Paper Details Paper Code: RP-CLA-V2-04 Category: Research Paper Date of Submission for First Review: March 28, 2022 Date of Acceptance: July 6, 2022 Citation: Dr. Sangeeta Chatterjee, “Surrogacy (Regulation) Act 2021 in India: Problems and Prospects”, 2, AIJACLA, 52, 52-67, (2022).
Author Details: Dr. Sangeeta Chatterjee, Assistant Professor, Department of Law, Bankura University, West Bengal
Abstract Surrogacy is one of the unique methods of creating new human beings by human beings, irrespective of the existence of biological or natural process of giving birth to new children. Every new technology has some merits and demerits; as such, surrogacy is not an exception. It was discovered for bringing smile in the face of childless parents; therefore, it had some benevolent purpose. But, with the passage of time it is severely misused by some self-centred and mean-minded persons for malevolent purposes, who are always interested in earning money by exploiting the surrogates throughout the process. This situation is prevalent not only in India, but in other countries of the world also, more specifically in the developing and underdeveloped countries, where huge number of population is suffering from poverty and inequality of income. At this juncture, India has enacted the Surrogacy (Regulation) Act, 2021. The Act has prohibited Commercial Surrogacy in India. Therefore, it is high time to think about problems and prospects of the Act, otherwise this noble method of surrogacy will lose its cherished goals of becoming a boon for mankind and will turn into a bane for the human beings. In this backdrop, the study would like to analyse the nature and purpose of surrogacy, to probe into the existing legislations on surrogacy throughout the world including India. Keywords: Surrogacy; Surrogate; Commercial; Prohibition; Problems
“The greatest good is what we do for one another.”
– Mother Teresa
PROLOGUE
Human world is created by God, wherein God is superior and controller of the universe, man is just subordinate to him. Everything in this world is regulated by God, his power is unlimited. Man is just having limited powers, owing to which man can only use the powers given to him by God, beyond that he cannot create anything further. But with the passage of time, advancement of science and technology has given enormous powers to man. Though man cannot become the God and can never control nature, but now he has become the master himself. He has discovered the whole world, invented techniques for flying from one country to another within a limited period of time, discovered atomic energy having power either to destroy the universe or to create beneficial projects for the human beings. Not only that, man can now create his photocopy by human cloning and can produce biological children to childless couple by way of surrogacy.
Surrogacy is one of the unique methods of creating new human beings by human beings, irrespective of the existence of biological or natural process of giving birth to new children. Surrogacy is the process of bringing smile in the faces of childless parents with their own child having some blood relationship with them. It is an alternative support system for those who are not interested to take adoption. Since very old period, adoption was a socially recognized process of having children by the childless parents. But with the passage of time, it has lost its significance owing to the desire of few childless couples for getting their own children. This particular wish has resulted into the advancement of science and technology as well as social changes to take the method of surrogacy for begetting children by way of traditional or gestational techniques. Therefore, surrogacy is the process of conquering the nature by man from the perspective of begetting child by human control.
Every new technology has some merits and demerits; as such, surrogacy is not an exception. It was discovered for bringing smile in the face of childless parents; therefore, it had some benevolent purpose. But, with the passage of time it is severely misused by some self-centred and mean-minded persons for malevolent purposes, who are always interested in earning money by exploiting the surrogates throughout the process. This situation is prevalent not only in India, but in other countries of the world also, more specifically in the developing and underdeveloped countries, where huge number of population is suffering from poverty and inequality of income. At this juncture, India has enacted the Surrogacy (Regulation) Act, 2021. The Act has prohibited Commercial Surrogacy in India. Therefore, it is high time to think about problems and prospects of the Act, otherwise this noble method of surrogacy will lose its cherished goals of becoming a boon for mankind and will turn into a bane for the human beings.
In this backdrop, the study would like to analyze the nature and purpose of surrogacy, to probe into the existing legislations on surrogacy throughout the world including India, to find out the judicial decisions of Indian courts on the issue and to analyze the problems and prospects of the Surrogacy (Regulation) Act, 2021.
At the first instance, it is necessary to understand the meaning and nature of Surrogacy. Next part of the study shall concentrate on this aspect.
SURROGACY: CONCEPT AND NATURE
Surrogacy is a method or technique of providing assistance to someone who is unable to procure child by natural or biological process. In this respect, it is called assisted reproduction method. The term ‘surrogate’ is originated from the Latin term ‘surrogatus’, which is a variant of ‘subrogare’, meaning thereby subrogate or substitute.[1] In fact, it is a method of subrogation or substitution of natural mother by surrogate mother, who gives birth to the child, in case of incapacity of the natural mother to beget the child. Therefore, a number of meanings are found of the term ‘surrogate’, like substitute, subrogate, deputize, foster, replace etc.[2] It also means to act in the place of. The term surrogacy is used when a woman carries a pregnancy and gives birth to a baby for another woman. This woman may be the child’s genetic mother, in case of traditional surrogacy, or she may carry the pregnancy to delivery after having an embryo, to which she has no genetic relationship, transferred to her uterus, in case of gestational surrogacy. If the pregnant woman received compensation for carrying and delivering the child, the arrangement is called a commercial surrogacy, otherwise the arrangement is called altruistic surrogacy.[3]
The method of surrogacy involves three persons, the natural father, natural mother and the surrogate mother, who is a third person, but gives birth to the child in order to deliver it to the natural parents. Practically, though the surrogate mother is a third person, but she plays the prime role in begetting the child, because she gives birth to the child physically. In this process, the natural father always remains genetic father of the child. But the natural mother does not become genetic mother in case of traditional surrogacy, where surrogate mother conceives the child naturally or impregnated by fertility methods. In such case, surrogate mother becomes genetic mother. On the contrary, natural mother remains the genetic mother in case of gestational surrogacy, where embryos are produced through assisted reproductive technology in IVF method into a lab with the genetic father’s sperm and genetic mother’s eggs. The produced embryos are implanted into the surrogate mother’s uterus. In the second method, surrogate mother remains only a carrier for begetting the child and does not have any genetic or other connection with the child. In fact, this method has become more popular in the now-a-days, which has raised a number of questions regarding morality and immorality on the issue of surrogacy. In this respect, it is necessary to discuss the meaning of Surrogacy as provided by Reproductive Technology Council.
MEANING OF SURROGACY BY REPRODUCTIVE TECHNOLOGY COUNCIL
The Reproductive Technology Council defines Surrogacy as a practice whereby a woman agrees to become pregnant and bear a child for another person or persons, to whom she intends to transfer the child’s care at, or shortly after, birth.[4] The definition of Reproductive Technology Council is inclusive and it includes everything within its scope and ambit relating to surrogacy, but it does not specifically clear about the type or motive of surrogacy. Therefore, both the traditional and gestational surrogacy would come within it. Again, both commercial and non-commercial surrogacy could be included within it. Hence, it has not capacity to remove any debate on surrogacy.
Meaning and nature of Surrogacy shall remain incomplete without the discussion of types of Surrogacy. Therefore, the study will probe into it.
TYPES OF SURROGACIES
Generally, four types of surrogacy options are found: -
i) Traditional surrogacy
In this surrogacy, surrogate mother is also the genetic mother of the baby. It is basically the oldest form of commercial surrogacy and is common in America. The child may be conceived naturally or impregnated by fertility methods of IUI (intrauterine insemination) or ICI (intra-cervical insemination) performed by infertility doctors at a certified infertility clinic.[5]
ii) Gestational surrogacy
It is an Assisted Reproductive Technology where embryos are produced through the IVF (In Vitro Fertilization) process into a lab with the biological father’s sperm and mother’s eggs. Then the complete embryos are implanted into the surrogate mother’s uterus. In this surrogacy process a gestational surrogate has no biological link with the kids she carries.[6]
iii) Commercial surrogacy
In this process, an individual or couples have to pay a fee (except medical and other reasonable expenses) to the woman who carries and deliver their baby. After birth the baby is turned over to the couple either through a legal or private adoption process. In short, Commercial Surrogacy is when the surrogate mother receives compensation for carrying and delivering the child.[7]
iv) Altruistic surrogacy
In this process, woman who carries the baby of infertile couple, receives no financial reward for carrying the baby or the relinquishment of the baby. Though the expense related to the pregnancy and birth of baby are paid by the intended parents. In other words, woman who becomes pregnant and bears a child for another person and after birth intends to transfer the baby without being compensated monetarily in any way in order to surrogacy, is a part of Altruistic Surrogacy.[8]
Among all these four types of Surrogacy, the traditional method of surrogacy was followed in different countries since the age old period, which is still continuing thereby. But, in the recent period, commercial surrogacy is practiced extensively throughout the world, either legally or illegally. A number of ethical issues has been raised against this practice as well as it is used as an instrument for exploitation of poor women in the society. Considering all these aspects, altruistic surrogacy is the best method, which is beneficial for the mankind in the long run. Now, it is required to understand the origin and history of surrogacy in India.
ORIGIN AND HISTORY OF SURROGACY IN INDIA
Though the term surrogacy is of recent origin, but the practice of surrogacy was age old. In fact, traces of surrogacy were found since the ancient period in India. In the Bhagvata Purana, a story of Kans, Devaki and Vasudeva produces the evidence of practice of surrogacy during the period of Mahabharata. Kans was a cruel king of Mathura, who had imprisoned his sister Devaki and her husband Vasudeva, because forewarnings were there from the sky that, the eighth son of Devaki and Vasudeva would be the destroyer of Kans. Thereafter, Kans had killed one by one six sons of Devaki by smashing their heads on the floor just after delivery. When the seventh son was conceived, Gods got involved into the matter to save its life. They called Goddess Yogamaya and had her transfer the embryo from the womb of Devaki to the womb of Rohini, who was Vasudeva’s other wife lived with her brother Nanda across the river Yamuna, in the village of cowherds at Gokula. Thus, the child conceived in one womb was incubated in and delivered through another womb.[9]
Perhaps this was the oldest instance of surrogacy in India. This instance produces ample evidence of existence of advanced science and technology during the period of Mahabharata. Though the practice of advanced science and technology was clothed with godliness and mythology, but it was nothing but the practice of surrogacy. It is astonished to see the evidence of surrogacy in India during such an old period.
In order to analyze the present scenario of surrogacy in India, it is important to discuss the international legal arena, because most of the Indian laws are based on the international laws. Next part of the study shall concentrate on this aspect.
SURROGACY: INTERNATIONAL LEGAL ARENA
The United Nations Human Rights, Office of the High Commissioner is presently very much concerned with the practical problems relating to surrogacy. It has tried to take a number of initiatives, one of which is taken during the 37th session of the Human Rights Council in March, 2018. In that session, the Special Rapporteur has presented her thematic report on surrogacy and the sale of children. Some key recommendations from her report are listed below:-
1) Adopt clear and comprehensive legislation that prohibits the sale of children in the context of surrogacy.
2) Create safeguards to prevent the sale of children in the context of commercial surrogacy, which should include either the prohibition of commercial surrogacy or strict regulation of commercial surrogacy for the protection of rights of surrogate mother.
3) Create safeguards to prevent the sale of children in the context of altruistic surrogacy.
4) Ensure that in all parentage and parental responsibility decisions involving a surrogacy arrangement, a court or competent authority makes a post-birth best interest of the child determination, which should be the paramount consideration.
5) Closely regulate, monitor and limit the financial aspects of all surrogacy arrangements, with a requirement for full disclosure of the financial aspects of all surrogacy arrangements to the court or competent authority reviewing the surrogacy arrangement.
6) Regulate all intermediaries involved in surrogacy arrangements, in regard to the financial aspects, relevant competencies, use of contractual arrangements and ethical standards.
7) Protect the rights of all surrogate-born children, regardless of the legal status of the surrogacy arrangement under national or international law.
8) Ensure that any international regulation developed in regard to surrogacy should focus on both private international law and public international law.
9) Encourage other human rights mechanisms, such as the Committee on the Rights of the Child and the Committee on the Elimination of Discrimination against Women, and United Nations entities to contribute, with further research, to discussions on surrogacy.[10]
Surrogacy is an emerging concept in the international legal arena also. Hence, United Nations is trying to address every aspect of surrogacy and the challenges of legalization of commercial as well as altruistic surrogacy in the member countries. Now it is obvious to understand the practice of surrogacy in different countries.
SURROGACY IN DIFFERENT COUNTRIES
Australia is a leading country on the point of enacting legislations for controlling commercial surrogacy. Most Australian states have specific legislations outlining the requirements for surrogacy. In the absence of legislation, states and territories are required to abide by national ethical guidelines issued by the National Health and Medical Research Council (NHMRC).[11] Under the Assisted Reproductive Treatment Act, 2008 of Victoria the requirements of surrogacy are as follows[12]:-
1) The commissioning parents –
(a) Must be infertile to carry a baby or give birth, or
(b) There is a likely medical risk to the mother or baby, if pregnancy is carried out.[13]
2) The surrogate mother –
(a) Must be at least 25 years old.
(b) Must have previously been pregnant and given birth to a live child.
(c) Must not use her own eggs in the surrogacy arrangement.[14]
In some countries, like Austria, Germany, Italy and Switzerland, surrogacy is prohibited and severe sanctions are applied for doctors who arrange a surrogacy for their patients or for mediators who help an infertile couple find a surrogate. In Germany for instance, the Embryo Protection Act, 1990 strictly prohibits artificial insemination of a woman who is willing to hand the child over to commissioning parents upon birth in accordance with a surrogacy agreement. Criminal punishments are imposed for non-compliance, ranging from heavy fines to imprisonment. Surrogacy agreements, mediation in surrogacy and related commercial and non-commercial advertisement are prohibited by the German Adoptions Act, 1989. In Italy the Law on Norms in the Area of Medically Assisted Reproduction completely bans heterologous (third party) reproduction, including surrogacy. In Spain, surrogacy contracts are null and void, but surrogacy per se is not prohibited by law and theoretically can be implemented.[15]
Therefore, it is found that, most of the leading countries of the world have neither legalized commercial surrogacy, nor the surrogacy contracts. Practically, they are opposing the use of surrogacy method, because of the chances of misusing it. In this respect, the paradox of Baby M. Case will help to understand the critical situation at the grass root level, which is highlighted hereunder.
THE PARADOX OF BABY M. CASE
The issue of surrogate motherhood came to national attention during the 1980s, with the Baby M case. In 1984 a New Jersey couple, William Stern and Elizabeth Stern, contracted to pay Mary Beth Whitehead $10,000 to be artificially inseminated with William Stern's sperm and carry the resulting child to term. Whitehead decided to keep the child after it was born, refused to receive the $10,000 payment, and fled to Florida. In July 1985, the police arrested Whitehead and returned the child to the Sterns. In 1987 the New Jersey Superior Court upheld the Stern-Whitehead contract. The court took all parental and visitation rights away from Whitehead and permitted the Sterns to legally adopt the baby, whom they named Melissa Stern. A year later, the New Jersey Supreme Court reversed much of this decision. That court declared the contract unenforceable but allowed the Sterns to retain physical custody of the child. The court also restored some of Whitehead's parental rights, including visitation rights, and voided the adoption by the Sterns. Most important, the decision voided all surrogacy contracts on the ground that they conflict with state public policy. However, the court still permitted voluntary surrogacy arrangements. The Baby M. decision inspired state legislatures around the United States to pass laws regarding surrogate motherhood. Most of those laws prohibit or strictly limit surrogacy arrangements.[16]
After discussing the international legal arena and considering the worldwide legal scenario in respect of surrogacy, now it is high time to discuss the Indian legal perspective of surrogacy. Next part of the study shall concentrate on it.
INDIAN LEGAL PERSPECTIVE
In India, there was no direct legislation on surrogacy till 2021. The Assisted Reproductive Technology (Regulation) Bill and the Surrogacy (Regulation) Bill were only two helping hands for parents who would like to go for surrogacy. Both the bills were pending before Indian Parliament due to long time controversy over those. Finally, the bills are amended accordingly to suit the present Indian needs and are enacted into statutes, namely, the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021. However, little indirect legislation is available herein to protect the reproductive rights of women, like the Medical Termination of Pregnancy Act, 1971 and the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. But, practically these laws cannot solve the issues like, exploitation of women owing to commercial surrogacy or the rights of surrogate mother or the causes and consequences for breach of surrogacy contract. Enactment of two new direct legislations has become a boon in this respect in India. However, the new laws are also subjected to criticisms for betterment of future perspective. These laws are discussed hereunder.
THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021
The Parliament of India has enacted the Assisted Reproductive Technology (Regulation) Act, 2021 on 18th December, 2021. This Act specifically speaks for the regulation and supervision of the assisted reproductive technology clinics and the assisted reproductive technology banks. It deals with the prevention of misuse, safe and ethical practice of assisted reproductive technology services for addressing the issues of reproductive health. It is applicable, where assisted reproductive technology is required for becoming a parent or for freezing gametes, embryos, embryonic tissues for further use due to infertility, disease or social or medical concerns and for regulation and supervision of research and development and for matters connected therewith or incidental thereto.
Section 2 (1) (a) of the Act defines Assisted Reproductive Technology (ART), which means all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the reproductive system of a woman. Section 2 (1) (b) and Section 2 (1) (c) define Assisted Reproductive Technology Bank and Assisted Reproductive Technology Clinic respectively, which are the two important wings of Assisted Reproductive Technology system. Apart from a number of definitions necessary for the effectiveness of the Act, it also makes provisions for establishment of National Board, State Board and National Registry as well as prescribes punishments for violating the provisions of the Act. Main features of the Act are highlighted below.
i) Key features of the Act
▪ Safe ART: The Act makes provisions for safe and ethical practice of assisted reproductive technology services in the country.
▪ Pre-Implantation Genetic Testing Mandatory: Section 25 of the Act has provided that, Pre-Implantation Genetic testing shall be used to screen the human embryo for known, pre-existing, heritable or genetic diseases.
▪ Constitution of the National Assisted Reproductive Technology and Surrogacy Board: Section 3 of the Act makes provision for constitution of the National Board to lay down code of conduct to be observed by persons working at ART clinics and banks under Section 5.
▪ Constitution of the State Assisted Reproductive Technology and Surrogacy Boards: Section 6 of the Act makes provision for constitution of the State Boards to follow the policies and plans laid down by the National Board for ART clinics and banks in the States under Section 8.
▪ Establishment of the National Assisted Reproductive Technology and Surrogacy Registry: Section 9 of the Act speaks for the establishment of the National Assisted Reproductive Technology and Surrogacy Registry to act as a central database in the country of all the ART clinics and banks under Section 11.
▪ Appointment of the Appropriate Assisted Reproductive Technology and Surrogacy Authority: Section 12 of the Act speaks for the appointment of one or more Appropriate Assisted Reproductive Technology and Surrogacy Authorities for the States and Union territories to grant, suspend or cancel registration of an ART clinic or bank and to take appropriate legal action against the misuse of assisted reproductive technology by any person under Section 13.
▪ Punishment: The Act prescribes stringent punishments for practising sex selection, sale of human embryos or gametes, run an agency, a racket or an organisation for selling, purchasing or trading in human embryos or gametes. Section 32 prescribes punishment for sex selective ART with imprisonment for a term which shall not be less than 5 years but may extend to 10 years or with fine which shall not be less than 10 lakh rupees but may extend to 25 lakh rupees or with both. Section 33 prescribes punishment for contravention of the provisions of the Act with a fine which shall not be less than 5 lakh rupees but may extend to 10 lakh rupees for the first contravention and for subsequent contravention, shall be punishable with imprisonment for a term which shall not be less than 3 years but may extend to 8 years and with fine which shall not be less than 10 lakh rupees but may extend to 20 lakh rupees.
Though the main features of the Act are praiseworthy, but a critical analysis of the Act is required to find out its effectiveness in the long run. Apart from the Assisted Reproductive Technology (Regulation) Act, 2021, the Surrogacy (Regulation) Act, 2021 is also passed in the same year, discussion of which is the prime concern of the study. Therefore, basic outline and key features of the Act are presented hereunder.
THE SURROGACY (REGULATION) ACT, 2021
The Parliament of India has enacted the Surrogacy (Regulation) Act, 2021 on 25th December, 2021. This Act specifically speaks for the constitution of National Assisted Reproductive Technology and Surrogacy Board, State Assisted Reproductive Technology and Surrogacy Boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy and for matters connected therewith or incidental thereto.
Section 2 (1) (zd) of the Act defines Surrogacy, which means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth. Section 2 (1) (ze) and Section 2 (1) (zg) define Surrogacy Clinic and Surrogate Mother respectively, which are the two important arms of Surrogacy system. Apart from a number of definitions necessary for the effectiveness of the Act, it also makes provisions for prohibition of Commercial Surrogacy and approval of Altruistic Surrogacy as well as prescribes punishments for violating the provisions of the Act. Main features of the Act are highlighted below.
i) Key features of the Act
▪ Definition of Altruistic Surrogacy: Section 2 (1) (b) of the Act defines Altruistic Surrogacy, which means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative.
▪ Definition of Commercial Surrogacy: Section 2 (1) (g) of the Act defines Commercial Surrogacy, which means commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother.
▪ Regulation of Surrogacy Clinics: Section 3 of the Act provides that, on and from the date of commencement of this Act, no surrogacy clinic, unless registered under this Act, shall conduct or associate with, or help in any manner, in conducting activities relating to surrogacy and surrogacy procedures.
▪ Regulation of Surrogacy and Surrogacy Procedures: Section 4 of the Act provides that, on and from the date of commencement of this Act, no place including a surrogacy clinic shall be used or cause to be used by any person for conducting surrogacy or surrogacy procedures, except for the purposes of gestational or altruistic surrogacy and not for commercial surrogacy.
▪ Constitution of the National Assisted Reproductive Technology and Surrogacy Board: Section 17 of the Act makes provision for constitution of the National Board to lay down code of conduct to be observed by persons working at surrogacy clinics under Section 25.
▪ Constitution of the State Assisted Reproductive Technology and Surrogacy Boards: Section 26 of the Act makes provision for constitution of the State or Union Territory Boards to review the activities of the appropriate authorities functioning in the State or Union territory and recommend appropriate action against them.
▪ Establishment of the National Assisted Reproductive Technology and Surrogacy Registry: Section 15 of the Act speaks for the establishment of the National Assisted Reproductive Technology and Surrogacy Registry for the purposes of registration of surrogacy clinics under this Act.
▪ Appointment of the Appropriate Assisted Reproductive Technology and Surrogacy Authority: Section 35 of the Act speaks for the appointment of one or more Appropriate Assisted Reproductive Technology and Surrogacy Authorities for the States and Union territories to grant, suspend or cancel registration of a surrogacy clinic and to take appropriate legal action against the misuse of surrogacy by any person under Section 36.
▪ Punishment: The Act prescribes stringent punishments for practising sex selection, undertaking commercial surrogacy, exploitation of surrogate mothers and children born through surrogacy. Section 38 prescribes punishment for all these offences with imprisonment for a term which may extend to 10 years and with fine which may extend to 10 lakh rupees. Section 39 prescribes punishment for contravention of the provisions of the Act with imprisonment for a term which may extend to 5 years and with fine which may extend to 10 lakh rupees. Section 40 prescribes punishment for not following altruistic surrogacy with imprisonment for a term which may extend to 5 years and with fine which may extend to 5 lakh rupees for the first offence and for any subsequent offence with imprisonment which may extend to 10 years and with fine which may extend to 10 lakh rupees.
The key features of the Act are very impressive, especially the provisions for prohibition of commercial surrogacy and implementation of altruistic or gestational surrogacy, but there are certain practical difficulties which should be removed for effective enforcement of the Act in the long run. A critical analysis of this Act is necessary, but before that, role of Indian Judiciary for favouring surrogacy is required to be mentioned. Next part of the study shall concentrate on this aspect.
ROLE OF INDIAN JUDICIARY FAVOURING SURROGACY
Surrogacy is a new concept and follows a cumbersome procedure to give birth to a surrogate child. The system includes different parties from different places, not only which, there are chances of engagement of a number of self-interested persons and businessmen, who would like to make profit from commercial surrogacy. Commercial Surrogacy was practised in large scale in India before the passing of the present Act, especially for the benefit of the childless foreign couples, wherein huge amount of monetary transactions was involved either directly or indirectly. In this situation, there were the chances of exploitation of surrogate mothers and violation of rights of surrogate children. In the absence of express legislation on the subject, Indian Judiciary has come in the forefront to protect those weaker persons involved in the system of surrogacy. The role of Indian Supreme Court in this respect has created the pathway for enactment of the Surrogacy (Regulation) Act, 2021 in India.
A landmark judgement relating to surrogacy in India is the Baby Manji Yamada vs Union of India[17] case. In this case, Baby Manji Yamada was a child born to an Indian surrogate mother for a Japanese couple who before a month of the child’s birth separated and the future of the child was left in dark. The biological father, Ikufumi Yamada wanted to take the child to Japan but the Indian legal framework was not favourable therefore, also the Japanese government did not permit him to bring the child back home. Finally, the Supreme Court of India had to intervene and the child was allowed to leave the country with her grandmother. This judgement has shaken the Indian legislature and has opened the door for enactment of express legislation to specify the legal dimensions of surrogacy in India. Therefore, the contribution of Indian Judiciary behind the enactment of surrogacy laws in India is no doubt praiseworthy.
PROBLEMS OF THE SURROGACY (REGULATION) ACT, 2021
It is already mentioned that, the Surrogacy (Regulation) Act, 2021 is a social beneficial legislation in India, which has all the prospects of protecting the rights of surrogate mother and surrogate child. But, the Act has certain practical problems owing to which it is difficult to implement the Act in future. Also there are few loopholes in the Act. The problems of the Act are discussed hereunder: -
1) The Act has defined abandoned child as a child who is declared abandoned by the appropriate authority after due enquiry, but there might be cases of abandoned children after surrogacy, outside the knowledge of the appropriate authority.
2) The Act has permitted Altruistic Surrogacy only, but there is a practical difficulty in finding out surrogates for altruistic surrogacy all the time.
3) The Act has prohibited Commercial Surrogacy due to its negative side effects on the surrogate mothers, but simultaneously it has also taken away the scope of poor women for earning money by way of becoming surrogate mothers.
4) Under the Act, couple means the legally married Indian man and woman. Therefore, the Act does not allow couples undergoing live-in-relationship to have their children through surrogacy.
5) Again, couple under the Act includes only legally married Indian man and woman, which means, third gender or homosexual couples cannot bear their children through surrogacy under the Act.
6) Under the Act, intending woman means an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy. As such, the Act does not allow unmarried women to have surrogate child, whereas, guardianship of single mother is legally allowed in India. Also the age limit of 35-45 years for becoming mother through surrogacy is questionable, why not below 35 years or beyond 45 years?
7) Though sex selection in any form of surrogacy is punishable under the Act, but practically, it cannot be stopped in a country like India, where corruption and bribery are practised at every level of governance. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 is the burning example of it, long after passing of which female foeticide could not be stopped.
8) Registration of Surrogacy Clinics under the Act is a good initiative, but again there are chances of escaping the long arms of the law owing to corruption and bribery.
PROSPECTS OF THE SURROGACY (REGULATION) ACT, 2021
The Surrogacy (Regulation) Act, 2021 is a social welfare legislation in India, which is enacted for protecting the rights of surrogate mother and surrogate child. No doubt, the Act is praiseworthy. Inspite of certain practical problems, there are huge prospects of the Act in future. The prospects of the Act are discussed hereunder: -
1) The Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021 will move together for legalising the birth of a surrogate child, this is the main benefit of both the Acts.
2) One important prospect of the Act is that, it has permitted Altruistic Surrogacy, which if encouraged further, will develop a society where we shall understand the benefit of serving one another without a motive of profiteering.
3) Another important prospect of the Act is that, it has prohibited Commercial Surrogacy, which will straightway prevent the exploitation of surrogate mothers and surrogate children.
4) Only the legally married Indian couples are allowed under the Act to go for surrogacy and not the foreign couples, which is a great advantage of the Act for prevention of baby selling in the foreign countries in the name of surrogacy.
5) Introduction of the arrangement of insurance for the surrogate mothers during the process of surrogacy is another benefit of the Act.
6) Constitution of the National Assisted Reproductive Technology and Surrogacy Board and State Assisted Reproductive Technology and Surrogacy Boards under the Act is a good initiative for laying down code of conduct to be observed by persons working at surrogacy clinics.
7) Establishment of the National Assisted Reproductive Technology and Surrogacy Registry for the purposes of registration of surrogacy clinics is another future prospect of the Act.
8) Appointment of one or more Appropriate Assisted Reproductive Technology and Surrogacy Authorities for the States and Union territories to grant, suspend or cancel registration of a surrogacy clinic and to take appropriate legal action against the misuse of surrogacy by any person is the next future prospect of the Act.
9) Prohibition of sex selection is enforced under the Act. It provides that, sex selection in any form of surrogacy is punishable under the Act, which is no doubt praiseworthy and will become helpful for further implementation of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
10) The Act prescribes stringent punishments for practising sex selection, undertaking commercial surrogacy, exploitation of surrogate mothers and children born through surrogacy. The punishments range from 5 years to 10 years’ imprisonment and with fine of 10 lakh rupees. Prescription of such an amount of enhanced punishment will become beneficial for implementation of the Act in future.
EPILOGUE A study of the problems and prospects of the Surrogacy (Regulation) Act, 2021 will provide an idea that, this piece of legislation is an effective legislation for preventing the curse of commercial surrogacy in India. India became a market for commercial surrogacy for providing surrogate children to wealthy childless couples of foreign countries in lieu of huge amount of money. Illegal rackets were running throughout the country for giving birth to surrogate children and baby selling for which poor women were captured, exploited and forcefully impregnated, which created miserable condition for certain classes of women. In the absence of express legislation, rights of surrogate mothers and surrogate children were also not protected and the cases, like Baby Manji have occurred. At this juncture, enactment of this new law has become a boon for certain sections of citizens of Indian society.
[1] ‘Surrogate’ <www.en.m.wiktionary.org> accessed 27 March 2022. [2] ibid. [3] Ms Rashmi V Adsure, ‘Surrogacy – Socio-Economic Implications (Positive & Negative Impact on the Women as well as on Society)’ in Dr Bimal N Patel, Dr Mamata Biswal and Dr Anand Kumar Tripathi (eds), Live-In-Relationship and Surrogacy: Legal Implications and Social Issues (Gujarat National Law University, Gandhinagar, Gujarat 2012) 108. [4] ‘Surrogacy’ <www.rtc.org.au/assisted-reproductive-technology-glossary/surrogacy> accessed 27 March 2022. [5] Adsure (n 3) 108. [6] ibid. [7] ibid 108-09. [8] Ibid 109. [9] Dr Devdutt Pattanaik, ‘Infertility, Artificial Insemination and Surrogate Mother in Hindu Mythology’<www.blog.drmalpani.com/2014/11/infertility-artificial-insemination.html?m=1> accessed 27 March 2022. [10] Surrogacy <www.ohchr.org/EN/Issues/Children/Pages/Surrogacy.aspx> accessed 27 March 2022. [11] <www.betterhealth.vic.gov.au/bhcv2/bhcarticles.nsf/pages/Surrogacy_the_issues?open> accessed 27 March 2022. [12] ibid. [13] ibid. [14] ibid. [15] Dr Mamata Biswal and Sushil Goswami, ‘Surrogacy: Social Dimensions and Legal Ramification’ in Dr Bimal N Patel, Dr Mamata Biswal and Dr Anand Kumar Tripathi (eds), Live-In-Relationship and Surrogacy: Legal Implications and Social Issues (Gujarat National Law University, Gandhinagar, Gujarat 2012) 105-06. [16] <https://shodhganga.inflibnet.ac.in/bitstream/10603/57389/8/08_chapter%202.pdf> accessed 27 March 2022. [17] [2009] SC 84 (AIR).