• The Law Gazette

Legal & Ethical Perspective of Surrogacy In India

Since times immemorial, the problem of infertility among married couples has been present, only to have increased in the recent past. The option available to such couples was either to remain childless or to adopt a child. However, with the advancement in the technology and medical science, particularly in the field of artificial human reproductive technologies (hereinafter, “ART”), it has come to the rescue of such individuals and have provided them with an option to beget a genetically related child.


ART offers the advantage of begetting a child who is genetically related to at least one of the parents and thus, satisfying the natural human desire to have a biological offspring. There are various options in this technology which includes – in vitro fertilisation, surrogacy, and embryo transfer, and many more. In India, the option of surrogacy is becoming very popular and is also known to be a very controversial method. This, in turn, has given rise to the concept of surrogacy tourism which is developing as an industry in India. Therefore, is it vital to identify the various contentious issues involved in surrogacy and examine the inadequacy of the existing framework in India for the regulation of practice of surrogacy.


THE CONCEPT OF SURROGACY

Surrogacy is an important method of assisted human procreating for those who cannot, or choose not to procreate in the traditional manner.[1] It is a process in which a woman agrees to be impregnated by assisted conception, and thereafter, carries the resulting foetus, while relinquishing all parental rights to the child at birth.[2]


This method is like a boon to those women who are unable to conceive due to various reasons. All women may not be able to carry their own genetic offspring. When pregnancy is medically impossible or it is considered as very risky for the health of the mother, then such couple opt for Surrogacy arrangements. The couples who seek for the method of surrogacy are called Intended Parents and the woman who carries the child is called Surrogate mother. By using a surrogate, such women could still raise a child that is her partners` biological child.[3]


The technique of Surrogacy can be carried out in two ways; Traditional Surrogacy and Gestational Surrogacy [4].

Traditional Surrogacy: This involves insemination of the surrogate naturally or artificially with semen of the male partner of the childless couple and thus resulting child is genetically related to the surrogate mother.

Gestational Surrogacy: In this, an embryo from the eggs of intended couple is formed in the test tube and transferred to the womb of the surrogate with the help of Artificial Reproduction Techniques (ART). Thus, resulting child has no genetic similarity to the surrogate mother.


CONTENTIOUS LEGAL AND MORAL ISSUES IN SURROGACY

1. Access to Surrogacy

According to International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, the right to procreation is also a fundamental basic human right. However, the increasing use of technology raises the important issue as to whether surrogacy can also be used as a right and who can avail this right? Traditionally, surrogacy is considered as the last option available for procuring a child by married couples. However, the use of this method has become a contentious issue due to the use of surrogacy by other persons also like divorced, widowed or single people, as well as same sex couples, aged, disabled and any other people or couples who are interested to have a child. Increase use of technology by these people to beget a child would have a great impact on the social structure, meaning of family, institution of marriage and it will affect the social norms, morals and ethics in society. Furthermore, the use of surrogacy by aged and disable persons will raise the issues relating to maintenance and welfare of the child born. Therefore, it is essential to determine the criteria regarding the use of surrogacy by individuals other than married infertile couples.


2. Harm to Surrogate Mother

Most of the women act as surrogate mothers due to financial crisis or other economic necessity. However, surrogacy technology may involve some complications and cause harm to the health and life of the surrogate mother. This raises the important issue of liability for the harm caused or suffered by the surrogate mother. If there is no medical negligence on the part of the doctors and other paramedical staff, it would be difficult to fix the liability and thereby indemnify the loss suffered by the surrogate mother.


3. Validity of Surrogacy Contracts

The law relating to surrogacy contracts is vague and uncertain. Different countries have different laws with respect to the validity and enforceability of surrogacy contracts. Some of the countries consider these contracts as illegal while some others have their own laws for their regulation. In India, it is generally criticised that surrogate contracts are opposed to public policy because they involve the use of a womb by a women for begetting a child to be handed over to the other party on payment of money, which is like renting a womb and selling of the child. It is pertinent to note that a contract opposed to public policy is a void contract according to the Indian Contract Act of 1872.[5]


4. Dignity of A Woman

In Surrogacy, a woman’s body is used for producing a baby which would be handed over to the intending parents. During the pregnancy period, the surrogate mother has to abide by the conditions as laid down in the said contract. The surrogate mother considers pregnancy as a means of earning money. Thus, the natural mother-child bond is absent in this process. There is a criticism that the woman is treated as breeder machines and thus, it degrades the dignity of a woman.


LAWS RELATED TO SURROGACY IN INDIA

Commercial Surrogacy has been declared legal in India since 2002. Indian Council for Medical Research (ICMR) gave its first guidelines in 2005 for acceleration, regulation and supervision of ART clinics. In 2008, Supreme Court of India stressed the need for a legislation to govern surrogacy. Then in 2009, Law Commission of India submitted a report on need for a legislation to control surrogacy and to solve issues related to this. In 2010, ICMR revised the guidelines and proposed a legal agreement between Intended parent, prospective surrogate and the ART clinic before commencing the process. In 2015, commercial surrogacy was prohibited by Government of India which had closed the doors for NRIs, foreign nationals and POI. In 2016, Union Cabinet approved the Surrogacy Regulation Bill. This bill allows only Indian married heterosexual infertile couples to avail surrogacy services. Now this bill has been passed in the Lok Sabha and is up for being discussed in the Rajya Sabha, after which it is expected to be implemented as the law.


SUGGESTIONS AND CONCLUSION

Surrogacy, as a method for begetting a child, has been practiced since many years. However, the increased use of surrogacy has raised legal and ethical debates all over the world. In India, surrogacy is becoming a booming industry due to the fact that surrogate mothers are easily available and the entire cost of this method is quite less when compared to that of other countries. It should be noted that the various issues raised by this method of ART have no specific law to regulate and govern it, along with the practice of surrogacy.


An attempt was made by Indian Council of Medical Research to adopt certain guidelines for the regulation of surrogacy. However, these are not sufficient and they lack legal force. Another such attempt made in this regard is the Assisted Reproductive Technology Bill in the year 2010. However, it is yet to become a statute and does not deal with the method of surrogacy in detail.


For the effective regulation and resolving the various contentious issues raised by surrogacy, the following suggestions are mentioned below –

i. Urgent need to have a specific legislation for the regulation and control of surrogacy in India;

ii. Access to surrogacy should be limited to infertile married heterosexual couples;

iii. In case of harm to surrogate mother, the liability should be fixed to commissioning parents;

iv. While making any regulations for surrogacy, utmost interest must be given to the child; and

v. The terms and conditions of contract of surrogacy should be clearly laid down and a proper balance should be maintained between the duties of surrogate mother and the

protection of dignity and her rights.


END NOTES

[1]Kathryn Venturatos Lorio, Alternatice Means of Reproduction: Virgin Territory of Legislation, 44 LA. L. Rev, 1655, 1641 – 1676, (1984).

[2] Katherine B. Lieber, Selling the Womb: Can the Feminist Critique of Surrogacy be answered?, 68 Ind. L. J., 207, 205 – 232 Winter (1992).

[3] Dr. Shaun D. Pattinson, Medical Law and Ethics, 271, (Sweet and Maxwell, 2nd ed. 2009).

[4] Leslie Haberfield, Surrogate Motherhood in Victoria: What now for altrusistic surrogacy?, 37 (Monash Universirty, 1988)

[5] Indian Contract Act, 1872, § 23.


ABOUT THE AUTHOR

This blog has been authored by Pranjali Pandya & Sravanthi Kudupudi, both Final Year B.A., LL.B. (Hons.) students at Damodaram Sanjivayya National Law University, Visakhapatnam.


[PUBLICATION NO. TLG_BLOG_20_127_04]