Position of Surrogacy Laws in India
In few recent decades, India has become a surrogacy hub for the world. This industry is booming and has an estimated over 30000 crores. Tourism for surrogacy is called adoptive tourism. Adoptive tourism in India is highly unregulated. So today, we will take a dig at the position of Surrogacy laws in India.
Introduction
According. To Wikipedia, Surrogacy is a method or agreement whereby a woman agrees to carry a pregnancy for another person or persons, who will become the newborn child’s parent(s) after birth. Earlier, surrogacy arrangements were made with a woman who was kith or kin or close to the family. This form of surrogacy is called Altruistic Surrogacy. The purpose was to help those couple who are infertile or could not bear pregnancy without any lawful gain for their service; hence altruistic. But now, “commercial Surrogacy “ is taking place in ART(Assisted Reproductive Technology) clinics. More than 3000 clinics have been opened in India offering artificial insemination, IVF and surrogacy.
International Legal Position of Surrogacy
Surrogacy laws are different and vary from country to country. Countries like France, Sweden, Spain and Germany have banned commercial Surrogacy. While in countries like England, Ukraine and USA it is allowed. However, there exists a lot of legal hurdles in these countries. This makes them a less viable option.
The issue of ethics and morality are also involved in Surrogacy. On a similar note, the transfer of embryos in exchange for monetary compensation can be also be viewed as organ trafficking. That’s why countries refrain from surrogacy.
Position of Surrogacy Laws in India
There is an absence of specific Surrogacy Laws in India. Therefore, it is presumably legal in India since no law prohibits surrogacy in India. Court has not declared it illegal either. Currently for the Surrogacy Laws in India are guidelines of IMA,2005 and decisions of the courts.
Though bills are pending in Parliament like Assisted Reproductive Technologies (ART, Regulation)Bill and Surrogacy Regulation Bill, 2016 with the aim to regulate these ART clinics and look after the interests of surrogate mother and surrogate child. These bills also intend to prohibit commercial surrogacy.
Complexities arising from Surrogacy
Ethical Issues
Surrogacy especially commercial surrogacy involves making contracts for the use of the body. It also involves the transfer of some other’s sperm or both sperm and egg into another’s body in exchange for money. This exchange of human parts can be seen as highly unethical. Contracts made for use of bodies are also in violation of the human rights of the surrogate mother and surrogate child.
Legal Issues
Legal issues like guardianship and citizenship are also associated with surrogacy. When couples from other countries come for adoptive tourism, this further complicates the problem. The extent of complexity of this problem was evident in the Baby Manjhi Yamada case where the couple came to India for surrogacy contracted with the clinic and got divorced while the baby manjhi was in the surrogate mother’s womb. Suddenly, Baby Manji had three mothers, i.e., the intended mother who had contracted for the surrogacy, the egg donor, and the gestational surrogate – yet legally she had none. The question which arose was whether she was Indian or Japanese or could she have an identity and a nationality without having a mother. This is one example where there are many complexities arising in surrogacy. Therefore this is an immediate need for precise Surrogacy Laws in India.
The exploitation of poor women
Usually, the woman hired for surrogacy are poor and illiterate and Surrogacy involves contracts. Therefore there is a probable possibility of exploitation of interests of these poor people. Poor people see childbearing as a way out of poverty. Most of the time, surrogate woman do not get a say in the matter. Considering the risks of childbearing, surrogacy as a profession should be discouraged.
Conclusion
Since most of the countries have put a stop to commercial surrogacy, most couples come to India for surrogacy. India has become a hub for commercial surrogacy. In the absence of Surrogacy Laws in India, this industry is highly unregulated. This leads to many complexities. The need of the hour is to pass those pending bills on Surrogacy. That can bring clarification to our stance on surrogacy. Those bills are also important to protect the interest of the surrogate mother and surrogate child.
Written By Ankit Raturi, University School of Law and Legal Studies
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