India’s Approach to Surrogacy

This article was written by Sarthak Mehta, a student of D.E.S. Law college Pune.

Motherhood is an essence of the sagacity of eternity. When the mother delivers not only the child but a life is born, the beauty of which surreal and indelible. Due to the incapacity to conceive the dispensation of parenthood is denied to the couple but the hope still exists. In the modern day scientifically and technologically furnished world, the alternates lie to almost every problem. Surrogacy is yet another way of achieving the parenthood but from and indirect alternate method.

Meaning:

Surrogacy is an assisted reproductive method which conveys an understanding whereby a woman conceives the biologically developed child of another couple. According to the Artificial Reproductive Technique (ART) Guidelines, surrogacy is-“an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention of carrying it to term and handing over the child to the person or persons for whom she is acting as surrogate.”[1]

History:

Traditionally the surrogate child was developed with the eggs of the surrogate mother and the sperm of a man who desired to raise such child as his own. But under the cloak of the vibrant lights of science, today, the pregnant woman is not biologically related to the baby. She is implanted with the already fertilized egg belonging to a couple and owes the baby out of the termination of a healthy delivery to the couple who is biologically related to such a child.

In majority of the cases, if agreed upon by the other woman, a relative or a close friend is opted for the purpose. When the dear ones turn vague, the purpose becomes commercial and thus the commercial surrogacy evolves.

The first surrogate experiment took place in the 1970’s out of the result of which baby ‘M’ was born. This arrangement didn’t specifically satisfy the definition of surrogacy but paved way to the modern day miracle ‘gestational surrogacy (whereby the biologically fertilized egg is developed into the womb of another woman)’. The experiment proved to be a mental and physical success for both, the baby and the mother. Owing its inception to the 70’s and 80’s, the surrogacy programme has vastly evolved in the past few decades, creating a subject as history for surrogacy itself.

Indian Scenario:

India was gifted with this revolution in its nascent stage. World’s second and India’s first baby out of the process of Artificial Reproductive Technology, Kanupriya, also known as Durga, was born on October 3^rd, 1978. Though the assistance of this programme have been enjoyed for more than four decades, but still, in light of surrogacy, there lack a codified law and the ship of surrogacy sails on the tides of few government provided guidelines.

Because of the comparative low prices and easy availability of the surrogate mothers, the world countries chose India for the purpose of surrogacy. The foreign couples outsource an Indian individual, based upon her consent, in return to which they are paid with a deserving remuneration. The commercial surrogacy (especially for the foreigners) was made legal in 2002. With the advancement of time the, as per the UN reports, India was capable of maintaining a surrogacy market by the total earnings reaching upto $500 Millions.

Assisted Reproductive Technology Bill, 2010 

In 2010, finally, a bill was introduced in the light of surrogacy called the ‘Assisted Reproductive Technology Bill which defined the categories of the people who could opt for surrogacy. The bill not only enabled the Indian national couples to outsource a surrogate mother but also attributed the single, non-married men and women to this privilege. This privilege was extended to the foreign couples (two individuals, having a legal relationship as per the laws of India) but was denied to the homosexual ones and the single foreign individuals.

Criticism:

This bill was considered arbitrary to the A.14 of the Constitution as this was an outcome of an unguided policy on part of the legislation due to which the dame of discrimination emerged. This hindered the UN authorized right of ‘Right to Motherhood[2]’ of the woman too, who until now, due to the perks of surrogacy enjoyed this freedom. This was also against the Article 12 of the UN Charter, ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence.’

On the other hand this it was rebutted that the Article 14 of the Constitution, that is, Right of Equality, is only extended to the citizens of India and moreover the Indian substantive laws are not bound to follow any of the internationally evolving laws.

Surrogacy (Regulation) Bill, 2016

Although this recommendation was altered and as a result of this transformation, the ‘Surrogacy (Regulation) Bill, 2016’ was introduced which was approved by the cabinet but yet not passed. The main agenda of the Bill was completely banning the commercial surrogacy. Besides, as per the mandate, at least one out of the couple must be infertile thus contributing to the non-procurement of children.

The couple, as per the bill, must be the ctizens of India, for at least 5 years and the surrogate mother they choose must be their close relative. Such surrogate mother must be married and must have already procured a child or children, in order to save her from potential threats which she might be subjected to due to the pregnancy.

Such surrogacy must be free from any kind of the professional fees, while the biological parents of the child can bear for the medical expenses of the surrogate mother. For advertising any such fees related details, the accused shall be imprisoned up to 10 years with up to Rs.10 Lakhs fine.

Aims:

The proposed bill aims at saving the innocent women from exploitation as the idea of trouble-free money can easily overrun their mind out of whose influence such women might attract physical and mental health risks. Further, the framers agree that that the law may be a little unwise but is still relevant[3], as it donates its attention to the bigger picture where the real sufferer is the woman whose womb is being rented. Banning the foreign nationals from such services is also necessary because in India, women from lower socio-economic backgrounds, in a need of money, readily agree to become a surrogate mother in return for a suitable payment, as hiring a surrogate in the western countries[4] is not only difficult, but, the treatment is also immensely costly.

Moreover some men, particularly the husbands of surrogate mothers, react badly to this ‘encroachment’ on their rights. Women who participate in surrogacy programmes report that their partners, initially agreeable to their undertaking the responsibility, often change their attitude after they take on their new role.

Criticism:

Disagreeing with the notions of the act, the parties resisting it believed this right to be an infringement to the Fundamental Rights of the surrogate mother too.

The fundamental right of doctors and clinics, providing such ART services, to practice any trade and profession under Article 19(1)(g); right to life, work, personal liberty and livelihood under Article 21 and equality before law and equal protection of laws under Article 14 of the Constitution of Inca is not infringed by the Act.

The requirement of “reasonableness” runs like a golden thread through the entire fabric of Fundamental Rights defining the exceptions to the various rights[5]. The surrogacy profession does not facially appear to fall within any of the constitutionally enumerated exceptions to the freedom and hence it is violating the fundamental right of the citizens.

Any legislation would be an unreasonable restriction within the purview of Article 19 if the punishment is too harsh in the present-day social background, in relation to the offence committed.[6]

Some jurist on exclusion of the foreigners from the domain of this act say that the right to equality is to be construed with respect to every “person” which impliedly extends to foreign nationals and hence there should be no discrimination that should be caused to them under any circumstances.

The proposed act is also believed to be infringing the Right to Livelihood under Article 21 of the Constitution as the Right to Life guaranteed embraces within its sweep not only physical existence but the quality of life too. If any statutory provisions run counter to such a right it must be held unconstitutional.[7]

Conclusion:

The elevating problems that surround the Act has created an impediment in its way to success. Government must prudently look through all the situational consequences and must elucidate the barriers that it has created to the citizens of the nation. Moreover, the legislature must also not hold itself back from accepting the suggestions of the people and eventually must abide by orders of the Honourable Supreme Court.

One does not realise the bliss and beauty of the parenthood unless he himself senses that. Parenthood is not just a feeling but a grandeur of the aura of apprehension of life. This shall never be the right provided by the state, but a birthright of all beings.

[1] The Assisted Reproductive Technology (Regulation) Bill, 2010.

[2] Article 7, UDHR, 1945

[3] State of Andhra Pradesh v. McDowell & Co., AIR 1996 SC 1628.

[4] Shuriah Niazi, ‘Surrogacy Boom’, October 14, 2007.

[5] Javeed v. State of Haryana, AIR 2003 SC 3057.

[6] Inderjeet v. State of Uttar Pradesh, AIR 1979 SC 1867.

[7] Confederation of Ex-serviceman Association v. Union of India, (2006) 8 SCC 399.