the law and do protects the personal liberty of a person too, so don’t you think that renting the womb and earning money out of it shall be a personal choice of a woman?