Surrogacy: A Legal and Ethical analysis
- Kartikey Goel
- Feb 17
- 6 min read
Updated: Feb 18
A contract in which a woman bears a pregnancy "for" another couple is referred to as a surrogacy. Numerous infertile couples travel to India, where commercial surrogacy is permitted, from all over the world. Although it seems that everyone involved would benefit from this arrangement, there are certain sensitive concerns that need to be addressed through carefully crafted rules in order to safeguard the surrogate mothers and the intended parents' rights.
The global frequency of infertility is on the rise, which has prompted the development of assisted reproductive technologies (ART). When an infertile woman or couple is unable to conceive, surrogacy is offered as a possible option. In a surrogacy agreement, a surrogate mother conceives and gives birth to a child on behalf of another couple or individual.
Surrogacy is the agreement of a woman (the surrogate mother) to carry a kid to term in order to give birth to a child that will be given to other people (the intended parents) who are unable to have children.
Surrogacy In India
In India, there are primarily two forms of surrogacy:
1. Traditional / Natural / Partial surrogacy
2. Gestational surrogacy.
Traditional surrogacy: The intended father's or sperm donor's sperm are used to artificially inseminate the surrogate mother. Since the surrogate's own egg was utilised, she is the child's genetic and biological mother. IUI is the method applied in this kind.
Gestational surrogacy: Because her eggs are not at all used in gestational surrogacy, the surrogate mother is not genetically connected to the kid. The intended father supplies the sperm, the intended mother provides the eggs, and the two are combined in-vitro to create the embryo, which is then placed in the surrogate mother's womb to continue developing. These days, IVF or ICSI are employed.
While commercial surrogacy is outlawed in England, several US states, and Australia, which exclusively recognises altruistic surrogacy, it is permitted in India, Ukraine, and California. Germany, Sweden, Norway, and Italy, in contrast, do not recognise any surrogacy agreements. India is become a popular location for fertility tourism. So-called surrogacy services lure couples from overseas to India every year since the cost of the entire operation there is up to one third cheaper than it is in the United States and the United Kingdom (10-20 lakhs).
Reproductive freedom is a fundamental human right recognised in Article 16.1 of the 1948 Universal Declaration of Human Rights and is protected in India under Article 21 of the Indian Constitution.
In many situations, intended parents are people who have spent years attempting to become pregnant, either naturally or in vitro. Intentional parents can include, for instance, single males who want a child and single women who are unable to bring a child to term due to infertility or health concerns.
Surrogacy's Evolution
In 2002, India authorised commercial surrogacy. The commercial businesses and rules were then provided to the foreign visitors who had arrived looking for ladies who would rent out their wombs to enable them to become parents. Finally, this undermined the dignity of women and promoted the sale of newborns, organs, and other things.
In the 228th report of the Indian Commission, it was suggested that commercial surrogacy be outlawed in favour of ethical surrogacy. It was also mentioned that women who rent their wombs do so because they are poor and struggle to pay for basic requirements.
The ICMR was put into effect in 2005 to outlaw commercial surrogacy.
Related Cases
Baby Manji Yamada v. Union of India (AIR 2009 SC) Case Laws:
· A Japanese couple's baby Manji Yamada was born to an Indian surrogate mother; the pair had split up at the time of the baby's birth.
· There were no legal safeguards in Japan or India for the biological father to return with his kid.
· In the end, the Supreme Court gave the child's grandma permission for her to go.
The Gujarat High Court ruled in Jan Balaz v. Anand Municipality that the child born to a surrogate mother for a German couple needed a birth certificate in the name of the biological mother in order to be registered as an Indian and awarded a passport.
These landmark instances led to the passage of a law that forbids foreign spouses.
Numerous surrogacy bills have been approved as of late:
Surrogacy regulation bill 2016:
It was approved by LOKSABHA in 2016:
Features:
· The Bill exclusively enables surrogacy for couples who are unable to conceive. In the event of any other illnesses that would prohibit a woman from giving birth to a child, this surgery is not permitted.
· The Bill outlines the qualifying requirements that the intended couple must meet in order to commission surrogacy. It also enables new conditions to be imposed by regulations. Possible over-delegation of legislative authority.
· The prospective couple's closest relative who has given birth should be the surrogate mother.
At accordance with Section 3 of the Act, no commercial surrogacy shall be performed by a specialist or medical professional in a location other than one that is recognised as a surrogacy clinic.
· No specialist or medical professional may practise without a licence.
· No clinic or individual shall in any manner encourage a woman to act as a surrogate mother by promotion, assistance, or marketing of commercial surrogacy.
· The phrase "seeks a woman to act as a surrogate" implies that the woman is open to serving as a surrogate.
· No abortions may be performed without the mother's agreement, and the Medical Termination of Pregnancy Act of 1971 shall be followed by the appropriate authority.
· No human embryo or gamete storage is permitted for surrogacy purposes.
Surrogacy regulation bill 2019:
· The Bill's Section 4(ii) outlines the specific circumstances in which surrogacy is legal in India:
· The intended parents must have infertility that has been documented by medical records in order to qualify for surrogacy.
· Only altruistic surrogacy, which provides actual assistance to intended parents without any financial gain aside from medical costs, should be authorised.
· It limits commercial surrogacy, which is done by surrogate mothers in order to get financial rewards.
· The offspring of surrogacy shall not be sold, used as prostitutes, or exposed to any other kind of exploitation.
· The pair has any illness or condition that is listed as such by law.
Eligibility:
(1) According to Section 4(iii)(a) of the Bill, the intended couple must meet certain requirements in order to be eligible to undergo surrogacy.
A "certificate of essentiality" and a "certificate of eligibility" are required for the pair. The intended pair receives a certificate of essentiality upon fulfilment of the following requirements:
· District Medical Board certificate proving the couple's infertility.
· The Magistrate Court granted the couple custody of the kid, and they received 16 months of insurance to cover the surrogate mother's medical costs, including any necessary healing procedures.
(2) Clause 4 (ii)(a) of Chapter III of the Surrogacy Regulation bill 2020 and some of the related clauses at pages 43–45 require the following:
4.(ii) Surrogacy and surrogacy operations are prohibited unless they are used for the following objectives, specifically:
When a couple plans to use a gestational surrogate because of a medical condition: Provided that an Indian couple or a woman planning to use a surrogate must acquire a certificate of recommendation from the Board upon submission of an application in the format and manner specified by the Board.
(3) (i) A District Medical Board certification of a medical indication in favour of one or both members of the intended spouse or the intended mother needing gestational surrogacy.
(ii) Insurance coverage from an insurance company or agent recognised by the Insurance Regulatory and Development Authority established under the Insurance Regulatory and Development Authority Act, 1999, covering postpartum delivery complications for a period of 36 months in favour of the surrogate mother;
If a woman is prepared to act as the intended woman, the intending couple or the intending woman [specified expressly in Section 4 (1) of the 2020 Bill at page 44 of the same report] must approach the competent authorities.
(iii) No woman shall donate her own gametes in an attempt to behave as a surrogate mother;
A woman is only permitted to take on the role of a surrogate mother once.
Issues
The rights of the children produced, the ethical and practical repercussions of the further commodification of women's bodies, the exploitation of low-income and poor women in need of money, and the moral and ethical repercussions of turning a woman's body's natural biological function into a business transaction are just a few of the numerous issues raised by surrogacy.
Conclusion:
For infertile couples worldwide, childlessness is a very serious and serious condition all throughout the globe. It's important to feel sorry for the situation and look for a solution. However, solutions to complex issues don't often come right away. It is odd that individuals are using surrogates while there are about 12 million orphaned children in India. For childless families who wish to give these youngsters a home, adoption is a difficult and drawn-out process in India. Despite the country's 60 years of independence, there is still no comprehensive adoption legislation that is applicable to all of its residents, whether they be Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs), or Overseas Citizens of India (OCIs). Courts must carefully review solutions to determine any potentially serious consequences of their outcomes.
Due to a lack of social agreement, efforts to create legislative legislation in response to advancements in assisted reproductive technologies are thwarted. It is important to strike a balance between empathy for individuals who want to have children and support for reproductive freedom, as well as worries about the commercialization of reproductive practises and alterations to natural family structures.
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