“The Vatican is against surrogate mothers. Good thing they didn’t have that rule when Jesus was born.” –Elayne Boosler, American Comedian.
What is surrogacy?: Surrogacy is a recognized method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child’s genetic mother (the more traditional form of surrogacy) or she may, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them. If the pregnant woman takes compensation for carrying and delivering the child (other than medical and other reasonable costs) the procedure is called a commercial surrogacy, otherwise the procedure is referred to as an altruistic surrogacy. Surrogacy is a blessing for infertile women and homosexual couples which wish to have children
Surrogacy Industry in India: India has the biggest industry of commercial surrogacy. Due to the convenience, lesser restrictions and low costs of the procedures, parents in foreign countries prefer to come to India to find surrogate mothers because of which India is fast becoming the capital of commercial surrogacy in the world. The surrogacy industry, in India, is now a 25,000 crore rupee industryAnand, a small town in Gujarat, with a population of around only 1,50,000 people produced more surrogate children, over the span of four years, than any other country and has acquired a distinct reputation as a place for outsourcing commercial surrogacy. The clinic located in this town has given more than one hundred couples the chance to become parents and they expect that to increase at least 40 to 50 percent soon.
Legal Status in India: Sadly, even though our country’s economy is prospering and thousands of people are getting the joy of childre, India does not yet have a legislation controlling surrogacy. Though surrogacy is not illegal in India, it does not have an exact law governing it. Article 16.1 of Universal Declaration of Human Rights 1948 says, inter alia, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family”. The Judiciary in India too has recognized the reproductive right of humans as a basic right.
India’s first gestational surrogacy took place in 1994 in Chennai. In 1997, a woman from Chandigarh in India approved to carry a child for 50,000 rupees in order to gain medical treatment for her paralyzed husband. The Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy”. While giving a verdict in case involving a Japanese baby carried in India, the Supreme Court had not only validated “commercial surrogacy”, but also termed it a virtual industry. When it comes to commercial agreements, contracts are signed by both the parties. “The contract is valuable not just as a legal document (especially since in the case of a dispute, family law would supersede contract law, meaning, basically, the contract isn’t legally binding in most states), but as a way of getting everything that needs to be discussed out on the table.” The contract usually sings up the intentions of both parties to produce a child for the intended parents and free will of both parties in taking this decision. This contract will be important evidence if the surrogacy results a custody battle . The sum of compensation is also mentioned in the contract. Any additional points may be included to the contract by the will of one of the sides. In that case, Justice Pasayat said that surrogacy is legal in several countries, including India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates, it is reaching industry proportions.
In another case, Yonatan and Omer Gher [Baby Manji Yamada v. Union of India, JT 2008 (11) SC 15] an Israeli gay couple became parents in India, when their child was conceived with the help of a surrogate mother residing in Mumbai, in a fertility clinic in Bandra . It is reported that a baby boy was born to them at Hiranandani Hospital in Powai (Mumbai) on October 12, 2008. Since Israel does not allow same gender couples to adopt or have a surrogate child, India became their first choice to find a surrogate mother. Yonatan and Omer reportedly first came to Mumbai in January 2008 for an IVF cycle when Yonatan is stated to have donated his sperm. Thereafter, they selected an anonymous “mother”. After the child was born, the gay couple left for Israel with the child on November 17, 2008. Even though homosexuality was an “Unnatural Offence” under Section 377 of the Indian Penal, there is no bar to gay couples hiring a surrogate mother to deliver children for homosexual couples in India.
Many problems arise due to the lack of laws to clear certain issues like the rights of the surrogate, the couple and the child. Other issues include whether single women should be allowed to hire surrogates and whether there should be an age limit to use ART. In an effort to legalize commercial surrogacy, The Assisted Reproductive Technology (Regulation) Bill & Rules – 2008, a draft bill prepared by a 15 members committee including experts from Indian Council of Medical Research (ICMR). The ICMR members also had prepared the guidelines for surrogacy laws in India in 2005. Supporting surrogacy, it legalizes commercial surrogacy stating that the surrogate mother may receive financial compensation and will relinquish all parental rights. Single parents can also have children using a surrogate mother. Foreigners, upon registration with their Embassy can seek surrogate arrangements .
In a case in the Gujarat High Court [Jan Balaz v. Anand Municipality], Hon. The Chief Justice Mr. K.S.Radhakrishnan stated:
“Commercial surrogacy is never considered to be illegal in India and few of the countries like Ukraine, California in the United States. Law Commission of India in it’s 220th Report on Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as rights and obligations of parents to a surrogacy has opined that surrogacy agreement will continue to be governed by contract among parties, which will contain all terms requiring consent of surrogate mother to bear the child, agreement of a husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying the child to full term, willingness to hand over a child to a commissioning parents etc. Law Commission has also recommended that legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parents without there being any need for adoption or even declaration of guardian. Further it was also suggested that birth certificate of surrogate child should contain names of the commissioning parents only and that the right to privacy of the donor as well as surrogate mother should be protected. Exploitation of women through surrogacy was also a worrying factor, which is to be taken care of through legislation.”
Conclusion: Thus, in the light of the aforementioned reasons, it can be concluded that right to surrogacy is necessary and is a boon to humanity, on the condition that the legislation regulates assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy . A statutory authority needs to be set up to adjudicate all matters in relation to surrogacy. This Forum, Court, Authority can also be the adjudicating authority to determine disputes decide offences and determine penalties under the Bill. Without this, the proposed Act is not meaningful, is inconclusive and will only create more uncertainty leading to more disputes and inconsistent views . However, to make any of this possible it is essential to remove, as far as possible, the feeling of degradation that comes into peoples mind when faced with the concept of “renting a womb”.
Vikrant Shetty, First year Student
Rizvi Law College, Mumbai
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]