Surrogacy Law: Regulation to Borrowed Motherhood
Surrogacy is a process whereby a woman agrees to undergo in vitro fertilization and gets pregnant to bear the child of another person with the intention of handing over the child to them after birth. It is usually supported by a legal agreement or Contract between the surrogate mother and parents of the newborn. Surrogacy is often referred as “womb on rent”. Surrogacy is of two types, on the basis of embryo formation- Traditional surrogacy, Gestational surrogacy. In terms of consideration and monetary value involved surrogacy is of two types:
1. Commercial Surrogacy
A surrogacy where the agreement revolves around any form of monetary benefit or compensation to be provided to the surrogate mother by the side of intended parents, apart from health insurance and essential expenditure involved up to limited period of time, in and after delivery is known as commercial surrogacy.
2. Altruistic Surrogate
If a surrogacy agreement does not contain any consideration or compensation apart from reasonable expenses, such a form of surrogacy is known as altruistic surrogacy.
SURROGACY LAWS AROUND THE WORLD
Surrogacy is one of the most debated topic around the world. Different countries hold different opinions and liberties with respect to surrogacy and the child born out of it. Some countries and state reports favorable laws towards these reproductive technologies, others are restrictive or even in dilemma.
In United States, surrogacy laws differ from state to state. In 19 states, commercial surrogacy is legal whereas in 10 states surrogacy is a punishable offence. The child born by surrogacy is eligible for a US passport, regardless of the citizenship of its parents.
In Canada AHRC allows altruistic surrogacy. Any compensation apart from reimbursement for approved expenses is illegal.
In counties like Brazil Surrogacy as altruistic is allowed but the commercial surrogacy is banned.
UK allows surrogacy agreements under reasonable expenses but using foreign surrogate has some constraints. Parent of a surrogate baby have to apply for a parental order to have a parental right over a child.
In some other European countries like France, Germany, Italy, Spain and others any form of Surrogacy is banned and not authorized by the law.
In Australia, commercial surrogacy is not authorized by the law but the altruistic surrogacy has been legalized for heterosexual couples. In western and southern Australia, surrogacy is banned for homosexual couples or single parents under Surrogacy Act, 2008 and The Family Relationship Act, 1975.
Most of the countries in Asia do not have laws related to surrogacy. Russia has legalized gestation and commercial surrogacy arrangements.
SURROGACY IN INDIA
Surrogacy laws in India, like any other country, is very debatable. For a long period, India was the popular destination for international intended parents. According to a research done by WHO in year 2010, around 48.5 million couple across the globe were unable to have their own child and for many of them, India offered a very attractive surrogacy package . The Indian Council of Medical Research (ICMR) in 2005 came up with guidelines stating that the surrogate mother would be entitled to monetary compensation, the value of which would be decided by the couple and the surrogate mother.
It also specified that the surrogate mother cannot donate her own eggs for the fertilization and that she must relinquish all parental rights related to the surrogate child, making India as the first country to legalize commercial surrogacy.
The aftermath presented a very shocking transformation. By 2012, India had become the surrogacy capital of the world with surrogacy tourism valued at 400 Million US Dollar and over 3,000 fertility clinics were opened, which was revealed by the 2012 UN report. And the reason behind is the property and lack of livelihood among the citizen which forces women to rent her own womb again and again in order to earn a wage for her family leading to different health issues and early death of surrogate women along with premature death of fetus or malnourished birth.
Apart from the aforementioned issues, this liberal attitude of India gave birth to various legal issues which eventually created hurdle for both- the child born out of surrogacy to the surrogate mother and the indented parents, one of such case is:
BABY MANJI YAMADA V. UNION OF INDIA, AIR 2009 SC 84
This case is one among the list of landmark judgment in the realm of surrogacy laws and the transformation related. In 2008, a surrogate baby (Manji Yamada) was unable to leave India after her birth for three months because of citizenship issues as she held neither Indian nor Japanese nationality.The case came before the apex court as a writ petition under Article 32 of the Indian Constitution and the issue involved was resolved after the Japanese government issued a one-year visa to her on humanitarian grounds.
The Indian government granted a travel certificate to the baby in September 2008 in line with Court’s directions. Apart from this case, there are plenty more cases like Jan Balaz v. Anand Municipality and ors. (2009) that proved the academic interest of people to the surrogacy law and the time as usual turned its table in favor and like other nations, India too traveled a long path to strengthen its legalization covering surrogacy and Assisted Reproductive Technology (ART).
In year 2013, India banned surrogacy for foreigner homosexual couples and single parents. After that in year 2015, India came up with a legislation banning any form of commercial surrogacy and permitted entry of embryos only for research purposes, making surrogacy possible only in its altruistic form. Shortly in year 2016, the Surrogate Regulation Bill, 2016 was introduced and passed by Lok Sabha. The bill banned any form of commercial surrogacy in India, save ethical surrogacy or altruistic surrogacy. But surrogacy in any form is prohibited for homosexual couples- foreigners or overseas Indian Citizen.
ELIGIBILITY CRITERIA FOR THE INTENDING COUPLE AND THE SURROGATE MOTHER
i. The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
ii. The surrogate mother needs a ‘certificate of eligibility’ which shall be given when:-
· the couple being Indian citizens and married for at least five years;
· between 23 to 50 years old,
· they do not have any surviving child except if the child is mentally or physically challenged or suffers from a life threatening disorder, and
· Such other conditions that may be specified through regulation.
iii. A certificate of essentiality will be issued to the intending couple upon fulfillment of the following conditions:
· a certificate of proven infertility of either or both of them,
· an order of parentage and custody of the surrogate child passed by a Magistrate’s court, and
· Insurance coverage for the surrogate mother.
However, the 2016 bill lapsed owing to the adjournment sine die of the parliament session.
The bill was reintroduced by the Minister of health and family welfare Dr. Harsh Vardhan in lok Sabha on July 15, 2019 as The Surrogacy (Regulation) Bill, 2019. But the bill was considered ineffective to become a law because of many issues such as:-
1. The Bill permits surrogacy only for those who cannot conceive and not in any other medical conditions which could prevent a woman from giving birth to a child.
2. The Bill specifies eligibility conditions and additional condition that need to be fulfilled by the intending couple. This may be excessive delegation of legislative powers.
3. The surrogate mother and the intending couple need eligibility certificates from the appropriate authority. The Bill does not specify any time frame within which such certificates will be granted. It also does not specify an appeal process in case the application is rejected. 4. The surrogate mother must be a ‘close relative’. But it does not define the term ‘close relative’.
5. For an abortion, in addition to complying with the MTP Act, 1971, the approval of the appropriate authority and the consent of the surrogate mother is required. The Bill does not specify a time limit for granting such an approval. Further, the intending couple has no say in the consent to abort.
REGULATION OF SURROGACY BILL, 2020
In order to curb the issues in the 2019 bill, Lok Sabha incorporated changes suggested by the Rajya Sabha making surrogacy law liberal for widows and divorced women besides infertile couples. The surrogacy (Regulation) Bill, 2020 was approved by the cabinet and 15 major changes were commended by the committee.
A. The bill aims at banning commercial surrogacy and allowing altruistic surrogacy and allows a willing woman to be a surrogate mother and would benefit widows and divorced women along with the previously benefited infertile couple.
B. The bill also tends to delete the definition of infertility.
C. The bill also resolved issues such as the definition of “close relative”. Now the surrogate mother need not to be a “close relative” of the intended parents as this clause restricts the availability of surrogate mothers, affecting people in genuine need.
D. Apart from that the insurance cover for a surrogate mother has been increased to 36 months from 16 months.
FEATURES OF THE SURROGACY (REGULATION) BILL, 2020
1. This bill provides for the constitution of surrogacy board at the national as well as state levels to ensure effective regulation of the law.
2. This bill seeks to allow altruistic surrogacy to the intending infertile Indian married couple between the age of 23-50 years for females and 26-55 years for males.
3. This bill restricts the surrogacy option to Indian couples only, after obtaining a certificate of essentiality and eligibility before going for surrogacy.
4. This bill also provides that intending couples should not abandon the child born out of surrogacy in any scenario. And the child shall be entitled to all rights and privileges under the Indiana laws that are available to a natural child.
5. The Bill also seeks to regulate the functioning of surrogacy clinics. All surrogacy clinics across the nation, need to be registered by the appropriate authority in order to undertake surrogacy or its related procedures.
6. The Bill provides for various safeguards for surrogate mothers. One of them is insurance coverage. This bill also specifies that no sex selection can be done when it comes to surrogacy.
The journey of surrogacy is beautiful and inspiring, because it brings the light of hope when the darkness is on its zenith, it teaches that happiness will find its way to you, if not from your own womb then from the other heavenly figure out there to help you. This gestational surrogacy and all the artificial ways to have a family proves the fact that “patient and perseverance has a magical effect before which all difficulties disappear”.
But the human tendency created an urgency to have strict laws to regulate and liberate when needed, so that no one can avail profit out of the situation. The present bill passed by the cabinet is the right move as per the current situation, so that all the loophole can be corrected and the legitimate ones can use this surrogacy procedure to fill their home with happy colors.
ABOUT THE AUTHOR
This blog has been authored by Akanksha, who is a 2nd year B.A., LL.B. (Hons.) student at School of Law, Narsee Monjee Institute of Management Studies, Bengaluru.
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