Analysis of Surrogacy and Surrogacy Laws in India Satyajit Pattanaik BASICS OF LAW Wed, Sep 16, 2020, at ,06:01 PM "It is her egg and his sperm, and I am just an oven, it is totally their bun." The concept of being a mother of a child, who is not biologically related to her is not a new concept in India. Since the mythological period in India, that, Yashoda played mother to Krishna though Devki and Vasudeva were his biological parents. Likewise, Gandhari made Dhritarashtra the father of a hundred children, notwithstanding they have biological relation with none of them. Surrogacy can be tentatively defined as an agreement which is often supported by law, wherein women, i.e. the surrogate mother who agrees to become pregnant and gives birth to a child for another person or persons, basically the parents of the child who is known as the commissioning parents of the child.[1] In such kinds of arrangements, monetary compensation i.e. 'Consideration,' may or may not be given. When the surrogate mother receives money for such arrangement, then such arrangement is considered to be a commercial surrogacy and when there is no receiving of compensation or consideration, except the reimbursement of reasonable expenses that can be known as altruistic.[2] However, in a country like India, where there is no legislation regulating the domain of surrogacy, surrogacy is becoming vulnerable to be misused by both commissioning parents and surrogate mothers. Meaning and Types of Surrogacy " Surrogacy is defined as an arrangement or an agreement between the Commissioning Parents and the Surrogate mother to cultivate the womb of the surrogate mother for the growth of the child of the commissioning Parents for a particular span of time. Surrogacy can be defined as an agreement which is often supported by a lawful agreement wherein women who agrees to become pregnant, i.e. the surrogate mother, and agrees to give birth to a child for another person or persons, basically the parents of the child who is known as the commissioning parents of the child.[3] Generally, surrogacy is of two main types[4], namely;" Traditional surrogacy "In such kind of surrogacy i.e. traditional surrogacy, a surrogate mother is inseminated naturally or artificially, either by the commissioning father or by an anonymous donor, and carries the baby for a particular span. Therefore, the child is genetically related to both the surrogate mother, who provides the egg and the commissioning father or anonymous donor.[5] Traditional kind of surrogacy is very controversial than gestational surrogacy as the biological relationship between the surrogate and the child often complicates the matter, like controversies of parental rights or the validity of the surrogacy agreement are challenged. As a result, most states prohibit traditional surrogacy agreements.[6]" Gestational surrogacy "In such kinds of Surrogacy i.e. Gestational surrogacy, one egg is extracted from the intended mother or an anonymous donor and is fertilized with the sperm of the intended father or anonymous donor. Then it is fertilized. Then the fertilized egg or embryo is transferred to a surrogate mother who carries the baby to a particular span of time. Therefore the child is biologically or genetically related to the woman who donated the egg and the intended father or the anonymous sperm donor but not to the surrogate mother.[7]This the method is mostly chosen than the traditional method of Surrogacy as the child is not biologically related to the surrogate mother. Here the surrogate mothers are also known as Gestational Surrogates.[8] So in India, gestational surrogacy is mostly proffered than the traditional surrogacy and is considered to be less legally complex."\ Why one opts for surrogacy? The intended parents may opt for surrogacy in the following situations, namely; When pregnancy is medically impossible for the intending mother, or The pregnancy risks exist to the mother's health, which may be proved to be catastrophic to the health of the surrogate mother, or When a same-sex couple wish to have their babies.[9] Apart from that, it can also be a reason that some couples due to heavy workload in their everyday's life, cannot afford to spend time for the pregnancy etc. , so they also opt for surrogacy. So from all of the above circumstances, it is very much clear that due to some unavoidable incapability a couple opts to go for Surrogacy. In surrogacy, there may be a concept of compensation or consideration. If the concept of consideration is there, then the same is to be called as the commercial surrogacy and if the consideration is not there then the engagement of surrogacy is to be called altruistic. Advantages and Disadvantages of Surrogacy Like everything has a positive and a negative effect, the concept of surrogacy also has some advantages as well as some disadvantages, however, all these advantages and disadvantages are subjective and are to judge in accordance with one's perception. The advantages and disadvantages of surrogacy are discussed hereunder. Advantages of Surrogacy The advantages of Surrogacy are, "Surrogacy is advantageous for those people, who are facing infertility, whether single or as a couple, and members of the LGBT community to have a child where they may not have been able to go for other processes like adoption and all." "The commissioning parent is involved in their child’s development and the surrogate’s pregnancy, including important moments like the embryo transfer and their baby’s birth." Surrogacy allows intended parents to create a special bond and relationship with their surrogate and their surrogate’s family." The people who cannot adopt due to adoption agency restrictions can likely complete the surrogacy process, as it is having fewer governmental and agency restrictions." Surrogate mothers have proven their ability to successfully carry a pregnancy, meaning a surrogate pregnancy may be more likely to succeed than other infertility treatments for an intended parent’s pregnancy." Intended parents have more control and peace of mind through a surrogate pregnancy than they usually have with infertility treatments or adoption." The women who become surrogates are able to share their pregnancy journey with intended parents and create a strong, genuine relationship with them. Often, this relationship is one that lasts beyond the birth of the baby. "It is advantageous to the surrogate mother that she does not need to spend anything, as all of her pregnancy and medical expenses are paid for by the intended parents." "Surrogate mother can also receive a base financial compensation if pursuing commercial surrogacy, which they can then use for financial goals like putting a down payment on a house or in repaying the loan thereof.[10]"\ Disadvantages of Surrogacy The negative effects of surrogacy are given below; That the arrangement of surrogacy involves, to some extent, the "sale of a self" which is morally questionable. "Surrogate mothers may not have complete information about all the implications and potential emotional and physical side effects of their decisions when they sign the surrogacy agreements." Some women are exploited and forced into becoming surrogate mothers only for economic benefits. That sometimes it so happens that surrogates change their mind and want to keep the custody of the children, which may create legal problems. "Surrogacy is usually very expensive, so most people cannot afford it. It contributes to class and social division etc.[11]" Laws in India for regulating surrogacy practices "In India, till now there is no legislation available for governing surrogacy, however, the Indian Council of Medical Research i.e., hereinafter, ICMR issued guidelines in 2005 to check the malpractices of Assisted Reproductive Technology, hereinafter ART this National guideline for Supervision and Regulation for the ART Clinics in India, 2005 are non-statutory and have no legal sanctity, hence not binding and is silent on major issues the lack teeth and are often violated. Exploitation extortion and ethical abuses in surrogacy trafficking are becoming rampant, go unchecked and surrogate mothers are often subjected to gross misuse. [12] " So at that time due to the absence of legislation on surrogacy, the concept of surrogacy became commercial and in order to legalize the commercial surrogacy the Assisted Reproductive Technology (Regulation) Bill and Rules, 2010, which was a draft Bill framed by 12 members committee including experts from ICMR, medical specialists and other experts from the Ministry of Health and Family Welfare, Government of India and was posted online seeking feedback." The bill, earlier also was posted to the public in the year 2008, for comment, was stated to be an Act to provide for a national Framework for the Regulation and supervision of Assisted Reproductive Technology (ART) and other incidental matters connected therewith as a unique proposed law which was to be put before Indian Parliament. Abetting surrogacy, it legalizes Commercial Surrogacy stating that the surrogate mother may receive monetary compensation and will have to relinquish all parental rights. Then till 2013 single parents could have also had children using a surrogate mother. Foreigners upon registration with their Embassy can require surrogate arrangements. it also proposes to make the Commercial surrogacy legal for single persons, married or unmarried couples, stating that the surrogate mother fell enter into a legally enforceable surrogacy agreement." The Assisted Reproductive Technology (Regulation) Bill and Rules, 2010, the draft bill stated that the foreigner or NRIs[13] visiting India for the purpose of surrogacy, would have to submit documentation confirming that their country of residence recognizes surrogacy as legal and that it will give citizenship to the child born out of the surrogacy agreement from an Indian surrogate mother. However new Indian Visa regulations[14] dated 9th July 2012, issued by Ministry of Home Affairs, Government of India, required that only a foreign couple i.e. newly married man and women, whose marriage should have been sustained for at least two years will be allowed to visit India for initiating surrogacy on Medical but not Tourist visas for which some prescribed conditions have to be complied with. These new Medical Indian Visa Regulation became effective from 15th Nov 2012. Therefore, single persons, gay parents and unmarried partners are no longer be allowed to come to India on Tourist Visas to initiate the surrogacy process. [15]" However, on 5th Feb 2013, a limited relaxation to such person was permitted on a case to case basis by the Ministry of Home Affairs only in respect of cases for surrogacy had already been commissioned and children born out of surrogate agreements are due to be born or have born in the year 2013. However, thereafter infants born out of such surrogate arrangements to foreign parents will not be granted Indian citizenship and hence no surrogate arrangements of single persons, gay parents and unmarried partners will be allowed in India. On September 30th, 2015, A draft Bill titled "The Assisted Reproductive Technology (Regulation) bill 2014" "has been circulated in the public domain for general public/stakeholders inviting suggestion and comments within 45 days. It is contemptuous that surrogacy shall be available to all married infertile couples thereby, prohibiting single persons from the surrogacy. it proposes not to allow surrogacy for foreigners but makes it permissible for Overseas Citizens of India(OCIs), People of Indian Origin (PIOs), Non-Resident Indian(NRIs) and foreigner married to Indian citizen with 2 years of marriage who will have to obtain the medical visa for surrogacy in India. The bill further states that foreign nationality for such surrogate children of above foreign Commissioning Parents with the limited entitlement of Overseas Citizens of India(OCI) status.[16] This bill disentitles Indian citizenship to such surrogate children.[17]" Though it is very clear that the aforesaid bills i.e. ART Bill, 2010 and ART Regulation Bill, 2014 were merely laying down some guidelines towards the regulations of Surrogacy related activities, but both of them suffered a number of unfulfilled lacunas. The ART Bill, 2010 was suffering from the following lacunas, namely; That the remedies available to the biological parents to obtain exclusive legal custody of surrogate children and, so, waiver of the rights of the surrogate mother. "Mode of statutorily establishing the genetic constitution of the surrogate child." "Legal process of recording percentage of the surrogate child." "Process of determination of citizenship rights and nationality Rights." "Adoption and guardianship proceeding in respect of the children born out of surrogacy as the Hindu Laws do not allow non-Hindu Parents to adopt in India." "Custodial Rights of a single parent, gay, unmarried and divorced parents." "Rights to prevent exploitation of surrogates mother.[18]" Likewise the ART Bill, 2014 was also suffering from a number of lacunas, some of them are given below; The said Bill did not designate or assign any jurisdiction of any court for adjudication of any dispute arising out of surrogacy, ART and surrogacy agreements. Under this act, the National and the State Advisory Board were only authorities who would promote the ART technology, Surrogacy arrangements and other related matters. And the proceedings in this boards are deemed to be a "Judicial proceeding" before a civil Court. Therefore, the boards being the judicial bodies was really questionable. In that bill, Chapter 3, 4, 5 and 8 talk about the complaints, duties, ART related issues, and offences and penalties respectively. But no provision was there in relation to who will determine such offences and impose penalty i.e. no judicial body was designated to adjudicate such offences. That there are also disputes in relation to the determination of parentage, nationality, issuance of passport and grant of visas etc. and there was no mention of any designated forum wherein such disputes are to be adjudicated.[19] Reasons for opting India as a hub for Surrogacy Surrogacy is becoming a business hub for surrogacy basically for the people coming from foreign countries because of Law cost, less stringent rules in the same area and low expenses. The cost of surrogacy in the USA, UK ad Australia is more than 50,000 US Dollars but in India, there are advertisements offering surrogacy at the rate of 10,000 USA Dollars including the offering of Eggs and surrogate mothers.[20] Apart from that, there being no stringent legislation regulating surrogacy, only what is all we have is ICMR[21] guidelines of 2005 to check the malpractices of ART[22] and to have supervision and regulation on the ART clinics. But merely being a guideline, it is not legally enforceable, as a result, strong exploitation, extortion and ethical abuses in surrogacy in the way of surrogacy trafficking are getting rampant, as a result, the surrogate mothers are often subjected to lots of misuse and hardships.[23] So let us examine some of the problems in relation to surrogacy in India by looking into the detailed concept of surrogacy, including the positive and negative consequences involved therein. Conclusion So from the aforesaid discussion, it is very much clear, as to how the Government is being irresponsible with regard to the regulation of Surrogacy practices and even though, sometimes it is coming with some regulatory Bills as discussed above, those are completely arbitrary and meaningless. So as a Bill cannot have legal sanctity i.e. it is having no force of law, a strong and prudent regulatory legislation regulating the practice of Surrogacy is expedient in India in order to safeguard the rights of the parties to a surrogacy arrangement and to benefit the society as a whole. [1] <https://en.wikipedia.org/wiki/Surrogacy>. [2] ibid [3]< https://en.wikipedia.org/wiki/Surrogacy>. [4] Suketu B.Shah , Issues of Surrogacy in India , International Journal of Culture and History, Vol. 2, No. 4, December 2016. [5] <https://www.hrc.org/resources/overview-of-the-surrogacy-process>. [6] ibid. [7] ibid. [8]Suketu B.Shah, Issues of Surrogacy in India , International Journal of Culture and History, Vol. 2, No. 4, December 2016. [9] ibid. [10]" What are the Benefits of Surrogacy for All Involved, Perker herring law group, <https://parkerherringlawgroup.com/surrogacy-lawyer-attorney-raleigh-nc/surrogacy-information/benefits-of-surrogacy/>." [11] " What-are-the-advantages-and-disadvantages-of-surrogacy <https://www.quora.com/" [12]Anil Malhotra and Ranjit Malhotra, Surrogacy In India, A Law in The Making- Revisited,Universal Publication m second Edition. 57." [13] Non resident India [14] Visa Regulation , 9th July, 2012 [15] Anil Malhotra and Ranjit Malhotra , Surrogacy In India , A Law in The Making- Revisited,Universal Publication m second Edition. pg-58 [16] Under Citizenship Act,1955 [17]Anil Malhotra and Ranjit Malhotra, Surrogacy In India , A Law in The Making- Revisited,Universal Publication m second Edition. pg-58 [18]Anil Malhotra and Ranjit Malhotra, Surrogacy In India , A Law in The Making- Revisited,Universal Publication m second Edition. pg-11 [19] Anil Malhotra and Ranjit Malhotra , Surrogacy In India , A Law in The Making- Revisited,Universal Publication m second Edition. pg-27 [20] Surrogacy In India , A Law in The Making- Revisited, by Anil Malhotra and Ranjit Malhotra,Universal Publication, second Edition. 56. [21] Indian Council Of Medical Research. [22] Assisted Reproductive Technology . [23] Anil Malhotra and Ranjit Malhotra, Surrogacy In India , A Law in The Making- Revisited, ,Universal Publication second Edition. 55.