INTRODUCTION
The advancement in medical science and technology have proved to be a boon to
mankind. At the same time they have raised lots of challenges before the legal systems
of the world. One such advancement is that assisted human reproductive technologies
and particularly surrogacy. Which have given a new meaning to the concept of
procreation. These technologies have made it possible for individuals to beget a
genetically related child with the help of a third party and with out sexual intercourse.
Among all the assisted human reproductive technologies, the practice of surrogacy, in
which women agree to have their babies used to undergo a pregnancy and give birth to
a baby for another, has raised various legal and human right controversies and attract
the legal respons throughout the world. India has particularly become a top destination
for individuals who wish to beget a child through surrogacy and hence it is imperative
for the Indian Government to address the challenges posed by surrogacy.
MEANING
Surrogacy is the practice by which a woman (called a surrogate mother) becomes
pregnant and gives birth to a baby in order to give it to someone who cannot or will not
bear children of their own. A surrogate mother is a women who carries and gives birth
to the child of another woman, who is usually infertile by way of pre- arranged legal
contract.1
According to Black’s Law Dictionary- A woman who carries out the gestational
function and gives birth to a child for another, esp. A woman who agrees to provide her
uterus to carry an embryo throughout pregnancy , typically on behalf of an infertile
couple, and who relinquishes any paretial rights she may have upon the birth of the
child.2
ORIGIN AND DEVELOPMENT
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Surrogacy was known and practiced in ancient times. In the Mahabharata,
Gandhari conceive but the pregnancy went on for nearly two years, after she delivered
amass (mole). Bhagwan Vyasa found that there were 101 cells that were normal in the
mass. These cells were put in a nutrient medium and were grown in vitro till full term
and develops into male child. There are so many examples during the ancient time.
According to Bhagwad Gita, even Lord Krishna is understood to have been born without
a sexual union. This is regarding the seventh pregnancy of Devaki by the will of the lord,
the embryo was transferred to the womb of Rohini , the first of Vasudev, to prevent the
baby being killed by kansa.3
The history of modern surrogacy method can be traced back to 1899. It is to be
noted that the various practices, customs and traditions followed by different
communities all over the world have had a great impact on the development of America
Indians can be considered as beginning point of modern surrogacy methods. If a
women of America India tribes was found infertile, she would be taken to medicine
man. If even after his treatment, the woman was not able to conceive, the chief of the
tribe had a power to grant liberty to her husband to take another woman and to have
child with that woman.
The concept of surrogacy has come into lime light since the case of Elizabeth
Kane in 1980. This technology focus on fulfilling the desire and dream of individuals to
have their own biological child with the help of another individual by using scientific
advancements. This scientific process includes long standing concerns of human society
to have an off spring to continue her legacy, name, family and property. The origin and
development of surrogacy can traced to the ancient cultures, religion and developments
all over the world which have shape the attitude of the generation towards and its
human right implication.
The practice of surrogate motherhood has had a long history and it was accepted
in many ancient cultures. For example – the ancient Babylonian legal Cade of
Hamurabi (18th century BC) recognized the practice of surrogacy and actually laid
down detail guidelines specify when it would be permitted the old testament suggests
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Ibid,2
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that surrogacy was accepted in early jewish society as a legitimate way by which
infertile couple could have children and creat a family for their own. 4
TYPES OF SURROGACY
There are two types of surrogacy , gestational surrogacy and traditional surrogacy.
Additionally, if the surrogate mother compensation beyond the reimbursment of
medical and other reasonable expenses, the agreement is called commercial surrogacy,
otherwise it is refered to as atruistic surrogacy. 5
In traditional surrogacy, this involves artificially inseminating a surrogate
mother with the intended father’s sperm via intrauterine insemination or home
insemination. In this case surrogates own egg is used.
In Gestational Surrogacy, when the intended mother is not able to carry a baby
to term due to hysterectomy, diabetes, cancer, etc her egg and the intended Father’s
spam are used to create an embryo that is ttransfered into and carried by surrogate
mother.
In Altruistic Surrogacy, it is used to describe the situation where there is no
formal contract or any payment or fee to the birth mother. It is an usually an agreement
between vey close friends or relative.
In Commercial Surrogacy, involves payment of hefty sum of money as income
to the surrogate for the service offered by her plus any expenses incurred in her
pregnancy and surrogacy is hereby looked upon as a business opportunity. 6
SURROGACY THE LEGAL AND ETHICAL DEBATE
Surrogacy has proved to be a boon for infertile couples. At the same time
increasing use of technology has also led to controversies and conflicting legal issues. A
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Ibid,2
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discussion on this debate is necessary to understand the argument underlying
surrogacy. Since the surrogacy as surrounded by controversies has been brought to
limelight by the leading surrogacy cases through out the world as well as arguments
made by legal scholars and commentators. Most the criticisms against surrogacy is
based on various ethical, moral, religious and legal grounds. The moral, ethical and
religious objections to surrogacy are based on the premise that the life is a creation of
God and human beings should not attempt to play God by interfering in the natural
processes. Another serious objection in this regard is, the fact that surrogacy procedure
involves repeated trials which use either male or female genetic material or the human
embryo. The wastage of human embryo is criticised as similar to murder because
according to some eminent scholars human life begins at fertilization.
There are also some legal objection to surrogacy strikes at the very root of the
procedure of surrogacy which is due to the need and requirement of a women to act as
surrogate. Various scholars have criticised surrogate motherhood, as it presents
intolerable risk to women, including physical risk, psychological risks and symbolic risk
such as objectification and commodification. Some of critics assert that the chances that
the surrogate will be psychologically harmed by the process are very high, analogizing it
to the psychological harms felt by birth mothers giving children up for adoption.
Further it is also criticised that surrogacy have focused on the notion that such
agreements reduce women to the value of their wombs.7
Fundamental Rights and Surrogacy
Procreation of child is always recognised as a basic requirement of every human being
who has a right to live, according to the Universal Declaration of Human Rights
(UDHR) Article 16(1) provides that any men and women of full age without any
limitation of any kind related to race or religion has a right to marry and start a
family. The similar right has been incorporated under our India Constitution under the
protection of Right to life and personal liberty. The word “personal Liberty” in Art.21 is
of the widest amplitude and it includes the “right to socialised” with members of family
and friends, subject of course , to any valid prison regulations which must be reasonable
and non-arbitray.The Indian Courts have many times included Right to Reproduction as
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a part of basic right that every person. One of the leading case in this regard is B.K
Parthsarthi vs Government Of Andhra Pradesh, 1974 SCR (1) 697 ,in which the
Andhra Pradesh High Court recognized the reproductive autonomy of an individual as
an aspect of his privacy. The same principle is applied for the justification of surrogacy
as the means to achieve the right provided by the constitution of our country. 8
SURROGACY WITH REFERENCE TO INDIA
India has become the favoured destination for childless couples across the world,
commercial surrogacy raised a host of moral, ethical as well as legal issues. Since many
nations do not recognise surrogacy agreements, India has become the popular
destination of fertility tourism. Infertile couples over the world travel to India where
commercial surrogacy is legalised. The commercial surrogacy was made legalised in
India with the landmark judgement and later, the Indian Council of Medical Research
Guidelines 2005 which prescribed conduct and use of ART bill legalised commercial
surrogacy by prescribing monetary compensation to the surrogate mother.
Summary of the Various Regulations With Respect To Legalization of
Surrogacy in India:
ICMR national guidelines on Regulation of ART, 2005 National Guidelines on ART
is an opportunity for parties in the wake of absence of any specific law governing and
regulating surrogacy. These are in the nature of norms and are mere guidelines to be
followed by parties to surrogacy transaction and by ART Clinics providing these
services. These guidelines are issued to regulate and supervise ART Clinics in India.
These guidelines were made by Indian Council of Medical Research in association or
with the assistance of National Academy of Medical Sciences under the head of National
Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India 2005.
Some of these guideline are:
1) ART Clinics should be registered, supervised and regulated by the States
Accreditation Authority. Any information about clients, Donors must be kept
confidential.
2) No treatment should be given without the written consent of the couple.
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3) The ART clinic must not be a party to any commercial element in donor
programmes or in gestational surrogacy.
4) A surrogate mother carrying a child biologically unrelated to her must register as a
patient in her own name.
5) While registering, surrogate mother must mention that she is a surrogate mother and
provide all the necessary information about the genetic parents such as names,
addresses, etc.
6) Surrogate mother must not use/register in the name of the person for whom she is
carrying the child, as this would pose legal issues, particularly in the untoward event of
maternal death.
7) The birth certificate shall be in the name of the genetic parents . The clinic, however,
must also provide a certificate to the genetic parents giving the name and address of the
surrogate mother.
8) All the expenses of the surrogate mother during the period of pregnancy and
postnatal care relating to pregnancy should be borne by the couple seeking surrogacy.
9) The surrogate mother would also be entitled to a monetary compensation from the
couple for agreeing to act as a surrogate; the exact value of this compensation should be
decided by discussion between the couple and the proposed surrogate mother.
15) Advertisements regarding surrogacy should not be made by ART clinic. The
responsibility of finding a surrogate mother, through advertisement or otherwise,
should rest with the couple, or a semen bank.
16) A surrogate mother should not be over 45 years of age. Before accepting a woman
as a possible surrogate for a particular couple’s child, the ART clinic must ensure that
the woman satisfies all the testable criteria to go through a successful full-term
pregnancy. Law Commission of India in its 228th Report, 2009 made certain
recommendations to legalize surrogacy by effective legislation which can cover all the
aspects of
Surrogacy and relationships arising out of surrogacy. 9
The Union Health Ministry has finalized the Assisted Reproductive Technologies (ART)
Regulation Bill, 2010 . Assisted Reproductive Technologies(ART, Regulation) Bill 2010
is an Act which provide a National frame work for the accreditations, regulation, and
supervision of assisted reproductive technology clinics, for prevention of misuse of
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Ibid 7
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assisted reproductive technology for safe and ethical practice of assited reproductive
technology services.10
The recent proposed draft Surrogacy Regulation Bill 2016, passed by the Health
Ministry, was cleared by the Union Cabinet on 24 th of August 2016 and is set to be
introduced in the Parliament soon.
CRITICISM
But the most important thing to understand right now is whether it is correct to
use some other person just to fully enjoy you right provided too you? The answer to this
question can be understood with the help of the present social structure of the woman
involved in the act of surrogacy, as against the popular norm that should be followed for
surrogacy i.e; altruistic surrogacy, most of the cases of surrogacy is commercial in
nature which involve a woman not related to parents in any circumstances, leave alone
the social background but the economic background of the surrogate mother is in no
case close to the real parents, in such circumstances chances of voluntary surrogacy is
very low as there is no motive behind such surrogacy except the monetary benefit
which the surrogate mother gains from the whole act. One cannot expect that a woman
living under such economical deterioration can opt for surrogacy except under the
influence of money to be received for carrying the children, looking at these
circumstances we can say that commercial surrogacy in no way be accepted as
constitutionally valid due to the pressure under which it is working, Another problem
with the whole process of surrogacy is the role of infertility clinics which works as a
middleman between the prospective parents and the surrogate mother ad take a large
chunk of money which should go to the surrogate mother for carrying the child, in fact
only a very small amount of money is received by the surrogate mother for carrying the
baby Lack of any proper laws to control the profession of surrogacy can lead to grave
injustice with the women who are involved in surrogacy just for the purpose of
providing a good life and financial stability for their family. This is the main snag in the
whole process of legalizing commercial surrogacy and until any straight jacket formulae
is developed for the regulation and protection of women involved in surrogacy. Another
problem associated with Surrogacy for foreign couple is the chances of Human
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Trafficking through surrogacy, commercial surrogacy converts surrogacy which falls
under Article 23 of the Constitution of India involving these children in illegal activities
like prostitution and human organ trafficking, presently there is no procedure
established by the legislature to check the validity and verification of parents and what
their background is, any two persons projecting themselves as parents can go for
surrogacy and India and with very minimal procedure can take the child outside India.
These loopholes in the present procedures are not sufficient to deal with the issues and
hence it is not the right time to validate the commercial surrogacy at most surrogacy in
the form of altruistic can be permitted so as to help the childless couples in fulfilling
their dream.11
Recommendations
The proposed law/legislation dealing with surrogacy must be certain, effective, clear
and must define rights & obligations of the necessary parties. Legislature cannot turn
its blind eye, thereby leaving it for judiciary to deal with such unforeseen situations of
surrogacy. There should be a Strong regulatory framework, a “Surrogacy Bill” which
shall regulate as well as facilitate surrogacy transaction: in following ways13:
1. Recognizing or validating Surrogacy contract as a special contract
2. Prescribing qualifications for parties involved (Commissioning parents and Surrogate
Mother) and mode of selection of Surrogate mother.
3. Regulating & prescribing medical operations involved in surrogacy
4. Recognition of ART Clinics (Prescribed & Appropriate Surrogacy Centers) including
5. Government recognized Surrogacy Counseling Services (Medical & Legal
counseling)
6. Definition of relations of parties involved: Surrogate Mother, Surrogate Child and
Commissioning Parents.
7. The legitimacy of the surrogate child and its citizenship.
CONCLUSION
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Ibid 7
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The present form of surrogacy prevalent in India is suffering from many
loophools and is not sufficient to deal with various issues coming from surrogacy. It is
correct that every person has a right to start a family and surrogacy is one such way
through which infertile couples can fulfill their dreams but it is not accepted that just to
fulfill their dream life and health of another person has to suffer so much. One of the
anomalies suffered by the surrogacy practices in India is the lack of any post and pre
pregnancy counseling of the surrogate so as to make sure that the surrogate mother is
fit, both mentally and physically to carry a child for another person, this counseling is
also necessary to make sure that the consent is free from any kind of influence and the
act is a voluntary act of the surrogate mother because every women have the right to
lead a free and fearless life. It is the duty of our civilised society not to compel her at any
means.
