POLITY

Surrogacy

Introduction

Surrogacy is an important method of assisted reproductive technology wherein a woman carries pregnancy for another couple. In vitro fertilization is used to ensure that women who are not able to carry pregnancies, as well as gay couples, and single men can experience parenthood.

The earliest known description of surrogacy is claimed to be the servant Hagar begetting a child for the childless Sarah through her husband Abraham, described in the biblical Book of Genesis. Surrogacy also finds mention in the Bible and Hindu mythology.

Arguments in favour of Surrogacy

For the intended Parents

It allows infertile couples, single people and members of the LGBT community to become parents when they may not be able to have children otherwise.
In case of gestational surrogacy, both parents can be biologically related to the child.
Those who cannot adopt due to agency restrictions on factors like age can still pursue surrogacy.
It provides them with a more sense of control during the pregnancy, as compared to other fertility methods and adoption.
They can be more involved in the pregnancy process.
Long lasting bonds can be formed between the people involved in the process.

For the Surrogate

Personal satisfaction and pride in providing life-altering help to another family.
The surrogates receive exemplary health care and counseling services.
In cases where financial compensation is provided, the money can be used by the surrogate to achieve her goals in life.
Long lasting bonds can be formed between the people involved in the process.

Disadvantages of Surrogacy

For the intended Parents

It is an expensive process; more so if it is a compensatory commercial surrogacy.
Issues of trust and responsibility may arise with the surrogate during the pregnancy.
Surrogacy is a complex process both medically and in terms of surrogacy laws, which can be overwhelming for both the intended parents (and also the surrogates).

For the Surrogates

Surrogacy is physically demanding and time-consuming; requires long-term commitment.
Surrogates may face emotional challenges, especially in cases of traditional surrogacy.
All risks associated with pregnancies apply in this case as well.

General Issues

Children born through international surrogacy are vulnerable to breach of their rights due to an international regulatory vacuum.
The practice may amount to sale of children.
International surrogacy practice involving surrogate mothers from emerging economies entails power imbalances and risks.
Lack of surrogacy regulation in some countries leads to exploitation of surrogates.

International Position on Surrogacy

The UN Special Rapporteur submitted a report on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material in July 2019. It included a discussion on protection of rights of children born from surrogacy.
Recommendations of the UN Rapporteur Report, 2019:
Related to safeguarding sale of children born through both commercial and altruistic surrogacy.
Strict regulation of all intermediaries
Involving the court into the final determination of post-birth best interests of the surrogate child.
Since 2011, the Permanent Bureau of the Hague Conference has been studying private international law issues in relation to the legal parentage of children, including questions emanating from international surrogacy arrangements.

Distribution of surrogacy laws across the world:

Countries vary with regard to specific rules regarding who is eligible for surrogacy based on nationality, sexual orientation etc.
There are some countries like Cyprus and Czech Republic who do not provide surrogate but perform medical procedures of embryo transfers.

Surrogacy in India

Commercial surrogacy was estimated to be a $2.3 billion industry annually before it was banned by the government in 2015.
A study conducted in July 2012, backed by the UN, put the surrogacy business at more than $400 million with more than 3000 fertility clinics all over the country.

Timeline of Developments

India legalised commercial surrogacy in 2002; led to growth of surrogacy and allied industry.
The same year, Indian Council of Medical Research (ICMR) laid out Guidelines for surrogacy, which made the practice legal, but did not give it legislative backing.
In 2005, the government approved the National Guidelines for the Accreditation, Supervision and Regulation of ART Clinics in India, 2002.
The 228th report of Law Commission in 2009 recommended for prohibiting commercial surrogacy and allowing ethical altruistic surrogacy by enacting suitable legislation.
The government banned surrogacy by foreign homosexual couples and single parents in 2013.
The Assisted Reproductive Technology (Regulation) Bill was formulated in 2008 and 2014 but could not be tabled on both occasions.
In 2015, the government banned commercial surrogacy in India and permitted entry of embryos only for research purposes.
The Surrogacy (Regulation) Bill, 2016 was passed by the Lok Sabha in December 2018. However, the Bill lapsed due to non-introduction in Rajya Sabha.
The same bill was re-introduced as the Surrogacy (Regulation) Bill, 2019 was passed by the Lok Sabha in August 2019.
Rajya Sabha referred the bill to a select committee which presented its report in February 2020. The Union Cabinet accepted all recommendations and approved the bill; it now awaits passage.

Important judgment

While the Baby Manji Yamda v. Union of India case in 2008 was about obtaining travel documents for a surrogate baby with Japanese parents but born in India, the Supreme Court made an observation that commercial surrogacy as a positive practice is legal in India.

Constitutional Underpinnings

The personal decision of a single person about the birth of a baby through surrogacy is called “the right of reproductive autonomy” which can be inferred to be a facet of the right of privacy guaranteed under Article 21 of the Constitution.

Legislation

Surrogacy Regulation Bill, 2019

The Bill prohibits commercial surrogacy (and sex selection for surrogacy), but permits altruistic surrogacy.
Surrogacy is permitted in cases of: intending couples who suffer from proven infertility; altruistic; not for commercial purposes; not for producing children for sale, prostitution or other forms of exploitation; and for any condition or disease specified through regulations.
Proven infertility, Magistrate court order for custody of surrogate child, and insurance coverage for 16 months for care are required as certificate of essentiality.
To be eligible for becoming surrogate parents, the couple should be Indian, married for 5 years and in the age group of 23 – 50 years for wives and 26 – 55 years for husbands, and have no child of their own (except in cases of physical or mental disability, terminal disease).
The surrogate must be between 25 – 35 years, married with child/children of her own, and a close relative of the intending couple.
An abortion of the surrogate child requires the written consent of the surrogate mother and the authorization of the appropriate authority as well as compliant with MTP Act, 1971.
National and State Surrogacy Boards will be set up. The bill also provides for an Authority to register and regulate clinics, enforce regulations and recommend modifications.
It prescribes punishments for various offences related to the surrogacy process including exploitation of surrogate, abandoning or disowning the surrogate child and practice of commercial surrogacy.
Issues with the Bill:
- The definition of infertility is restricted to inability to conceive and does not take into account other medical conditions in which while the mother may be able to conceive, but unable to carry the child during pregnancy.
- Silent on LGBTQ parents without children.
- Review and appeal procedure for surrogacy applications has not been specified.
The intending couple does not have a say in decision to abort the child.

Rajya Sabha Select Committee Recommendations

A surrogate mother need not be a “close relative”, and only “willing”.
The five-year time limit before seeking surrogacy should be removed.
Single women (widow or a divorcee and Persons of Indian Origin) should be allowed to avail surrogacy.
Insurance cover for the surrogate mother should be increased from 16 to 36 months.
The definition of ‘infertility’ should be deleted as 5 years is too long in terms of waiting period to have a child.
The order regarding the parentage and custody of the child, issued by a Magistrate, shall be the birth affidavit for the surrogate child.

Related Legislation

The Assisted Reproductive Technologies (Regulation) Bill (ART) – which is awaiting Cabinet approval – primarily deals with technical, scientific and medical aspects, including the storage of embryos, gametes, oocytes, etc. as contained in the Surrogacy Bill.

The Way Forward

An international law regarding surrogacy and protection of children born from surrogacy should be instituted through a consultative and inclusive framework.
Countries which allow surrogacy should develop human rights-based norms and standards to prevent abuses and violations.
LGBTQ persons and same-sex couples should also be allowed to avail surrogacy.
Since commercial surrogacy has its roots in poverty and deprivation, the government should go beyond only prohibiting it and take steps to improve the standard of living of the poor and vulnerable sections in the country.