Surrogacy in India
By Shreya Verma
Surrogacy, as per Collins English Dictionary means, ‘‘an arrangement by which a woman gives birth to a baby on behalf of someone who is physically unable to have babies themselves, and then gives the baby to that person’’.
India legalised commercial surrogacy in 2002. ‘Commercial surrogacy’ as per Section 2(g) of The Surrogacy (Regulation) Act, 2021 means, “commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother”. Since, surrogacy in India is quite cheaper, it is 3 times cheaper than in UK and 5 times than in USA, so, many foreign couples opt India for surrogacy. A report says that, 50% of surrogate babies are "commissioned" by overseas, mainly western, couples. Owing to high demand, the surrogate industry in India was operating unchecked. Women in need of money, agree to rent their wombs in order to make enough money to look after their families. However, they undergo more risk than their body can bear. In some cases, a woman undergoes subsequent pregnancies without taking a proper gap. Considering this, Law Commission in its 220th Report on 'Need for Legislation to Regulate Assisted Reproductive Technology Clinics, as well as rights and obligations of parents to a surrogacy', has opined the concept of Surrogacy Agreement which will include-
(a) consent of surrogate mother to bear the child;
(b) agreement of her husband and other family members.;
(c) medical procedures of artificial insemination;
(d) reimbursement of all reasonable expenses for carrying the child to full term;
(e) willingness to handover the child to commissioning parents.
Law Commission also recommended-
-> a legislation which would recognize a surrogate child to be legitimate child of the commissioning parents without there being any need for adoption or even declaration of guardian.
-> child should bear the name of commissioning parents only and that right to privacy of donor as well as surrogate mother should be protected.
-> it also suggested that an Assisted Reproductive Technology Bill should be passed which would carry all the safeguards regarding surrogacy.
In Jan Balaz vs. Anand Municipality (2010) Guj. question regarding nationality of child born in India through surrogacy arose. It was asked, as to whether a surrogate mother is only a gestational carrier or a host of an embryo? It was further asked that where a surrogate is also an ova Donor then will she be the real mother or merely a gestational surrogate? Laws of several countries on the nationality of child born through surrogacy were discussed in this case and it was held that if surrogate mother is just an Egg Donor and the child is born out of the intended mother then that intended mother will be the natural mother and consequently legal mother of that child. However, in the cases where the surrogate is Egg Donor as well as bears the child in her womb and gives birth then natural mother will be the surrogate and child will get Indian nationality if the surrogate mother is an Indian.
On 25th December, 2021, The Surrogacy (Regulation) Act, 2021 received the assent of the President. Some of the noteworthy provisions under the Act are:
Parentage of surrogate child: Surrogate Child is deemed to be a biological child of the intending couple or intending woman. The child would be entitled to all the rights and privileges available to a natural child under any law for time being in force. (Section 8)
Registration of Surrogacy Clinics: Chapter 4 of the Act talks about the registration of surrogacy clinics which includes making an application for registration to the appropriate authority and issuance of certificate of registration, paying of requisite fees, registration under National assisted reproductive technology and surrogacy Registry, etc.
It prohibits commercial surrogacy and exploitation of mothers and children born through surrogacy.
Promotion of altruistic surrogacy and punishing those who does not follow altruistic surrogacy.
Taking written informed consent of surrogate mother in which, she is explained about the side effects and after effects of the procedure.
It also prohibits the intending couple or woman to abandon the child who is born out of surrogacy procedure for any reason like sex of the child, any genetic defect, birth defect or any other medical condition.