1 Baby Manji Yamada vs. Union of Indiaand Another (2008) 13 SCC 5182Supra 13http://www.prsindia.org/uploads/media/Surrogacy/SCR-%20Surrogacy%20Bill,%202016.pdf4 https://www.hrc.org/resources/overview-of-the-surrogacy-process5See Wombs for rent: A tale of twomothers, BBC News World, July 28, 2011, available at http://www.
bbc.co.uk/news/world-14138394,(Last visited on August 1, 2011)6Supra 37 Supra 3 8 Supra 49 B.K.
PARTHASARATHI V/S GOVERNMENT OFANDHRA PRADESH, decided on Tuesday, September 14, 1999. In the High Court ofAndhra Pradesh, W.P. 19068 Of 199710 1975 SCC (2) 14811https://www.cbsnews.com/news/india-ban-surrogacy-potential-foreign-parents/ICMR Medical Guidelines on regulating ART,Surrogacy 2005 contains no bar to surrogacy for single parent in India.While this Surrogacy bill awaits enactment,it is pertinent to refer and reiterate existing Supreme Court judicialpronouncement and the existing Law commission report and the Medical councilguidelines on surrogacy, these seek to permit for single parent surrogacy. Variousstakeholders are in support to allow the individuals who are single includingunmarried, separated, widows, transgender, and single parents to exercise theirright to parenthood.
They argued that if single individuals are financiallycapable of taking care of their children and if they have family support, theyshould be fully entitled to have children through surrogacy. They felt thatrestricting the people to commission surrogacy on the basis of their maritalstatus, would be violation of human rights. IndianForeign Minister Sushma Swaraj, who was part of the government panel thatdrafted the legislation, said, “Many so-called childless couples were misusingthe wombs of poor women. It was a matter of great worry because there wereinstances where a girl child or disabled child have been abandoned soon afterbirth.”11The couples turned to Indiabecause of the cheap costs. Parents paid around $25,000 to have a local womanfertilized with their embryos and then carry the child to birth. In the U.
S.,it would cost them at least four times as much. Earlier,the foreigners coming to India to commission surrogacy were given tourist visa.Later in the year 2012, it was decided to give medical visa for the surrogacypurpose. After discussion with the Ministry of Health and Family Welfare andMinistry of External Affairs, it was decided that no visa should be issued byIndian missions to foreign nationals intending to visit India for commissioningsurrogacy.
The Standing Committee which reviewedthe Bill, stated in its report that extending the option of commissioningsurrogacy to foreign nationals who choose India because the procedure is muchcheaper here, will lead to complications later. If this Bill is passed,the new law would shut down a thriving, boomingcommercial market for surrogacy in India, in which Indian women gave birthto babies for foreigners, including those from the United States. The Bill restricts its goal only to Indian married couplesand in the view of many, this is discriminatory and violative of the right tolife, personal liberty, reproductive autonomy and right to equality guaranteedto all persons under the Constitution. DISCRIMINATIONAGAINST CERTAIN GROUPS OF PEOPLE However,some are of the view that commercial surrogacy is an honest means to earn andwithin a legal structure and regulatory purview would be of no harm butlegislation is required because as of today, India is being constantly referredto as the commercial surrogacy capital of the world which amounts tocommodification of women and children. To solve this, either the Bill throughenactment should be allowed to put a blanket ban on commercial surrogacy or thecommercial market of surrogacy should be subjected to effective regulations Surrogacyhas been in practice in India for the last few decades.
Due to lack oflegislation to regulate surrogacy, the practice has been misused by thesurrogacy clinics, which leads to rampant commercial surrogacy and unethicalpractices in the said area ranging from commercialization of surrogacy, tradein human embryos, exploitation of surrogate mothers and abandonment of childrenborn through surrogacy. TheSurrogacy Bill puts a total ban on commercial surrogacy and in many opinions,this may lead to opening of unregulated market for this kind of service whichin turn may adversely affect women offering services as surrogates. NATUREOF THE SURROGACY Oneof the criterion listed in the Bill, is that surrogacy can only be availed bythose couples where one or both partners are proven to be infertile. Thedefinition of infertility as the inability to conceive after five years ofunprotected coitus and the condition of subsistence of five years of wedlock aslaid down in Clause 4 (iii)(c)(II) of the Bill respectively have not beenstipulated with due diligence and with due regard to the ground reality insociety.
The definition of ‘infertility’ in the Bill is inconsistent with thedefinition given in the ART (Regulation) Bill, 2014 which describes infertilityas the inability to conceive after at least “one year of unprotected coitus”.This non-coherence will only violate the fundamental right of a person toreproduce to have a child is a part of a person’s personal domain and fixing aperiod of five years will only cause breach of his/her reproductive rights anddelayed or deferred parenthood. InIndia, infertility is considered a social stigma and the infertile couples gothrough a lot of agony and trauma due to infertility. Since, conception hasmany interplay functions, a five-year time bar would add to the misery of thealready distressed intending couples.
The five year waiting period is thereforearbitrary, discriminatory and without any definable logic. Fiveyear waiting period for surrogate parenthood appears to be based on theimpression that surrogacy, which is third party reproduction, is being resortedto as a first choice of family formation which should be checked. However, fromthe information made available to the Committee, it notes that surrogacy is arare practice among childless Indian couples who try various medical optionsbefore they choose surrogacy which costs them anywhere between Rs. 15 to 20lakh.
Incase of the eligibility criteria for the intending parents, the five years’duration before commissioning surrogacy is irrational and arbitrary in manyaspects. In cases like B.K. Parthasarthi vs. Government of Andhra Pradesh9 and in Govind vs. State of MadhyaPradesh10, it has been stated that the five yearwaiting clause was in violation of the right of reproductive autonomy.
Inaddition, what hasn’t been thought through is the fact that in the context oflate marriage, further delay of five years would adversely affect the qualityof gametes of couples or render the couple’s gametes less viable. Limiting the practice of surrogacy to close relatives is notonly non-pragmatic and unworkable but also has no connect with the object tostop exploitation of surrogates envisaged in the proposed legislation. TheStanding Committee on Health and Family Welfare, therefore, recommends that thisclause of “close relative” should be removed to widen the scope of gettingsurrogate mothers from outside the close confines of the family of intendingcouple. Incontext of the eligibility criteria for the surrogates, it was pointed out that”close” relatives and friends of intending couple should not serve assurrogates as it may lead to conflict of interest in the future. Thereare certain concerns when it comes to these eligibility criteria.
Some of theclauses were objected to by various viewers. • Insurancecoverage for the surrogate mother.• Acourt order concerning the parentage and custody of the child to be bornthrough surrogacy;• Theydo not have any surviving child (whether biological, adopted or surrogate),except if the surviving child is mentally or physically challenged or suffersfrom a fatal illness;• Amedical certificate stating that either or both partners are infertile;• Theyare in the age group of 23-50 years (female partner) and 26-55 years (malepartner);• Theyare Indian citizens who have been married for at least five years; Inorder to be eligible, the couple intending to commission a surrogacyarrangement must be a close relative of the surrogate mother. In addition, the couple has to prove thatthey fulfil all of the following conditions:8 • Shepossesses a medical certificate of her fitness for surrogacy.• Shehas not been a surrogate mother before;• Sheis 25 to 35 years old;• Shewas or is married and has a child of her own; Clause4 (iii) (b) (I), (II), (III) & (IV) of the Bill deals with the conditionsto be fulfilled to be surrogate.7 The surrogate mother, apart fromproving that she is a close relative of the couple intending the surrogacy,also has to prove all the following conditions: TheBill has defined the eligibility criteria for the surrogate mother and theintending parents as well.
ELIGIBILITYOF THE SURROGATE AND THE INTENDING PARENTS TheStanding Committee on Health and Family Welfare, in its 102ndreport, recommends that the definition of surrogacy as provided in the ARTBill, 2014 be included in clause 2(zb) of the Surrogacy Bill, with specificprovision for Gestational Surrogacy. Thedefinition of surrogacy provided under the Bill does not specify whethergestational or traditional surrogacy is permissible, though the Department ofHealth Research in its written submissions has submitted that only gestationalsurrogacy is allowed under the Bill. The definition of surrogacy should beprecise, explicit and descriptive with no scope of arbitrary interpretation. “‘Surrogacy’means a practice whereby one woman bears and gives birth to a child for anintending couple with the intention of handing over such child to the intendingcouple after the birth” Thedefinition of surrogacy under Clause 2(zb) of the Bill has been stated as6: Theclichéd expression of ‘wombs for rent’ was coined when it became possible for fertilizedeggs to be implanted and, thus, grow to a full term baby in any womb, sometimeswith the help of cross-border surrogacy mothers.5 2) Gestationalsurrogacy: The procedure involves an egg being removed from the intended motheror an anonymous donor and fertilized with the sperm of the intended father oranonymous donor. The fertilized egg, or embryo, is then transferred to asurrogate who carries the baby to term. The child is thereby geneticallyrelated to the woman who donated the egg and the intended father or spermdonor, but not the surrogate. 1) Traditionalsurrogacy: In this type of surrogacy, a surrogate mother is artificiallyinseminated, either by the intended father or an anonymous donor, and carriesthe baby to term.
The child is thereby genetically related to both thesurrogate mother, who provides the egg, and the intended father or anonymousdonor. Thereare two types of surrogacy4- TYPEOF SURROGACY ADDRESSED BY THE BILL TheBill lacks clarity on the following topics. Whilethe Bill is comprehensive in nature and aims to eliminate the grey areasregarding surrogacy in the country, the Bill fails to even address the mostcommon of the concerns, the country has had to face due to the lack oflegislation on this topic. This is one of the stronger reasons why theParliament has not passed the Bill into enactment as of one year from the timeof drafting. LOOPHOLESAND SUGGESTIONS The Bill wasintroduced by the Ministry of Health and Family Welfare in the Lok Sabha on the21 November, 2016. Due to the shortcomings in the Bill, it has been put on the pending bills list andawaits enactment.
CURRENTSTATUS OF THE BILL TheSurrogacy (Regulation) Bill, 2016 (hereafter addressed as the Bill) was passedby the union cabinet in August 2016. Surrogacy is the most viable answer toinfertility as compared to other means of ART. It was introduced in the LokSabha on 21st November, 2016 and referred to the Department-relatedParliamentary Standing Committee on Health and Family Welfare by the Chairman,Rajya Sabha in consultation with the Speaker, Lok Sabha on the 12th January,2017 for examination and report.3 In the absence of a law, India has tried to strengthen the process byissuing guidelines and directives, which are termed by experts as knee jerkreactions. “It is not very different from a contract between tenant anda landlord. There is no uniform procedure involved. And just like rent of flatvaries depending on location and amenities, there is no fixed amount paid tosurrogate mothers,” said Enakshi Ganguly of HAQ Centre for Child Rights, anon-governmental organization which works towards the recognition, promotionand protection of rights of all children. There is no legislation governing surrogacy agreements.
TheAssisted Reproductive Technology (ART) Bill 2010 is yet to be passed.Currently, surrogacy agreements are done under Indian contract law. CURRENTLEGISLATION Subsequently,efforts have been taken to legislate on this topic, but even as of today, weare in a state of legal oblivion when it comes to this particular topic. Thesurrogacy debate started in India in 2008, when two-week-old Baby Manji Yamadawas left stateless after the commissioning parents in Japan divorced during thepregnancy and the commissioning mother refused to accept the baby.1 While the court granted custody tothe baby’s grandmother after a long legal battle, the case led the Gujarat HCto state that there is “extreme urgency to push through legislation” whichaddresses such issues.2 Theroots of Indian surrogacy have its traces in the history and provided evidencesof being a century old procedure.
The procedure became a successful practice inIndia with the birth of world’s second and India’s first IVF baby Kanupriyaalias Durga on Oct. 3, 1978 in Kolkata. Since then the field of AssistedReproductive Technology or ART in short has shown fastest developments. Surrogacyis defined as “the practice by which a woman (called a surrogate) becomespregnant and gives birth to a baby in order to give it to someone who cannothave children.
” Thedawning of a new era in facilitating human reproduction began a scant fifteenyears ago with the astonishing news of Baby Louise’s birth in Great Britainthrough the process known as in vitro fertilization. In other situations,medical science could provide the means for a genetic relationship between thechild and one of the rearing parents. And with this thought, the concept ofsurrogacy was born. INTRODUCTION Woman,womb, mother…in our minds, the creation, and sustenance and nurturing of lifehinges on the blending of these words into synonymity.
” – Gita Aravamudan in her book ‘BabyMakers: The Story of Indian Surrogacy’.