THIS ARTICLE WAS WRITTEN BY YASHI SHRIVASTAVA, A STUDENT OF BANASTHALI UNIVERSITY, JAIPUR.
Surrogacy is an agreement when a woman agrees to carry a pregnancy for other parents who cannot bear child. She carries a baby in her womb for nine months and then as per agreement gives the baby to parents. Surrogacy is prevalent practice in our country and growing by the time. Many bollywood stars take the route to surrogacy. Recently, bollywood director Karan Johar had twins through surrogacy.
A standard surrogacy arrangement involves a contract for the surrogate mother to be artificially inseminated, carry a fetus for a term, and relinquish her parental rights over once the child is born.1 many countries does not recognize surrogacy legal if a woman carrying a fetus is paid by the parents i.e. if it is non-commercial or altruistic. A non-commercial surrogacy is one in which commissioning parents pay the expenses incurred by a woman to carry a pregnancy but no additional amount is paid for woman’s services as a surrogate.
India is known to have low-cost surrogacy; it has emerged as a leader in the international surrogacy and thus, had been the 2forefront in the fertility tourism. Coming to the legal aspect of surrogacy, commercial surrogacy was legalized in India in 2002. The Surrogacy (Regulation) Bill, 2016 is considered as an important step towards the regulation of surrogacy practices in India. The Bill focuses on preventing commercial surrogacy, exploitation of surrogate mothers and child born through surrogacy.3 Before moving to essentials of bill first let’s see the historical perspective of surrogacy.
Many of us think how can a surrogacy have its history and consider it as a whole new process. But surprisingly, surrogacy has its own history over. In Biblical times the first mention of surrogacy was in the “The Book of Genesis”4 in the story of Sarah and Abraham. Sarah and Abraham were married but could not conceive a child of their own, so Sarah turned to her servant Hagar to be the mother of Abraham’s child. This is a case of traditional surrogacy, where the surrogate uses her own egg in the child she’s carrying for intended parents. About 30 years ago, traditional surrogacies were the only way intended parents could have a child through surrogacy. In 1884, first artificial insemination of a woman was completed, which paved the way for future artificial insemination. In 1975, first ethically completed IVF embryo transfer was successful. In 1976, lawyer Noel Keane arranged the first legal surrogacy agreement in the history the surrogate mother did not receive any compensation for surrogacy in the traditional surrogacy. He used his experience to establish the infertility centre which arranged hundreds of surrogacies a year and played a key role in the history of the United States. In 1978, the first baby conceived through IVF transfer was born. First compensated surrogacy was arranged between a traditional surrogate and the intended parents in 1980. The very famous case in history of surrogacy is “Baby.M” case which took in 1984. By 2004-8, almost 5000 children were via surrogacy.
Clearly, surrogacy has come a long way from where it was before the late twentieth century. Today, the combination of rapidly advancing medicine and the different types of surrogacy available make it easier than ever for intended parents to complete their family and for prospective surrogates to change the lives of others forever. The history of surrogacy is just beginning — and, with its ever-changing nature, it’s reasonable to expect more will be added to the story in the future.
LAWS REGARDING SURROGACY IN INDIA
As India has emerged as a surrogacy hub for couples from foreign land, there have been many reportedly unethical practices, exploitation of surrogate mother, abandoning a child and rackets importing embryos and gametes. There was need to regulate the practice of surrogacy. The 228th report of the Law Commission of India has also recommended for prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to the needy Indian citizens by enacting a suitable legislation.5 In The Surrogacy (Regulation) Bill, 2016 surrogacy is defined as a practice where a woman gives birth to a child for an eligible couple and agrees to hand over the child after the birth. The bill allows altruistic surrogacy and prohibits the commercial surrogacy. Altruistic surrogacy involves an arrangement where the monetary reward is given only for the medical expenses occurred out of the pregnancy and not for the services provided by the surrogate.6
Criteria for couples intending to surrogacy:
- Couple should be Indian citizens married for five years.
- Female partner should be 23-50 years of age and male partner should be 26-55 years of age.
- A medical certificate stating that either or both parents are infertile.
- Partners should not have any surviving children (whether biological, adopted ,or surrogate) except if a child is mentally or physically challenged or have any fatal disease.
- An order of court concerning the parentage or custody of a child born through surrogacy.
- Insurance coverage for a surrogate mother.
Eligibility of a surrogate mother
- Surrogate mother should be married and have a child of her own.
- Should be 25-35 years old.
- Should not be a surrogate mother before.
- Should possess a medical certificate of her fitness for surrogacy.
Any child born out of surrogacy procedure shall be the biological child of the intending couple. And will be entitled all rights and privileges that are available to a natural child. The intending couple and the surrogate mother can undergo a surrogacy procedure only at surrogacy clinics that are registered with the government. To initiate the procedure, the couple and the surrogate mother need to possess certificates to prove that there are eligible. These certificates will be granted by a government authority if the couple and the surrogate mother fulfill all the conditions.
Any person who takes the aid of a doctor or a surrogacy clinic in order to conduct commercial surrogacy will be punishable with imprisonment for a minimum term of five years and a fine that may extend to five lakh rupees.
BABY MANJHI’S CASE
Japanese couple Ikufumi Yamda(husband) and Yuki Yamda (wife) traveled to India to hire a surrogate mother. The doctor arranged a surrogacy contract with Pritiben Mehta, a married Indian woman with children. Doctor Supervised the creation of an embryo from Ikufumi Yamda’s sperm and an egg harvested from an anonymous Indian woman. The embryo was then implanted into Pritiben’s womb. In June 2008’ theYamda’s divorced and a month later baby manjhi was born to a surrogate mother. Both yumi and Pritiben didn’t want the baby . nationality as well as the parentage of the baby was in question. Finally Ikufumi Yamda’s mother went to japan taking the child with her.7
- Baby Manji Yamada vs Union Of India & Anr 29 September, 2008