Surrogacy Defined
Surrogacy is when a woman (the surrogate mother) agrees to become pregnant and give birth to a child for another couple (the intended parents) who are unable to have children of their own.
Some of the results of this research are laws, important court cases, and specific regulatory bills.
Type of Surrogacy
Conventional surrogacy and natural or partial surrogacy are the two types of surrogacy that are commonly used in India.
Surrogacy throughout the gestational period
In the more common practise of traditional surrogacy, the intended father’s or a sperm donor’s sperm is used to artificially inseminate the surrogate mother. Because the surrogate uses her own egg during the pregnancy, she is considered to be the child’s genetic and biological mother. IUI is the method that is utilised when carrying out this type.
Because the surrogate mother’s eggs are not used at any point in the gestational surrogacy process, there is no possibility of a genetic connection between the child and the surrogate mother. Eggs are donated by the intended mother, while sperm is donated by the intended father. After the egg and sperm are put together in a lab, the embryo is put in the womb of the surrogate mother so it can keep growing. ICSI and IVF are the two methods that are used.
Ethical surrogacy: Most people think of surrogacy as a “treatment” for people who can’t have children or an alternative to adoption. As such, it should be celebrated as a way to help people become parents. However, there are instances in which surrogacy may not be the most ethical choice.
Surrogacy that is performed for financial gain is known as “commercial surrogacy.” This type of surrogacy encompasses any surrogacy agreement in which the surrogate mother receives payment for her services in addition to the reimbursement of any applicable medical costs.
Article 16.1 of the Universal Declaration of Human Rights from 1948 recognises the right to reproduction as one of the most fundamental human rights. In India, the right to reproduction is protected under Article 21 of the Constitution of India.
In this context, what does it mean to refer to a “intended pair,” and who is eligible to apply?
In many instances, the people who want to be a kid’s biological parents are those who have spent years attempting to conceive a child, either naturally or through the procedure of in vitro fertilisation.
For instance, single men who want a child and single women who cannot carry a child to term themselves owing to infertility or other health issues can both qualify as intended parents for a kid.
The practise of commercial surrogacy was made legal in India in the year 2002, marking a significant turning point in the history of surrogacy. After that, the commercial firms and guidelines were provided to the foreign tourists who came in search of women who can rent her womb for their motherhood. These tourists arrived from countries outside of the United States. In conclusion, this undermined the dignity of women and encouraged the sale of newborns, organs, and other body parts.
It was recommended in the 228th report of the Commission of India to replace commercial surrogacy with ethical surrogacy. It was also stated that the reason behind a woman renting her womb is poverty due to which they suffer for daily necessities and voluntarily participate in surrogacy.
The International Convention for the Modification of Reproductive Technologies went into effect in 2005 with the intention of outlawing commercial surrogacy.
Baby Manji Yamada vs. Union of India (AIR 2009 SC) is a case law that states the following:
1.Manji Yamada, who was born into the world by an Indian surrogate mother on behalf of a Japanese couple who were experiencing marital difficulties at the time of the birth of their kid,
2.The infant’s biological father desperately wanted to reclaim his child, but neither India nor Japan had any legal laws that would allow this.
3.The case was ultimately resolved with the Supreme Court granting permission for the kid to travel with her grandma.
The Gujarat High Court ruled in the case of Jan Balaz vs. Anand Municipality that a child born to a surrogate mother on behalf of a German couple must have a birth certificate issued in the name of the child’s biological mother in order for the child to be registered as an Indian citizen and be granted a passport.
These landmark cases led to the creation of a bill that prohibits foreign spouses from soliciting Indian mothers. This legislation has now taken effect.
Bills Concerning Surrogacy: Up to this point, a number of surrogacy bills have been passed:
Bill for the Regulation of Surrogacy in 2016:
It was approved by LOKSABHA in the year 2016:
Surrogacy is allowed under this bill, but only for couples who are unable to have children of their own. If a woman has any other health problems that would make it impossible for her to give birth, she is not allowed to have this treatment.
The proposed law lists the requirements that the intended parents would have to meet in order to have surrogacy done on their behalf. In addition, it makes it possible for additional conditions to be stipulated by regulations. There may have been an undue amount of legislative power delegated here.
The surrogate mother should be a close cousin of the intending parents and should have some experience raising a kid on her own.
Eligibility requirements include that both a “certificate of essentiality” and a “certificate of eligibility” be shown by the prospective couple, both of which should have been issued by the relevant government. A “certificate of eligibility” is also required of the surrogate mother in this scenario.
A certificate of essentiality will be issued to the intending couple upon fulfilment of the following conditions: an order of parentage and custody of the surrogate child passed by a Magistrate’s court; insurance coverage for the surrogate mother; and a certificate of proven infertility for either or both of the intending couple.
The certificate of eligibility to the intending couple is issued upon the fulfillment of the following conditions: the couple being Indian citizens and married for at least five years; being between 23 and 50 years old (the wife) and 26 and 55 years old (the husband); not having any surviving child (biological, adopted, or surrogate), except in the case where the child is mentally or physically challenged or suffers from a life-threatening disorder; and such other conditions as may be specified. The certificate of eligibility is issued upon the fulfilment of the
The surrogate mother must meet the following requirements in order to be eligible for a certificate of eligibility from the appropriate authority: she must be a close relative of the intending couple; she must be a woman who has ever been married and has a child of her own; she must be between the ages of 25 and 35; she must not have been a surrogate mother in the past; she must have a certificate of medical and psychological fitness.
In accordance with the terms of Section 3 of the Act, a surrogacy clinic is required to be registered, surrogacy cannot take place anywhere other than a registered clinic, and neither specialists nor general practitioners may engage in commercial surrogacy.
There is a blanket ban on any specialist or medical practitioner practising without a licence.
No commercial surrogacy should be promoted, assisted, or advertised in any way, and no clinic or other individual should ever encourage a woman to become a surrogate mother.
Implies the willingness of a woman to carry out the role of surrogate by seeking a woman to act as a surrogate for her.
The Medical Termination of Pregnancy Act of 1971 stipulates that there should be a complete prohibition on abortion in the absence of both the mother’s permission and the involvement of an appropriate authority.
It is strictly forbidden to store human gametes or embryos for the purpose of surrogacy.
Bill for the Regulation of Surrogacy in 2019:
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The following are the conditions that must be met in order for surrogacy to be legalised in India according to the provisions outlined in Section 4(ii) of the Bill:
The prospective parents who are interested in using surrogacy must be unable to have children of their own, as evidenced by medical records.
Only surrogacy performed out of altruism will be tolerated; this type of surrogacy offers genuine assistance to childless families in exchange for no financial reward other than reimbursement for necessary medical expenditures.
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The following are the conditions that must be met in order for surrogacy to be legalised in India according to the provisions outlined in Section 4(ii) of the Bill:
The prospective parents who are interested in using surrogacy must be unable to have children of their own, as evidenced by medical records.
Only surrogacy performed out of altruism will be tolerated; this type of surrogacy offers genuine assistance to childless families in exchange for no financial reward other than reimbursement for necessary medical expenditures.
It places limitations on the practise of commercial surrogacy, which refers to a surrogate mother carrying out the act for the goal of financial gain.
The children who are born as a result of surrogacy must not be exploited in any way, nor may they be sold to other people or subjected to any form of prostitution.
Both members of the couple suffer from any ailment or condition that is required by the rule.
Eligibility: In Section 4(iii) (a) of the Bill, it is stated that eligibility criteria have been created for the intending couple in order for them to undergo surrogacy. These eligibility criteria are stated to be in accordance with the bill.
Both a “certificate of essentiality” and a “eligibility certificate” must be gathered by the couple before they can proceed. A certificate of essentiality can be obtained by the couple planning to get married if certain prerequisites are met, including the following ones:
The District Medical Board has given a certificate stating that the pair has been shown to be infertile.
- The couple was awarded legal custody of the kid by the Magistrate Court. 4. The couple paid for 16 months of insurance coverage for the surrogate mother to cover her medical expenditures, including the cost of the healing treatment.
Article 4 (ii)(a) of Chapter III of the 2020 Bill related to Regulation of Surrogacy and Surrogacy Processes mandates the following, and some of the pertinent clauses can be found on pages 43-45:
4.ii) It is strictly forbidden to engage in, undertake, perform, or otherwise make use of any form of surrogacy or surrogacy treatments, with the exception of the following reasons:
When a prospective couple has a medical condition that requires them to use gestational surrogacy: Provided, however, that a couple of Indian origin or an intending woman who intends to avail herself of surrogacy shall obtain a certificate of recommendation from the Board on an application made by the said persons in such form and manner as may be prescribed.
In the context of this subclause and item (I) of subclause (a) of clause (iii), the term “gestational surrogacy” refers to the practise of having a surrogate mother carry a child for an intending couple by implanting an embryo in her womb. The resulting child does not have any genetic ties to the surrogate mother.
When it is done only for the aim of charitable surrogacy;
Whenever it is not for the goal of making a profit or of engaging in activities that involve the commercialization of surrogacy or surrogacy treatments;
(I) a certificate from a district medical board stating that a medical indication exists in favour of either or both members of the intending couple or intending woman that necessitates the use of gestational surrogacy; this document must be presented in order to use gestational surrogacy.
(III) an insurance coverage in favour of the surrogate mother covering postpartum delivery complications for a period of thirty-six months from an insurance company or an agent recognised by the Insurance Regulatory and Development Authority established under the Insurance Regulatory and Development Authority Act, 1999;
Provided, however, that the intended couple or the intending woman [a term that is defined specifically in Section 4 (1) of the 2020 Bill on page 44 of the aforementioned report] shall approach the competent authority with a willing woman who agrees to act as a surrogate mother;
(b)(III) No woman shall provide her own gametes in order to fulfil the role of a surrogate mother;
It is forbidden for a woman to serve as a surrogate mother more than once during her entire life.
Concerns Among the many concerns that are raised by surrogacy are the following: the rights of the children that are produced; the moral and ethical repercussions of the further commodification of women’s bodies; the exploitation of poor and low-income women who are desperate for money; and the transformation of a normal biological function of a woman’s body into a financial transaction.
Childlessness is a very real and enormous problem for infertile couples all around the world. Here are some suggestions on how to combat this issue.
everywhere in the world. Both empathy and the pursuit of a remedy are required in this situation. But, it doesn’t take a moment for one to think of a solution to a challenging situation. In order to weigh the potentially serious consequences of various remedies, the judicial system must conduct an investigation.
The fact that people can’t agree on one thing is a big problem for lawmakers who are trying to make laws in response to advances in assisted reproductive technology. Concerns regarding the commercialization of reproductive techniques and alterations to natural family ties need to be weighed against empathy for people who want to start a family and support for reproductive freedom.
