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
• Traditional/ Natural 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 arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
• A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
• A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
• One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
• Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
• The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
• Right to privacy of donor as well as surrogate mother should be protected.
• Sex-selective surrogacy should be prohibited.
• Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

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! 

But 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]