SURROGACY: A CRITICAL ANALYSIS

SURROGACY: A CRITICAL ANALYSIS

Author:- EMMANUEL AMARFIO MENSAH, A STUDENT AT GALGOTIAS UNIVERSITY, GREATER NOIDA-UP

There is a Jewish proverb that states that God could not be everywhere so he made mothers. Over a couple of centuries, the desire to beget a child for an infertile couple was being satisfied by adoption. But modern sciences have provided new opportunities or options we can say to overcome adoption, that’s surrogacy which has resulted as a boon for those childless couples who want their child. This blog talks about the surrogacy concept, types of surrogacies, legal framework related to it, judicial responses, and laws governing surrogacy in India. 

In a nation like India, surrogacy has strengthened a new degree of growth in the scientific area where a mother of another womb helps another mother to help her in being a mother who, for whatever reason, is unable to have a kid. The Latin term surrogates, which means a replacement, is the ancestor of the word surrogate.

TYPES OF SURROGACY

Surrogacy is classified on two bases:

1) based on Genetic Relationship:-

(a) TRADITIONAL SURROGACY: In traditional surrogacy, the intended father or a sperm donor artificially inseminate the surrogate mother. Because she utilized her eggs, the child's biological mother is also the surrogate mother. As a result, the surrogate mother and the intended father or sperm donor are genetically related to the child. However, the intended parents must take custody of the kid when the surrogate mother relinquishes her parental rights.

(b) GESTATIONAL SURROGACY:  In the case of gestational surrogacy, in vitro fertilization (IVF) is used to generate the embryo. The intended couple's eggs and sperm or those from a donor are utilized in the IVF process. The surrogate mother's uterus receives the embryo after it has been developed. In this instance, the biological mother is not the surrogate. Genetically, the child is connected to those who donated their sperm and eggs.

 

2) based on Payment:-

(a) COMPENSATED/COMMERCIAL SURROGACY: Commercial surrogacy is when the surrogate mother receives compensation in addition to the intended parents' medical costs, other necessary expenses, and insurance coverage for carrying the child. Additionally, it covers the procurement and sale of human embryos for surrogacy.

(b) ALTRUISTIC SURROGACY: Altruistic surrogacy is defined as the practice of using a surrogate mother without expecting money in exchange for anything other than covering the intended parents' medical costs, other necessary expenses, and insurance costs. A close family member or a friend typically performs it.

CONCEPTUAL ANALYSIS 

In India, the idea of having a child who is not biologically connected to her is not a novel one. It has been around in India since the ancient era. Surrogacy has been practiced since ancient times, even though Indian society hasn't always been accepting of the concept.  The roots of surrogacy can be traced back to the mythological times.

In the Mahabharata, Gandhari, the wife of Dhritarashtra, conceived, but the pregnancy dragged on for over two years before she gave birth to a semi-solid mass. In the mass, Bhagwan Vyasa discovered 101 normal cells. These cells were cultivated in vitro for the entire time while being placed in a nutrient-rich medium. 100 of these gave rise to male children (Duryodhana, Duhshasana, and other Kauravas), and one to a girl kid named Duhsheela.  Also during the seventh pregnancy of Lord Krishna’s mother, Devki, the embryo was transferred to the womb of Rohini, the first wife of Vasudeva to save him from being killed by Kansa.

LEGAL FRAMEWORK RELATED TO SURROGACY 

In early December 2021, the Indian Parliament enacted two legislation that became landmark acts:   “the   Assisted   Reproductive   Technology   (Regulation)   Act and the   Surrogacy(Regulation) Act. Previously, the Surrogacy (Regulation) Bill was passed in the Lok Sabha but not in the Rajya Sabha, which assigned it to a Parliamentary Standing Committee for discussion.”

The Indian Council of Medical Research Guidelines, 2005

These guidelines were drafted to regulate the conduct of the Assisted Reproductive Technology clinics that provide surrogacy treatments in India. This guideline outlined how fertility clinics should employ Assisted Reproductive Technology (ART) operations or treatments. 

The Assisted Reproductive Technology Act, 2021

 In its 228th report in 2009, the Law Commission advocated the passage of laws to assist the Proper use of ART and the legalization of surrogacy. In this context. Parliament approved the “Assisted Reproductive Technology (Regulation) Act, 2021” on December 8, 2021, which obtained the President's assent on December 18, 2021. The Act’s goals include the regulation and oversight of ART clinics and assisted reproductive technology banks, the avoidance of abuse, and the safe and ethical provision of ART services. In India, surrogacy is allowed for married couples who have Indian citizenship. However, in the case of Assisted Reproductive Technology Act(ART), it is available to all married couples, live-in partners, and single women.

The Surrogacy (Regulation) Act, 2021

This Bill was passed in early December of 2021. Some of the key features of the Act include the following-:

1. All clinics conducting surrogacy services and facilities must register under this Act, and all practitioners working in those clinics must meet the requirements outlined in this law.

2. Within 60 days after the competent authority's appointment, any facility that provides surrogacy treatments must apply for registration. Renewal of registration is required every three years. 

3. Commercial Surrogacy is prohibited only Altruistic Surrogacy is permitted.

4. By Indian law, the couple desiring a child, must be legally married. The age range for the female should be 25 to 50 years, while the age range for the man should be 26 to 55 years. Another crucial condition is that they should not already have any biological, surrogate, or adopted children.

5. The surrogate mother, who is the one giving this service, must be 35 to 45 years old. In her lifetime, a woman is only permitted to serve as a surrogate mother once. 

6. A "Certificate of Essentiality/Infertility" must be given by the National/State Assisted Reproductive Technology and Surrogacy Board to an intended couple who has a surrogacy necessity due to a medical condition.

7. Any couple who adopts a child through commercial surrogacy is subject to a fine of up to 50,000 rupees and a 5-year imprisonment under this Act. Additionally, if the same offense is done more than once, the fine increases to 1 lakh, and the punishment is extended to 10 years in prison. A maximum penalty of ten years in prison and a fine of Rs ten lakhs are available for anyone proven to be involved in the exploitation of surrogate mothers or children born via surrogacy.

JUDICIAL RESPONSES RELATED TO SURROGACY 

 Jan Balaz v Anand Municipality

In this case, a German couple hired Marthaben Immanuel Khrishti as a surrogate mother, and she gave birth to twins. The twins of this German couple who formerly worked in the UK now require an Indian passport to travel. The passport officials did not issue passports to the twins since they did not have citizenship because the process required legal litigation. Moreover, surrogacy was not legal in Germany. Although the Supreme Court refused to issue the children with passports, it did give them exit permission, allowing them to be adopted and stand for their rights in Germany.

Baby Manjhi Yamada v Union of India

In this case, a Japanese couple, Dr. Ikufumi Yamada and his wife, traveled to India to hire a surrogate mother to conceive a child. Then, in Gujarat, where this practice was invented, they hired an Indian woman to serve as their child's surrogate mother. The couple had filed for divorce as a result of various marital issues. However, the father wished to be the child's guardian, but under Indian law, a single father is not permitted to adopt a girl child. Therefore, in this case, the Supreme Court's justices Arijit Pasayat and Mukundakan Sharma assign the girl's grandma custody of the kid. Therefore, it was decided in this instance that the nation needs to have Surrogacy regulations that are regulated.

CONCLUSION & SUGGESTION

Surrogacy has existed in both ancient and modern times; evidence may be found in the Mahabharata, the Bhagwat Puran, and other holy books to grasp the essential premise of surrogacy. A detailed rule governing surrogacy regulation, protecting surrogate mothers, and safeguarding the interests of children born through surrogacy in India must be implemented as the country's surrogacy field grows rapidly. Because there are inadequate regulations, it is possible for surrogate mothers and adoptive parents to be exploited, and commercial agencies and arms dealers profit from this. Despite the widespread challenge, the Surrogacy Regulation Act 2021 has prohibited certain individuals from choosing surrogacy, including gay couples, single men, and members of the LGBTQ Community. Suggestions to overcome this issue are as follows:

1. Surrogate mothers must receive medical care even after giving birth for three months; there needs to be a clear structure in place in India to regulate surrogacy.

2. There should be provisions for both surrogate mother and child.

3. If a child is born in India he should be given Indian citizenship.

4. The government ought to implement specific programs and activities for surrogate mothers.

5. The couples would still be the legal parents of the surrogate child even if they divorce before the child is in the womb of the surrogate mother.

6. An effective system for surrogacy regulation in India is required.

At last, I will end up by quoting "The greatest good is what we do for one another."