A Womb For Rent: Surrogacy Laws in India

by Peri Pratima

Surrogacy is an alternative available to infertile women or couple who are not able to reproduce. Surrogacy is an arrangement in which a surrogate mother bears and delivers a child for another couple. Surrogacy was defined by the Warnock Committee as the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth.This implies that the carrying woman acts at the request of another woman who is usually unable to have a child herself.[1] There are two types of surrogacy: traditional and gestational. In traditional surrogacy, the surrogate mother is impregnated by the sperms of the intended father artificially, making the surrogate mother, the child’s genetic mother. On the other hand, in gestational surrogacy an embryo is implanted in the surrogate mother’s uterus, who then carries the baby. If the surrogate is paid for her service it is termed as commercial surrogacy, otherwise it is termed as altruistic surrogacy. Rising number of infertile couples is leading to rise in number of surrogacy cases.

In a country like India, where children are highly desired, there is a pressure on couples on to become parents and the Assisted Reproductive Technologies (ART) are rapidly globalizing. Many factors such as increase in infertility rates, restrictions in adoption, demand for one’s own child, development of surrogacy agencies etc. has resulted in rising public interest in this sector. Commercial surrogacy has been legal in India since 2000. Surrogacy market in India is growing at a very fast pace. India has been regarded as “Surrogacy Capital of World”. According to a report (Hindustan Times, 2011), the industry of reproductive outsourcing, referring particular to commercial gestational surrogacy in India, is estimated to be worth over Rs 2000 crore. Statistics indicate that Indian surrogacy clinics handled around 1,500 surrogacy births for domestic and overseas couples in 2010. This indicates a jump of 50 percent in two years.[2]

This is because the cost of having a baby through a surrogate is one third of the cost of surrogacy in other western nations. There are many other factors such as very less regulation in this sector, easy availability of poor Indian surrogates who are less prone to drinking and smoking, provision of inclusion of name of biological parents on birth certificate etc. which result in an increase in surrogacy rates in India.

Surrogacy is not legal in Australia, Canada, France, Hungary, Japan, Netherlands, and Belgium while it is legal in UK and USA. The Brazier Report has estimated that between 100 and 180 arrangements are made in the UK each year, resulting in 50 to 80 births.[3]

Is surrogacy profitable for all? [4]

At first look, surrogacy seems to fulfill the needs of both the infertile couple and the surrogate.  The surrogate gets her money and the couple gets a child. But the real picture reveals the bitter truth. There is no proper regulation in India due to which both the surrogate mother and the couple are exploited at length. And the middle men and the agencies get most of the profit.  In 2005, ICMR issued certain guidelines for regulation of ART clinics in India, but these are rarely followed. Cross border childless couples have to bear many problems such as language barrier and many times also have to fight long legal battles. After the birth of the child, the couple has to stay 2-3 months in India to complete all the formalities. It leads to problem in nationality, citizenship, motherhood and parentage of the child. There have been many cases in which the nationality of the child has been denied for example the German couple with twin surrogate children or the Israeli gay couple who had to undergo DNA testing to establish parentage. There have been cases where the child given to the parents after surrogacy is not genetically related to them and are then disowned by the intended parents and have to lead their lives in orphanage.

The problems of surrogate mothers are even worse and unethical. The poor and illiterate women are lured by the middlemen who then make money by exploiting them. These women do not have any right on their bodies.  Moreover, in India there is no provision of psychological or legal counseling for the surrogate mother which is necessary in USA. After the surrogacy recruitment by the agency, the surrogate mothers are taken to a hostel where they have to spend the gestation period. The actual motive of this act is to avoid any social stigma of them being outcast by their communities. These women are not allowed to go out of the house or to meet their families except on particular decided days. If the outcome of the surrogacy in unfavorable, then the payment of surrogates is highly unlikely.

Moreover there is no provision of insurance or medical support for the surrogate women. Rich and career oriented women are opting for surrogacy as it reduces their stress.  There are a large number of ethical and legal problems related to surrogacy and implementation of laws is extremely necessary.  Surrogacy objectifies the child and makes it a commodity for contract. The amount that is to be paid to the surrogate is generally decided by the clinic. As there are no fixed guidelines for the payment, surrogates are usually exploited at lengths. In many cases, after the delivery, the family members of the surrogate do not accept her. If the intended parents don’t want the child, the child is aborted without the consent of the surrogate. Usually the surrogacy contract is between the intended parents and the surrogate. The medical clinics always want to avoid the legal hassle. In cases where the baby born is deformed, the intended parents reject the child, due to lack of regulation in this field. Surrogacy uses the bodies of poor women and they are treated as disposable objects. Commercial surrogacy is highly stigmatized in Indian society.

Reproduction in Indian societies is regarded acceptable only within a marriage, done outside the marriage it can be seen as a dirty work. The relation of the surrogated mother to the child she is carrying is nothing but womb leasing or womb for rent. After the birth of the child she has no right to keep the child because she is neither the mother (where both ova and sperm are from different persons) nor the owner of the genetic material. She is only a contractor who is willing to give the end product once the contract between her and the person is fulfilled.

Indian Council for Medical Research guidelines

The Indian Council for Medical Research had given Guidelines in the year 2005 regulating Assisted Reproductive Technology procedures. The Law Commission of India submitted the 228th report on Assisted Reproductive Technology procedures discussing the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. The following observations had been made by the Law Commission:

  1. Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
  2. A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
  3. A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
  4. One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
  5. Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
  6. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
  7. Right to privacy of donor as well as surrogate mother should be protected.
  8. Sex-selective surrogacy should be prohibited.
  9. Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

Indian surrogates are implanted with up to 5 embryos, which increase the health risks for the surrogate as well as the baby. In US the maximum number of embryo that can be implanted is 2. The Supreme Court of India, through the Manji Yamada Case [5], held that commercial surrogacy is legal in India.  This case involved Baby Manji born on 25-7-2008, under a surrogacy agreement made between Japanese biological parents and an Indian surrogate mother. The child became focus of legal as well as diplomatic crisis soon after her birth. He intended parents had divorced months before her birth. The genetic mother was refusing the child, while the father and grandmother did want to raise the child. Finally the custody of the child was given to her grandmother. In another case, Jan Balaz vs. Union of India[6] , the question raised before the court was whether a child born in India, to a surrogate mother, an Indian national, whose biological father is a foreign national, would get citizenship in India. The Gujarat High Court bestowed Indian citizenship on the twin babies. Currently this case is pending in Supreme Court of India.

Conclusion and Recommendations

Right to reproduce is a fundamental right of every human being. Surrogacy solves both the problems of social as well as biological infertility. However, there are a lot of regulations needed in this field. Following points can be taken as suggestion for the same:

  • The amount that is to be paid to the surrogate should be fixed.
  • Full medical and financial support should be given to the surrogate during gestation.
  • The minimum time up to which the surrogate mother should be allowed to nurse the child should be laid down.
  • Right of termination of pregnancy anytime should be given to the surrogate, if she suffers from any physical or emotional trauma.
  • There should be proper legislation on this matter.
  • People should be made to understand the need of surrogacy so that they would change their conservative approach.
  • Citizenship and nationality of the child should properly be decided.
  • There should be a right based legal framework for the surrogate.
  • There should be substantial regulation for the interest of the child.
  • The clinics or the agencies who are the third party to the contract should have least power.
  • The surrogate mother should be provided medical care not only till pregnancy but also after pregnancy till her body is fit.
  • Health insurance for the surrogate should be provided.
  • The surrogacy clinics should be monitored by government.
  • Adoption regulations should be lessened so that people go for adoption and not for surrogacy.

Peri Pratima is a second year student at HNLU


endnotes

[1] Stauch, M., and Wheat,K. with Tingle J., 2006. “Text, Cases & Materials on Medical Law”, 3rd Edition, New York: Routlage, p.389.

[2] Smith. 2011. Indian Surrogacy Journey. [online] Available at: http://www.surrogacyclinics.com/tag/commercial-surrogacy-in-india/ .

[3] Margaret Brazier, Alastair Campbell and Susan Golombok, Surrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation (HMSO: London,1998) Cm 4068 para 6.22 as cited in , E., 2010. “Medical Law: Text, Cases and Materials”, 2nd Edition, New York: Oxford, p.829.

[4] Summary taken from Anita Rao, Surrogate Motherhood-Legal perspective as cited in Kelra,K., 2010. Surrogacy Arrangements: Legal and Social Issues. Journal of Law Teachers of India. Volume 1(Issue No.1-2).p.131.

[5] Baby Manji Yamada vs. Union of India and Another. (2008) 13 SCC 518.

[6] From L.P.A. No. 2151 of 2009, High Court of Gujarat

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