SURROGACY AND ITS LAWS IN INDIA

INTRODUCTION

Surrogacy is the process where the surrogate mother replaces the genetic-biological mother. There are two different forms of surrogacy: conventional and gestational.

The kid is genetically connected to both the surrogate mother, who gives the egg, and the intended father or anonymous donor in conventional surrogacy.

In gestational surrogacy, the kid is genetically connected to the egg donor and intended father or sperm donor, but not to the surrogate.

Commercial surrogacy is a type of surrogacy in which a gestational carrier is compensated to carry a child to maturity in her womb. It is typically resorted to by infertile couples with higher incomes who can afford the associated costs, or by those who save and borrow to fulfil their dream of becoming parents.

Legal Perceptions (Evolution of Surrogacy Laws)

In 2002, India legalised commercial surrogacy, which led to the explosive rise of various commercial businesses and firms claiming expertise in surrogacy legislation, as well as coaching and supporting foreign tourists seeking to rent an Indian mother’s womb for the blessing of a child. Such arrangements might be deemed exploitative since they not only encourage baby-selling, but also degrade the dignity of women’s reproductive capacity and the intrinsic worth of children by manipulating them. This paved the way for the establishment of numerous foreign companies in India, assisting people from all over the world to find an Indian surrogate mother, assisting foreigners with the paperwork associated with surrogacy, and assisting the child in acquiring a passport and visa to leave the country.

The 228th report of the Law Commission of India recommends banning commercial surrogacy and permitting ethical altruistic surrogacy via the enactment of appropriate laws. One of the primary causes for the proliferation of surrogacy services in India is poverty, which forces impoverished Indian women to rent their wombs for money or other necessities.

The Indian Council of Medical Research (ICMR) published regulations governing surrogacy contracts in 2005. The rules indicated that the surrogate mother would get monetary compensation, the amount of which would be determined by the couple and the surrogate mother. In addition, the standards stipulated that the surrogate mother cannot give her own egg for the surrogacy and must waive all parental rights connected to the surrogate kid.

The Case Laws

1. Baby Manji Yamada vs. India’s Union (AIR 2009 SC Page 84)

Baby Manji Yamada was born to an Indian surrogate mother for a Japanese couple who split within a month of the child’s birth, leaving the child’s future uncertain. Ikufumi Yamada, the kid’s biological father, wanted to bring the child back to Japan; however, neither the legal framework nor the Japanese government permitted him to do so. In the end, the Supreme Court of India had to intervene before the kid and her grandma could leave the country. The most significant effect of the Baby Manji Yamada ruling was that it prompted the Indian government to pass a legislation regulating surrogacy.

After the Manji case, the Supreme Court of India ruled in 2008 that surrogacy was legal in India, which enhanced worldwide trust in surrogacy in India.[1]

• Jan Balaz Municipality vs. Anand Municipality

The Gujarat High Court ruled that the birth certificate of a child born through surrogacy will bear the surrogate mother’s name as opposed to the biological mother’s name, and that the child will be issued an Indian passport that certifies him as an Indian citizen. The surrogate mother was then required to give the child in adoption to a German couple who had sought the services of an Indian surrogate mother.

The Supreme Court is still possessed of an appeal against this ruling, and during its hearing, the Supreme Court saw an urgent need to address the issue, paving the way for the introduction of a bill in the House of Representatives.

All of these instances have sparked scholarly attention and resulted in the surrogacy prohibition law, which prohibits foreigners from soliciting Indian mothers for surrogacy.[2]

With Commercial Surrogacy Banned In India, Couples Find Refuge In Georgia

Surrogacy has been the most realistic choice for Indian couples struggling with infertility for many years. According to the statistics, one in six urban couples in India is infertile.

In December of last year, though, the nation’s central government approved a legislation prohibiting commercial surrogacy.

The legislation change affected the $375 million surrogacy industry in India, which was comprised of 3,000 facilities. According to Worldwide Markets Insights, this represents over a tenth of the $4 billion global market for surrogacy, and it is projected to increase by nearly a third by 2027.

As surrogacy is no longer a possibility in India, Indian couples have sought sanctuary in the former Soviet country of Georgia, some 4,000 kilometres away. This European-Asian country has been the most popular destination for Indians since commercial surrogacy is legal and reasonably affordable in Georgia.

According to the article, Vinsfertility, a second surrogacy clinic in India, has begun marketing its services in other countries, including Georgia, by promising a “assured surrogacy programme” in an effort to modify its business following the prohibition.

After a decade of discussion over the morality of allowing individuals to pay women to bear their children, India outlawed surrogacy entirely. A lawyer from Mumbai told Insider that surrogacy in India cost over Rs 15 lakh prior to the prohibition.

The Lancet reported that over 25,000 children were delivered in India to surrogates, with almost half of them being for foreign parents.

The Indian government prohibited foreigners from utilising Indian women as commercial surrogates in 2015, but the local market remained unaffected until 2017.

Georgia legalised surrogacy in 1997, but Nepal and Cambodia, India’s two options, outlawed the practise in 2015 and 2016, respectively.

Surrogacy in Georgia costs between Rs 23 and 30 lakh, which is more costly than in India but far less than in western nations such as the United States, where the typical cost ranges from $120,000 to 150,000.

The Bill on Surrogacy

The Surrogacy (regulation) bill, 2016 was presented in Lok Sabha on 21 November 2016 and referred to the standing committee on 12 January 2017. On the basis of this report, Lok Sabha passed the bill on December 19, 2018. The committee submitted its report to Lok Sabha on August 10, 2017, and Lok Sabha passed the bill on December 19, 2018.

The purpose of the Surrogacy Act of 2016 is to restrict commercial surrogacy and encourage altruistic surrogacy. Additionally, the measure protects the surrogate mother and child against exploitation. Surrogacy is a means by which an infertile married couple that is qualified under the rules of the law may now carry a child with the assistance of an appropriate surrogate mother. However, the surrogate mother will not get any monetary advantage or remuneration for renting her womb to the intended couple, with the exception of her pregnancy-related medical and insurance costs.

The proposed law mandates the registration of surrogacy clinics as well as the creation of a National and State Surrogacy Board and Appropriate Authority.

The Surrogacy (Regulation) Bill, 2016, which was approved by Lok Sabha, stipulates the following:

Section 2 provides for altruistic surrogacy, which is defined as surrogacy in which no charges, expenses, fees, remuneration, or monetary incentive of any kind are given to the surrogate mother or her dependents or representative, with the exception of medical expenses incurred by the surrogate mother and insurance coverage for the surrogate mother.

Commercial gestation Commercial surrogacy refers to the commercialization of surrogacy services or procedures or their component services or component procedures, such as the sale or purchase of human embryos or gametes, or the sale, purchase, or trade of surrogate motherhood services by way of giving payment, reward, benefit, fees, remuneration, or monetary incentive in cash or kind to the surrogate mother or her dependents or representative.

Couple as legally married Indian man and woman older than 21 and 18 years, respectively.

Surrogacy refers to the practise in which a woman carries and gives birth to a child for a couple with the aim of turning the kid over to the couple after the delivery.

Protection of the gestational carrier

• Section 35 prohibits commercial surrogacy as well as the exploitation of the surrogate mother and child.
• No individual or organisation may engage in commercial surrogacy or offer related services.
• No commercial surrogacy advertisements or publications
• No one may disown, abandon, or exploit the kid in any way.
• No one may exploit the surrogate mother.
• No one may sell human embryos or gametes for use in surrogacy
• No one may import or assist in the importation of human embryos or gametes for surrogacy.
• These acts are punished by imprisonment for at least 10 years and a fine of up to 10 lakh rupees.

• Section 36
• Punishment for violations of any Act provisions
• Not less than five years in jail and a fine of up to 10 lakh.

• Punishment for initiating commercial surrogacy under Section 37

Whoever seeks commercial surrogacy shall be punished with imprisonment for a term that shall not be less than five years and a fine that may reach five lakh rupees for the first offence, and with imprisonment that may reach ten years and a fine that may reach ten lakh rupees for any subsequent offence.

• Section 38 Penalty for Violation of Provisions of Act or Rules for Which No Specific Penalty Is Provided: 3 years plus 5 lakhs + 10,000 per day for continued contravention.

• Section 39 Presumption in Surrogacy Cases

The Court shall presume, unless the contrary is proven, that the woman or surrogate mother was compelled by her husband, the intending couple, or any other relative, as the case may be, to render surrogacy services, procedures, or to donate gametes for purposes other than those specified in clause (ii) of Section 4, and such person shall be liable for abetment of such offence under Section 37 and shall be punished accordingly.

The Bill has not yet been presented in Rajya Sabha, but following the president’s signature, it will become an Act.

2016 Surrogacy (Regulation) Bill provisions:

1. The law applies to all Indian states with the exception of Jammu & Kashmir. The law establishes the National Surrogacy Board and State Surrogacy Board in order to regulate the surrogacy procedure.
2. The measure exclusively allows surrogacy for Indian nationals. Foreigners, NRIs, and PIOs are prohibited.
3. Homosexuals and single parents are ineligible for surrogacy, as are couples with existing children.
4. The measure stipulates that a woman may only serve as a surrogate once in her lifetime and that her age must be between 25 and 35….
5. The intended parents must be between the ages of 23 and 50 and have been married for at least five years.
6. The measure also includes provisions for the custody of a new-born kid. The measure provides provisions for jail and fines for anyone who break the legislation.

• BIBLIOGRAPHY

• https://timesofindia.indiatimes.com/readersblog/marvellouscontinuity/the-art-of-life-35421/
• https://www.business-standard.com/article/current-affairs/as-india-banned-commercial-surrogacy-couples-now-find-refuge-in-georgia-122061000511_1.html
• https://scholar.google.com/scholar?hl=en&as_sdt=0%2C5&q=illegal+surrogacy+in+india&btnG=#d=gs_qabs&t=1661408702110&u=%23p%3Dmv7ozrMjVV8J
• https://www.legalserviceindia.com/legal/article-782-surrogacy-in-india.html#:~:text=The%20biggest%20impact%20of%20the,in%20for%20surrogacy%20in%20India

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[1] WRIT PETITION (C) NO. 369 OF 2008, sept 29

[2] CIVIL APPLICATION No. 3020 of 2008, GHC