Surrogacy is a method in which
a woman consents to carry a child and go through gestation for it. When the
child is born, it is then given to the couple who sought it. The surrogate
mother will not raise the child but only acts as a gestational carrier after
being implanted with an embryo.
Regulation in India
India lacks appropriate
regulatory measures for the surrogacy business or more popularly known as
baby-making business. It is a was a thriving business of $2.3Billion/annum
before passing of The Surrogacy Act.
In 2016, the Surrogacy Bill
was introduced in the Parliament which was passed 2 years later, on 18th
December 2018. The act prohibits the increase of commercial surrogacy in India.
The legislation aims and provides children to only those couples who could not
bear children.
Conditions
The acts provide that the
person who is going to be a surrogate mother should be a close relative to the
couple seeking a child. However, it does not define the who these ‘close
relatives’ shall be. National Surrogacy Board has been established for the
regulation and systematic governance of surrogacy practice in India.
The act requires the couple
and the surrogate mother to have eligibility certificates to do so, which shall
be released by competent authorities. The act puts the biggest limitations on
foreigners and Non-Resident Indians (NRIs). They are no longer allowed to seek
surrogacy in India. The decision was taken after many cases of abandonment of
children, and child trafficking cases came to light.
The act does not cover the
same-sex couples and hence, dampens the idea of equal rights to the LGBTQ+
community. The same applies to the people in relationships different from
traditionally monogamous married ones, which means even single parents and
live-in couples do not come under the purview of this act. The couple seeking
surrogacy should be married for at least five years and mandatorily possess a
competent registered doctor’s certificate, confirming their infertility.
Another limitation put by the
act is that couples that already have children are not allowed to seek
surrogacy in India. However, such couples can adopt children as per existing
laws.
The act has often been
criticised for to be a prohibition, more than a regulation. So in 2020
parliament of India approved the Assisted Reproductive Technology Bill for
removing the prior law.
K.Kalaiselvi vs Chennai Port
Trust (2013)
The Supreme Court in the
landmark judgement of K.Kalaiselvi vs Chennai Port Trust (2013) has contended
that “In some cases surrogacy is the only available option for parents who wish
to have a child that is biologically related to them.”
The court has further defined
surrogacy into four types.
l Traditional surrogacy (also known as the Straight
method): The surrogate is pregnant
with her own biological child, but this child was conceived with the intention
of relinquishing the child to be raised by others; by the biological father and
possibly his spouse or partner, either male or female. The child may be
conceived via home artificial insemination using fresh or frozen sperm or
impregnated via IUI (intrauterine insemination), or ICI (intracervical
insemination) which is performed at a fertility clinic.
l Gestational surrogacy (also known as the Host method): The surrogate becomes pregnant via embryo transfer
with a child of which she is not the biological mother. She may have made an
arrangement to relinquish it to the biological mother or father to raise, or to
a parent who is themselves unrelated to the child (e.g. because the child was
conceived using egg donation, germ donation or is the result of a donated
embryo.). The surrogate mother may be called the gestational carrier.
l Altruistic surrogacy: Altruistic surrogacy is a situation where the
surrogate receives no financial reward for her pregnancy or the relinquishment
of the child (although usually all expenses related to the pregnancy and birth
are paid by the intended parents such as medical expenses, maternity clothing,
and other related expenses).
l Commercial surrogacy: Commercial Surrogacy is a form of surrogacy in which
a gestational carrier is paid to carry a child to maturity in her womb and is
usually resorted to by well-off infertile couples who can afford the cost
involved or people who save and borrow in order to complete their dream of
being parents. This medical procedure is legal in several countries including
in India where due to excellent medical infrastructure, high international
demand and ready availability of poor surrogates it is reaching industry
proportions. Commercial surrogacy is sometimes referred to by the emotionally
charged and potentially offensive terms wombs for rent, outsourced pregnancies
or baby farms.