Author :- Adhyaru Jeni Nandkumar
“Little souls find their way to you, whether they are from your womb or someone else’s – Sheryl Crow
Where being a parent is a blessing, the infertility is a curse in India. In India infertility is a social stigma. Indian society has got a very stable family structure, strong desire for children and particularly for sun to carry forth the lineage or “Vansh”.
Especially, when it comes to infertility in the female partner, where she is blamed in almost every cases and infertility is one of them which considered as a curse for women.
Women with infertility or conceive issues termed as “Banj” in India.
In advancement of reproductive technologies have been blessed to the infertile couples with their own babies including some that will preserve their genetic connection to their child.
In India clinics have been providing Assisted Reproductive Technology (ART) services i.e.
In Vitro Fertilization (IVF), Intrauterine Insemination (IUI), Pre-Implantation Genetic Diagnosis (PGD), Gamete Donation, Intra-Cytoplasmic Sperm Injection (ICSI) and Surrogacy.
Very first question comes into our mind that, “what is surrogacy?” Surrogacy is an option to fulfill the desire of having a child of an infertile couple for whom it is impossible to carry a baby to term on their own by the use of physical or medical practices.
The surrogate offers to carry a baby through pregnancy and then return the baby to the intended parents after its birth.
There are two kinds of surrogacy; Traditional surrogacy and Gestational Surrogacy.
Where a surrogate mother is artificially inseminated, either by intended father or anonymous donor is called a Traditional Surrogacy and where an embryo is created using an egg and sperm produced by intended parents and is transferred into the womb of surrogate mother is known as Gestational Surrogacy.
Where infertility is a curse for couples, surrogacy came as a blessing. When any woman is caring a child for others by transfer of embryo or gametes of father is called a surrogacy.
The practice of surrogacy can be traced in ancient times also where it was termed as ‘Niyoga Dharma’.
Balaram, the 7th Child of Vasudev and Devki, the embryo was transferred in the womb of Rohini who was known as Vasudeva’s First wife, to prevent the baby being killed by Kansa.
In Mahabharat, Gandhari conceived but endured a long pregnancy for two years; after which she delivered a mass.
It was found by Rishi Agyasa that there were 101 cells which were put in a nutrient medium and grown outside the womb till term. From which, 100 cells developed into the male known as Kauravas and one female child was born named Dushala.
The god of war, Kartikey mostly known as the god of fertility, was born out of surrogacy through Shiva and Ganga being the surrogate mother.
So, we can clearly say that surrogacy existed in ancient times as well, and there is no conflict between the socio-religious mores and assisted reproduction.
LAW OF SURROGACY IN INDIA
In India Commercial Surrogacy was legalized for the first time in 2002, which led to increased demand from the couples who are unable to biologically gestate their own child and the market grew consequently. India became the surrogacy capital in the world for the international intended parents due to proper legislation and framework. The Indian Council for Medical Research (ICMR) have been formulated guidelines in 2005, but these guidelines did not have any statutory basis and surrogacy continues to remain an unchartered territory in the Indian legal landscape where in 2008, the commercial surrogacy was being briskly carried out.
The change into these practices came when The Supreme Court was called upon to deal with case revolving around surrogacy in the year 2008.
In Baby Manji Yamda vs. UOI the matter pertained to obtaining travel documents for a baby with Japanese parents conceived and born in India through commercial Surrogacy.
The Supreme Court opined that the commercial surrogacy is legal in India. This judgment coincided with the formulation of the Assisted Reproductive Technology (Regulation) Bill, 2008. But, no steps were taken to formulate the Bill of 2008 before Parliament and this promoted the Law Commission to take up the issue of surrogacy for research.
Then in 2009 the report for legislation to control surrogacy and solve legal issues regarding the same was submitted by the Law Commission of India. In 2010 ICMR revised the guidelines and proposed a legal agreement between intended parents, surrogate mother and ART clinic before commencing the process of surrogacy.
The ministry of health and family welfare submitted suggestions to revise the draft of ART Bill.
In 2012 a study by the UN, estimated the economic scale of the Indian Surrogacy Industry to be 400 million dollars a year with over 3000 fertility clinics across the country.
Where India has led to earn the sobriquet ‘world capital for surrogacy, Aanand in Gujarat known as ‘Cradle of the World’.
The commercial surrogacy was prohibited in 2015 by the Government of India and closed the doors for foreign nationals, POI and NRI.
The Union Cabinet approved the Surrogacy Regulation Bill in 2016 which allows only Indian married infertile couple to avail surrogacy services.
The Bill passed was differ from the Bill of 2014 in many respects. However, finality continued to elude the law of surrogacy and Bill wasn’t introduced in the Rajya Sabha. Subsequently, the Bill of 206 in the exact same form was re-introduced in the Lok Sabha as Surrogacy (Regulation) Bill, 2019 and was passed by the Union Cabinet, chaired by the Prime Minister Narendra Modi for the welfare of women in the country.
THE SURROGACY (REGULATION) BILL, 2020
- There are several historic and significant changes brought in by this Surrogacy (Regulation) Bill, 2020 which are as follows:
- The Bill deletes the definition of ‘infertility’ which was previously defined as the inability to conceive after five years of unprotected intercourse.
- The committee was of the view that five years is very long a period for couples to wait for baby and regarded it as unreasonable and against the objectives of the act.
- It allows any “willing” woman to be a surrogate mother, only a close relative of a couple can be a surrogate mother.
- The present bill allows altruistic surrogacy and completely prohibits commercial surrogacy including the sale and purchase of human embryos and gametes, so that the surrogate mother would not receive any financial compensation and awards for her pregnancy, except for the basic medical expenses and insurance coverage.
- It also regulated the functioning of the surrogacy clinics by making a mandatory registration with the appropriate authority.
- the bill allows surrogacy only ethical surrogacy to Indian married couples between the age of 23 to 50 years for wife and 26 to 55 years for husband, Indian-origin married couples and Indian Single woman only widow or divorcee between the age of 35 to 45 years.
- It is mandatory to obtain a certificate of essentiality and also a certificate of eligibility for the couple before going ahead with the treatment of surrogacy.
- It also provides that intending couples shouldn’t abandon the baby born out of surrogacy under any condition and new-born child shall be entitled to all rights and privileges that are available to a natural child and no sex selection can be done during the process of surrogacy.
- It also proposed the insurance cover for surrogate mothers has been increase to 36 months from 16 months, to control the high risks of medical complications even after pregnancy.
The penalties for the offences under the bill attract fines up to 10 Lakh rupees and imprisonments up to 10 years.
The bill proposes to regulate surrogacy by establishing a National surrogacy board (NSB) at the central level and State Surrogacy board (SSB) and appropriate authorities, whose function would be to advise the government on policy matters and supervising the functions of the clinics.
Motherhood is traditionally considered a blessing from God in India and is deemed the most precious experience in every woman’s life. Motherhood is also termed as a second birth for a woman. Being a surrogate mother is as risky and may have severe complications despite the medical assistance and care that they may receive such care is rarely accessible or affordable for them in their natural pregnancies.
Although several women rights activists and feminists groups in India have been against commercial surrogacy because of malpractices, but it remains an inescapable fact, that it was an important source of income for many women from financially disadvantaged backgrounds, and this will deprived them of their means of livelihood.
Where Surrogacy industry is fully grown in India and banning it at this stage may create implementation challenges and push the business underground.
India is facing a rise in infertility cases where ban in commercial surrogacy takes away the couple’s right to child.
Despite of banning commercial surrogacy, a proper law with strict regulations and enforcement which would address the concerns of all stakeholders in the industry is required.