Malinowski stated that marriage is the procreation of children[1], though many women are not always able to conceive. In today’s modern era, men and women facing a decreasing fertility rate due to changing social structure, mental and physical stress, anxiety, overuse of emergency contraceptives, sexually transmitted infections, hormonal imbalance, etc. Couples have often wished for a child that has their genetics so they prefer surrogacy over adoption. That is why surrogacy becomes a significant topic in the Indian legal context.
What is Surrogacy?
Surrogacy is an agreement between a couple and a woman who want to be the surrogacy mother of the couple’s child. The surrogate mother is the woman who carries the baby in her womb and gives that child to the couple/person once they are born.[2]
Surrogacy Regulation Bill, 2016:-
Surrogacy Regulation Bill 2016 was approved by the parliament to protect women from exploitation. As per the bill Homosexual couples, Couples in live-in relationships, Single parents, Foreigners, Couples with children are not allowed to surrogacy.
This bill permits altruistic surrogacy and restricted commercial surrogacy. This bill allows surrogacy only for couples who cannot conceive. As per the bill, the surrogate mother must be a close relative of the intending couple. Also, the intending couple and the surrogate mother are compelled to take eligibility certificates from the appropriate authority. Insurance coverage is provided by the intending couple to the surrogate mother. Any child born out of a surrogacy procedure shall be the biological child of the intending couple and will be allowed all rights which are available to a normal child.
The couple and the surrogate mother can go through a surrogacy procedure only at surrogacy clinics enrolled with the government. To commence the procedure of surrogacy, the couple and the surrogate mother need to acquire certificates to clarify that there are eligible for this. The Bill does not prescribe a period within which the authority needs to permit the certificates. Also, the Bill does not prescribe a review or appeal procedure in case the application for the certificates is dismissed.
The punishment for engaging in commercial surrogacy is also started under this bill. Any person who takes the aid of a doctor or a surrogacy clinic to perform commercial surrogacy will be punishable with detention for a minimum period of 5 years and a fine that may be extended to 5 lakh rupees.
Any person who are abusing or abandoning the surrogate mother or child; and selling or importing human embryo or gametes for surrogacy will be punishable for 10 years and a fine that may be extended up to 10 lakh rupees.[3]
Rights of Parties to Surrogacy Agreement:-
Dr Justice A.R. Lakshmanan, the chairman of the 228th Law Commission suggest that surrogacy agreements should be regulated by a contract between the parties, the birth certificate of the surrogate child should include the name of the commissioning parents only, the right to privacy of the donor and the surrogate mother should be conserved, cases of abortion should be regulated by the Medical Termination of Pregnancy Act, 1971, and gender-selective surrogacy should be forbidden by the law.[4]
The rights of parties to surrogacy agreement are given below:
1. The intended parents need to produce a certificate of verified infertility of one or both received from a district medical board to make a surrogacy contract after that a decree concerning the parentage and custody of the child to be born through surrogacy upheld by a court of the Magistrate of the first class on an application made by the intending couple and surrogate mother. The appropriate council allocated an eligibility certificate after assuring the intending couple. Intending female should be aged between 23-50 years and for male 26-55 years, they should be married for at least 5 years and are Indian citizens or Overseas Citizen of India, People of Indian Origin, Non-Resident Indians and foreigner married to an Indian citizen, they have not had any living child biologically or through adoption.
2. The delegating couple is compelled not to renounce the child who born out of a surrogacy procedure, for any reason valid whatsoever encompassing but not prohibited to any genetic defect, birth deficiency, any other medical diseases, the deficiencies acquiring subsequently, sex of the child or conception of more than one baby, etc.
3. The surrogacy clinic must clarify completely all general side effects and after-effects of the procedure to the surrogate mother and get written consent from her in the language that she understands.
4. No person, organization, surrogacy clinic, laboratory or clinical organization shall force the surrogate mother to abort at any phase of surrogacy except in such conditions as may be specified.
5. The intended parents are liable to pay for the surrogate’s expenses bound by the surrogacy agreement.
6. The surrogate is not to engage in any actions which may injure the foetus. The surrogate and her husband are not supposed to have an extra-marital affair during the pregnancy period. The Surrogate has to hand over the baby, withdrawing all her parental rights, to the intended parents.
7. If the first embryo transfer ceases to function, the surrogate mother shall undergo not more than two embryo transfers for the same couple.[5]
Conclusion:-
Surrogacy is a freedom of choice available to an individual. Being an infertile woman doesn’t make anyone less of a woman, there is always an option to adopt or surrogate a child and give him or her love and care.
By Shreeparna Goswami
3rd year of Shyambazar Law College.
[1] MARRIAGE IN INDIA – Academike, https://www.lawctopus.com/academike/marriage-india/.
[2] Surrogacy | Pregnancy Birth and Baby, https://www.pregnancybirthbaby.org.au/surrogacy.
[3] The Surrogacy (Regulation) Bill, 2016, https://prsindia.org/billtrack/the-surrogacy-regulation-bill-2016.
[4] The new surrogacy bill protects the interests of all | Hindustan Times, https://www.hindustantimes.com/analysis/the-new-surrogacy-bill-protects-the-interests-of-all/story-F4DJy6L5QsfYk57npKVB3H.html.
[5] Analysis: Surrogacy Procedures in India and the Laws, https://legaldesire.com/analysis-surrogacy-procedures-in-india-and-the-laws/.
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