Wisdom Crux

Surrogacy – “Hope for a few”

Posted on by Admin

[Volume 2, Issue 6] – June, 2017

Author – Madhu Khatri, B.B.A.LL.B, Bharati Vidyapeeth Deemed University, New Law College, Pune

ABSTRACT

Surrogacy in India is not properly regulated. It is an arrangement in which a women who acts as surrogate carries and delivers child of commissioning parents. The present study seeks to address the issues in existing surrogacy laws in India, by analysing the new surrogacy bill passed by Union in August 2016 which seeks to impose a complete ban on commercial surrogacy. Further it includes the lacunas in the present bill, its impact over the society and gives suggestions on how it can be regulated in a better way without imposing a complete ban over surrogacy industry.

Keywords – surrogacy, Surrogacy Bill 2016, commercial surrogacy, ban, regulate.

INTRODUCTION –

To procreate life is the most beautiful creation that is gifted by nature to a woman and every woman wants to have this pleasing gift as a family is incomplete without a child. Every couple has an immense desire to beget a child and have their own offspring. But sometimes due to a biological disability a woman is not able to get the joy of motherhood. Many couples face a breakdown of their marriage as in the form of bigamous marriage, spouse abandonment and woman particularly is disguised by the relatives and ridiculed in the society due to such disability.  Surrogacy is a “light of hope” for such couples who are in a dire need to have children and are suffering with such biological disability. Surrogacy means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth((The Surrogacy Bill, No. 257 of 2016, available at http://www.prsindia.org/uploads/media/Surrogacy/Surrogacy%20%28Regulation%29%20Bill,%202016.pdf)). This practice has been going on all over the world and especially in India World’s second and India’s first IVF( In Virto Fertilization) baby Kanupriya alias Durga was born in Kolkata on Oct. 3, 1978((Surrogacy Laws India, (Apr. 5, 2017, 12:27 PM), available at http://surrogacylawsindia.com/index_inner.php)). Commercial surrogacy was legalised in 2002. India is known for its tourism for reproduction, mainly for two reasons – the surrogacy costs in India are comparatively less than the developed countries like USA. The costs for surrogacy in India ranges from $2,500 to $7000 which is 1/3rd of the costs of developed countries.((228th Law Commission Report, Need for legislation to regulate Assisted Reproductive Technology Clinics as well as rights and obligation of parties to a surrogacy, available at http://lawcommissionofindia.nic.in/reports/report228.pdf  last seen on 5/04/2017)) Another reason being that legal framework is favourable in India.

Baby Manji((Baby Manji Yamada v. UOI and Another(2008) 12 SCC 518)) case derived attention to pay a heed on the regulation of commercial surrogacy in India. The Law commission of India in its 228th report made recommendations for a Legislature to regulate assisted reproductive technology clinics and rights and obligation in relation to Surrogacy.((Supra3)) Subsequent to it, the ART (Regulation) Bill 2010 was drafted and later The Surrogacy Bill 2016.

  • WHY SURROGACY EMERGED RAPIDLY –

The concept of begetting a child can be drawn from the very history in Mahabharat, Gandhari did not deliver a child, rather delivered a semi solid material which was divided by Maharishi Vyas into 100 pieces, and planted them in different pans/pots. Thus, 100 Kauravas were born. They may be described as the first test tube babies((Hon’ble Dr. Justice Balbir Singh Chauhan, WOMEN, LAW AND MORALITY,Bharati Law Review, 21[2013])). The innovative progressions in the field of human multiplication and therapeutic science created different strategies, for example, Artificial Insemination, In-Virto Fertilization, Surrogacy, Gamete Infra- Fallopian Transfer, Zygote Infra-Fallopian Transfer, Reproductive Cloning and so on. These innovations are known as Assisted human Reproductive Technologies and have helped those couples who are not able to conceive a child because of barrenness or, therapeutic inconveniences, natural restriction of same sex couple, danger of transmission of hereditary malady and so forth. Among all the processes the major benefits of surrogacy when compa d to other forms of ART is Genetic Link between parent and child as the child is linked at least one of the parent. Most of the couples wish to have transmit their own genetic heritage as consaniguity is considered as a significant aspect in every culture moreover the parents want that their child should have the family traits, resemblance and thus the traditional option of adoption is not taken by the parents although surrogacy being expensive, Prevention of Hereditary Disease, Overcoming medical risks((Dr. Aneesh V. Pillai Surrogate Motherhood and the Law)). These advances proved to be a boon for the couples who are not able to conceive a child but were also followed by various social, legal, ethical and moral issues which make it mandatory for surrogacy practices to be regulated through legislation.

CURRENT LAYOUT: A Foundational change in 2016 –

After various drafts bills like ART bill 2008, 2010, 2014 now the Surrogacy Bill looks to defeat the lacunas of earlier draft Bills. The Key features of new Surrogacy Bill 2016((Surrogacy Bill gets cabinet nod, The Hindu (8/20/2016) available at,  http://www.thehindu.com/news/national/cabinet-clears-surrogacy-bill/article9025848.ece, last visited on 8/9/2016 at 5:37 pm))–

  • Imposes ban on Commercial surrogacy and allows only “close relatives” to act as surrogate mother – The Bill sweeps all commercial transactions which are done under surrogacy agreements. Only close relative who is an ever married women can become surrogate and no fee or other incentives will be given expect for medical expenses and insurance coverage in case of illness, loss, damage or death of surrogate.
  • Establishes Regulatory body – It establishes a National Surrogacy Board at Centre chaired by Heath Ministry and State Surrogacy Board or Union Territory Surrogacy Board.
  • Prohibits the abandonment of child by the intending parents – The bill does not allows couple to abandon the child in any circumstance even if the child is born abnormal or any other defects, it will be deemed to be a biological child of couple.
  • Surrogacy clinics should be registered – The Surrogacy clinic can only be established after approved by appropriate authority that has the power to grant or cancel a registration.
  • Prohibition on abortion except in some conditions provided – No one can force the surrogate mother to terminate the pregnancy at any point of time.
  • Surrogacy only available to married couples who are citizen of India. – The earlier ART Bill 2010 provided any foreigner, foreign couple or non- resident Indian individual or a couple can seek for surrogacy in India but against the conditions applied that there must be a local guardian in India who will be responsible for the surrogate mother. The Surrogacy Bill prohibits the same and allows only Indian married couple to opt surrogacy after five years of marriage.

LACUNAE IN THE BILL –

  • A complete ban on commercial surrogacy –

India is considered as hub of surrogacy as it has been attracting medical tourism after legalization of commercial surrogacy. The actual number of surrogacy clinics in India is unknown, but as of 2008, one study estimated that about 3,000 were in operation and another estimated that there was a thirty percent annual growth rate as a result of the promotion of medical tourism by the Indian government((Allison Bailey, Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy, 26 HYPATIA 715, 717 [2011])) and till today the industry has been increasing rapidly. If The Surrogacy Bill 2016 turns into a demonstration this surrogacy industry which produces a considerable measure of income for Indian government and helps the poor uncommonly will grind to a halt.  In commercial surrogacy the surrogate gains financial help not only with respect of pregnancy related expenses but a fee for carrying and giving birth to the child. According to Nayna Patel, medical director of Akansha Infertility clinic in Gujarat states benefits of commercial surrogacy –

“A woman who becomes a surrogate is paid more money than she could earn in her entire lifetime. She is doing something that she believes is good and makes her proud—bearing a child for a couple desperate to start a family, while at the same time providing for her own family…It is easy for people in India and abroad who have never experienced infertility or poverty to say this is exploitation. But we are providing a service that profoundly changes people’s lives for the better”((Kari Points, Commercial Surrogacy and Fertility Tourism in India: The Case of BabyManji, Case, available at https://web.duke.edu/kenanethics/CaseStudies/BabyManji.pdf)).

The government mainly seeks to impose a complete ban on commercial surrogacy by imposing fine of Rs. five lakh and imprisonment for five years extending to ten lakh and ten years in case of subsequent offence in order to promote the best interest of child as under commercial surrogacy agreement child is treated as a commodity.((Surrogate Motherhood: A violation of Human Rights, European centre of law and justice available at http://www.ieb-eib.org/en/pdf/surrogacy-motherhood-icjl.pdf [last visited on 04/13/2017]))

 Commercial surrogacy is illegal in various countries like United Kingdom, France, Germany etc. Japan prohibited commercial surrogacy in consistence with the roman lawful adage “mater semper certaest” which means the “mother is always certain” enshrined under Japanese Civil Code, 1896((Wikipedia, Mater semper certaest, Wikipedia, the free encyclopedia, available at https://en.wikipedia.org/wiki/Mater_semper_certa_est  [last visited on 04/05/2017])). These countries are developed unlike India which is still a developing country where most of the people are deprived of basic amenities, Surrogacy is a boon for them, the women particularly have a belief that by helping such parents who cannot beget a child they receive their blessings and they are doing a noble work, simultaneously financial help that they get helps to run their family, get their children educated, and lead a better life, serving their purpose as well as the other party’s purpose and hence a win- win situation for both. The women should have freedom to be a surrogate mother and to earn for the upliftment of her family else it would violate the right to trade enshrined under Article 19(1) g of the Indian Constitution. The Surrogacy Bill seeks to evacuate exploitation and other abuses by banning commercial surrogacy overlooking the desires of such women who  happily and willingly without any coercion wants to become a surrogate mother so that they can ensure a better life for their children, The Surrogacy Bill 2016 puts restrictions over such women. Isn’t their freedom taken away? It is not necessary that a ban on commercial surrogacy will shut down all kinds of abuses and exploitation. Banning such a large industry might necessarily not be fruitful instead can further push the industry underground and result in illegal activities and exploitation that will go unreported.((Snigdha Basu, Don’t ban commercial surrogacy, regulate it, say experts, NDTV, available at, http://everylifecounts.ndtv.com/dont-ban-commercial-surrogacy-regulate-it-say-experts-9610 [last visited on 04/05/2017]))

  • Restricting the scope of “Intending couple” –

The surrogacy bill 2016 classifies and distinguishes on the basis of nationality, sexual orientation, conjugal status and afterward in like manner prohibits or permits surrogacy. The bill allows only Indian citizens to be the intending couple, restricting the foreigners including, Non Resident Indians (NRI), Person of Indian Origin (PIO’s), gays, live-in partners and homosexuals to opt for surrogacy. Further the Indian couple needs to meet the following conditions((New surrogacy bill bars married couples with kids, NRI’s, Gays, live-ins, foreigners, Express News Service, available at, http://indianexpress.com/article/india/india-news-india/surrogacy-bill-sushma-swaraj-married-couples-can-now-opt-homosexuals/ [last visited on 4/14/2017])) –

  1. The couple should be legally married for at least five years
  2. The age of intending couple for female should be between23-50 years and male 26-55 years.
  3. The couple should not have any surviving child, biological, adopted or born through surrogacy except in case the child they have is mentally or physically challenged or suffering with incurable disorder.

Thus, on one hand the bill completely restricts the foreign couples and on the other hand lays down very stringent rules for the Indian couples who are infertile to opt for surrogacy.

Right to Procreate –

Article 23 of Convention on rights of persons with disabilities, 2006((Supra7)) specifically recognized the right to reproductive and sexual health as a human right, Article 12 of Convention on the Elimination of All forms of Discrimination against Women, 1979 (UN.CEDAW)(( UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, Vol. 1249 at 13, available at, http://www.refworld.org/docid/3ae6b3970.html, [last visited on 03/11/2017])) offers protection of women’s reproductive rights. Surrogacy falls under scope of right to family formation, which is a facet of right to life as guaranteed under the constitution and various International Human right convention. Supreme Court in various precedents recognized that reproductive right of individuals is a basic right. In B.K Parthasarthi v. Government of Andhra Pradesh((2000 (1) A.L.D. 199:1999 (5) A.L.T 715)), “the right to reproductive autonomy” of individual was stated as an aspect of “right to privacy”. Similarly the U.S Supreme court in Jack t. Skinner v. State of Oklahoma((316 U.S. 535 [1942]))stated right  to reproduce as “ one of the basic civil rights of man”. The Supreme court of India in Suchita Srivastava & Another v. Chandigarh Administration(([2009] 9 S.S.C.  1))has upheld the right of women to make reproductive choices is a dimension of, `personal liberty’ under Article 21 of the Constitution of India”. It can be thus stated that right to procreation is a basic human right. Therefore drawing such arbitrary distinctions on grounds of conjugal status, nationality, sexual orientation doesn’t agree to essential human rights.

The legislation of various nations provides for surrogacy to homosexuals without any discrimination. In Elisa B.v. Superior Court(([2005] 37 C.4th 108, 33 C.R.3d 46, 117 P.3d 660))a lesbian co-parent was held as a lawful parent of the child born through surrogacy. The United Kingdom (UK), The Human Fertilization and Embryology Act, 1990( HEFA)((United Kingdom, Human Fertilization and Embryology Act 2008, See Ch. 22, available at: http://www.legislation.gov.uk/ukpga/2008/22/contents  [last visited on Mar.25, 2017])), California Surrogacy law 2013((California legislative information, Assembly Bill No. 1217, Ch. 466AB-1217 Surrogacy agreements (20112012), available at: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB1217   [last visited on Mar.25, 2017])), states that “ persons seeking to undergo assisted reproduction shall not be discriminated on grounds of sexual orientation or marital status. The Surrogacy Bill which heavily borrows from the UK laws on Surrogacy explicitly bars the couples to undergo surrogacy if they are not Indian citizen, married or not heterosexuals, violating the basic human rights of such people.

The World Health Organisation (WHO) estimating that 13- 19 million couples are infertile in India((Neetu Chandra Sharma, “Most IVF clinics in Delhi are operating without any registration”, India Today, New Delhi, Apr. 26, 2015, available at http://indiatoday.intoday.in/story/in-vitro-fertilisation-clinics-registrationdelhi/1/432185.html [last visited on Mar. 11, 2016])), contrary to which, the bill sets down nonsensical conditions upon the Indian wedded couples expressing that the couples should be married for at least five years. If a couple has discovered in the very first year of their marriage that they are infertile and want to go for surrogacy such couple will have to sit tight for a long time which is a torment for them. It makes surrogacy as the last resort to such couples after availing all the costly ART techniques available which are not affordable by everyone thus making such poor or middle class family left with no alternative but to wait for five years which is a very long term which can prompt clashes between the couples, expansion in separation rates, suicides because of ceaseless insulting by the family or relatives.

 In this way, there is requirement for re examination Surrogacy Bill in light of the dynamic human rights law in order to empower access to surrogacy for all in consistence with Basic Human Rights without any such arbitrary classification on the basis of nationality, conjugal status or sexual orientation.

  • Who can be a Surrogate Mother–

Each and every woman should have the privilege to act as a surrogate for another which can be traced to right to personal liberty, privacy, property right over body and right to enjoy advantages of advancements in science and innovation((Dr. Aneesh V. Pillai, Surrogate Motherhood and the Law)). Section 4 (iii) (b) lays down the eligibility criteria to act as surrogate mother –

  1. Marital status – Unmarried girl cannot act as a surrogate mother and only an ever married women is allowed to be a surrogate including Divorcees and widows
  2. Close Relative – The women has to be a close relative of the intending couple.
  3. Age limit – Women acting as surrogate must be between the age of 25- 35 years.
  4. Earlier experience – the Bill makes it mandatory for a woman to have her own child before becoming a surrogate.
  5. Maximum Limit – A woman is only allowed to act as a surrogate once in her lifetime. Earlier the maximum limit was five times provided by the ART bill 2010.

Permits only Altruistic Surrogacy –

Acting as a surrogate mother is not an easy task it needs both physical as well as mental strength. Various countries allow only altruistic surrogacy like, UK, Canada, US, and now India proposes the same. Under both commercial and altruistic surrogacy women is reduced into a container. Altruistic surrogacy is not without critics, In US the child custody case involving altruistic surrogacy, some women claims that they were forced by their relatives to become surrogate. In Canada, UK surrogate mother is only reimbursed for expenditure on providing of a receipt, surrogates often get around this by claiming “long holidays in abroad and various other demands”((Kajsa Ejis Ekman BEING AND BEING BOUGHT)). Even in countries where altruistic surrogacy is permitted the foreign couples come to India as they are unable to find a relative willing to be surrogate mother for free without any compensation.

The term “close relative” is ambiguous –         

In various cases the mother of infertile daughter acts as surrogate for the daughter and gives birth to her grandson, such kind of arrangement can be criticized as it leads to incestuous relationships as well as amounts to degrees of prohibited relationships. In countries like UK, Canada, India marriages are not allowed between prohibited degrees of relationships. In India, begetting a child from such prohibited relationships or Sapinda relationship under Section 3 of the Hindu Marriage Act can raise to various social issues. However the surrogacy bill 2016 automatically removes such practices by restricting the age limit of surrogate mother and therefore a mother or mother-in- law cannot act as a surrogate. But apart from this the surrogacy Bill does not clearly states who all can be close relative. A close relative may be within the prohibited degree of relationship. Therefore, the term close relative is open to various interpretations. Finding a surrogate within the family might be a troublesome task and the couple might feel reluctant. According to Dr. Kaberi Banerjee((Supra)), a fertility specialist says, the couples do not even want to discuss such problem with their relatives or friends except for their parents but not the extended family as they apprehend the social stigma they might face. In today’s time most of the families are nuclear and they don’t have many relatives such nuclear families will likewise confront a great deal of trouble in finding surrogate within the family. The bill excludes practical and social aspects prevailing in the Indian society and thus is not favorable to all such infertile couples.

Consent of the husband –

The ICMR((Available at, http://icmr.nic.in/art/Chapter_3.pdf , [last visited on 4/13/2017])) guidelines specifically states that the women can undergo surrogacy only after the consent of the husband because artificial insemination without the husband’s consent can lead to adultery and can be a ground for divorce. The new bill is silent on consent of the husband before acting as a surrogate mother, such a consent will obviously not required by  divorcees and widows seeking to be surrogates.

  • Maternity Relief to Surrogate mother as well as the Biological mother –

The Maternity Benefit Act 1961, regulates the employment of women during the period of child birth, and provides maternity benefits. In the recent judgment of Amisha Girish Ramchandani v. Divisional Manager (Personnel Branch) Mumbai CST & ors((Available at, https://drive.google.com/file/d/0BzXilfcxe7yuQzZ4M21ITndhYUk/view , [last visited on 4/13/2017]))after considering Rule 551 (c) and (e) of Child Adoption and Rules held that maternity leave is available to the women who attained motherhood thorough surrogacy procedure. Later in sync with the judgment of High Court The Maternity Benefit (Amendment) Bill, 2016 was introduced Rajya Sabha on August 11, 2016 which seeks to amend the Maternity Benefit Act, 1961 and provide Maternity Reliefs of 12 weeks to a women who adopts a child below three months of age or a commissioning mother which is defined as a biological mother who uses her own egg to have a surrogate child. The period of 12 weeks is calculated from the date when child is handed over to commissioning mother.

The Maternity Benefit Act, 1961 as well as the amendment bill 2016 is silent about the reliefs available to the surrogate mother since altruistic surrogacy is only permitted the bill should exclusively provide for the maternity relief to the surrogate as she will not receive any compensation or fee from the intending couple. If a commissioning woman does not uses her own eggs but eggs of donor can she also avail maternity benefits is not stated by the bill.

RECOMMENDATIONS–

The law should be pro bono publico so that a large number of people gain greatest benefit from it. The new Surrogacy bill has been introduced with an aim to end exploitation of women and protect the child born out of surrogacy by banning an activity completely instead of regulating it. Some provisions of the bill require a re-examination so that the technique of medical science can be used by all in a manner which does the maximum good for the society. Banning the commercial surrogacy confines the scope of both surrogate mothers and intending couples and can prove to be a disaster as an underground surrogacy industry will be developed which can increase human trafficking.

  1. The commercial surrogacy should altogether be not banned but instead be regulated- The surrogacy agreements can be treated on par with contracts and the principles of Indian Contract Act 1872, both the parties would be legally binding with the contract. In this way single people will also be able to go for surrogacy arrangements.
  2. Altruistic Surrogacy – the intending couple who have no such “close relative” or who cannot find any such close relative who is ready to become a surrogate mother will be forced to either go for adoption or remain childless. They will be left with no other alternative. The bill should provide a provision for such couples and provide a proper remedy.
  3. Rights of surrogate mother – Under what conditions a child can be aborted, provisions regarding maternity relief to surrogate mother under public and private sector needs to be clearly stated. The surrogate mother should be given freedom to act as surrogate for more than one time considering her willingness and health.
  4. Rights of surrogate child – The best interest of child born out of surrogacy arrangements should be given a paramount consideration. The child’s rights when he or she is unborn and once he or she is born should be protected by a contract. The child should be guaranteed his or her right to know his or her origin.
  5. Consent – The written consent given by the surrogate should be free and without any coercion by her in-laws, or intending couple, the consent of the husband of surrogate should also be obtained.

Therefore, the existing bill is ambiguous on some parts and thus requires more clarity in it. We should regulate the technologies and not human lives.