Surrogacy and Laws in India

Definition

Surrogacy is a method in which a woman bears a child for another woman. It can be for commercial purpose or for altruistic purpose. The word surrogate originates from Latin word surrogatus(substitution).

Kinds of Surrogacy

There are two types of surrogacy

IVF/ Gestational surrogacy

Gestational surrogacy is one in which a woman has her uterus removed but still has ovaries. She can provide the egg to make a baby, but has no womb to carry it. The egg of the wife is fertilised in vitro of the husband’s sperms by IVF/ICSI procedure, and then the embryo is transferred into the uterus of surrogate mother which she carries it for nine months.

Traditional/ Natural surrogacy

In Natural surrogacy the surrogate is inseminated with the sperm of male partner of an infertile couple. The child thus produced is genetically related to the surrogate and the male but not to the commissioning female partner.

Law on surrogacy in India

Commercial surrogacy is legal in India. Surrogacy in India is unregulated as they yet don’t have legislation controlling surrogacy although the Indian Council of Medical Research (ICMR) has set “national guidelines” to regulate surrogacy, these are simplyguidelines. All that this means is that surrogate mothers need to sign a “contract” with the childless couple. There are no stipulations as to what will happen if this “contract’ is violated.

It was in Manji’s case in 2002 that Supreme Court of India held that commercial surrogacy was legal in India.

In Jan Balaz v Union of India, the Gujarat High Court conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district.

Indian Council for Medical Research guidelines

The Indian Council for Medical Research has given Guidelines in the year 2005 regulating Assisted Reproductive Technology procedures. The Law Commission of India submitted the 228th report on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. The following observations had been made by the Law Commission:

Surrogacy versus Adoption

Adoption and surrogacy are both wonderful ways to create or add to families.

The real reason for having a surrogate mother than to adopt is so that one can have a biological blood connection to the baby. The parent can carry on their bloodline and family name into the future using either his or his partner’s egg or sperm or both. Adoption gives no such connection or control. The infertile couple maintain full control over the entire process from picking the woman to become a surrogate mother to conception to birth. Couple have all the surrogate mother information and background about both the egg donor and sperm donation. It is usually one or both of the intended parents! 

SurrogacyBut surrogacy is very expensive which its major drawback is. Not to mention the possibility that a surrogate mother may have a second thought and decide to keep the baby. On the other hand in adoption it is not the case as birth mother has already given up the baby and also adoption is very cheap and not to mention that adoption will help the poor children in terms of a family, proper food, shelter, education etc. Again I will say that both adoption and surrogacy are beautiful way to create or add families and I will encourage the infertile couple to explore all the options and choose what they think best.

 

Article by-

Akshay Saxena

Student, Symbiosis Law School, Pune, Maharashtra.

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

By Competition2011 on May 5, 2011 · Posted in Informative, Law And Society, Law and Women, Legal Issues

2 Comments | Post Comment

Aneesh says:

Dear Friend,

You have mentioned commercial surrogacy is legalized in Baby Manji Case in the year 2002. Baby Many born only in 2007, and the said case was in 2008. Then how the court will discuss in 2002???

Posted on July 2nd, 2012

hemen parekh says:

The Shape of Womb to Come ?

HTcafe newspaper ( 21 July 2013 ) , carries following headline :
“ Surrogacy shouldn’t become a money making racket – Kiran Rao talks… “
I assure Kiran that I will never launch a web site , to be called, Babies.com or Surrogacy.com ( may be already existing ! )
But , in not too distant a future , I can imagine some clever Indian youngsters to launch just such a web site

It will have following databases :

 Sperm Database ( with Ethnicity / Age / Health / Location etc )

 Egg Database ( also add , “ Beauty Index “ )

 Surrogate Mothers Database ( also add , “ Past Performance “ )

 Nearest Clinic Database ( giving details of supervising Doctors )

 Delivery Service ( UPS / FedEx / Drop Box / Hand Delivery etc )

Obviously , the web site will list prices / tariffs for thousands of possible permutations / combinations , and enable online payments – in advance of course !
After making a “ Purchase “ , the Buyers ( want – to – be – parents ) would be able to monitor the progress of their “ Order “ online ( Reports / Sono-graphs / DNA / Genetic Aberrations etc )
And since there are bound to be several such web sites within a short period , some more clever Indian youngsters are bound to come up with a “ Baby Price Comparison Shopping Site “ !

Kiran ;

Future is already here – in the form of “ Mass – Customization “ !

With regards,

hemen parekh

http://www.hemenparekh.in

Posted on July 21st, 2013