ABSTRACT
Every women wishes to be a mother. It is the dream of every couple to have a child of their own. Infertility is the state in which the couple is having no children for many years even after they tried a lot. Surrogacy means the practice of giving birth to a child and delivering the child to the intended parents. There are two types of surrogacy –traditional surrogacy and gestational surrogacy. Traditional surrogacy means the sperm for the intended father is artificially inseminated in to the surrogate mother and then she carries the child in her womb. Afterdelivery ,the child is handedover to the intended persons. Gestational surrogacy means the egg from the intended mother and sperm from the intended father is taken out and fertilized outside the body. The fertilized embryo or the fertilized egg is then implanted in to the uterus of the intended mother. In such surrogacy, the surrogate mother only carries the child in her womb. The child do not get any hereditary characters of the surrogate mother. Surrogacy was a practice started in order to help the infertile couples. But now surrogacy is commercialized and the women are practicing it as a means to get money. In 2009,the Law Commission recommended prohibiting commercial surrogacy, allowing altruistic surrogacy and enacting a law for the regulation of surrogacy. The Surrogacy (Regulation)Bill,2019 was passed in order to control the illegal practicing of surrogacy. The undertaking or advertising of commercial surrogacy, the exploitation of surrogate mother or surrogate child, the abandoning of surrogate child , disowning a surrogate child, business of surrogacy etc. are the offences under the Surrogacy (Regulation ) Bill , 2019.
FULL PAPER
SCENARIO OF SURROGACY IN INDIA
1. INTRODUCTION
‘Of all the rights of women, the greatest is to be a mother’_ Lin Yutang
The practice of surrogacy was started as a boon for many infertile couples but now it is commercialized by many people. It is used by many women as a means for making money. TheSurrogacy (Regulation) Bill,2019 was introduced inorder to prevent the commercialization of surrogacy.
- SURROGACY
Surrogacy means the practice of giving birth to a child and handovering that child to the intended parents. At a basic level ,surrogacy is an agreement or contract between two parties, one of whom will bear and give birth a child for the other.[1]There are two types of surrogacy –traditional surrogacy and gestational surrogacy. Traditional surrogacy means the sperm for the intended father is artificially inseminated in to the surrogate mother and then she carries the child in her womb. After delivery ,the child is handover to the intended persons. Gestational surrogacy means the egg from the intended mother and sperm from the intended father is taken out and fertilized outside the body. The fertilized embryo or the fertilized egg is then implanted in to the uterus of the intended mother. In such surrogacy, the surrogate mother only carries the child in her womb. The child do not get any hereditary characters of the surrogate mother. The gestational mother has a particularly strong right of privacy and autonomy, founded up on several factors: her experience of artificial insemination, the changes in her body ,her emotional commitments, her nurturing of the fetus for nine months ,and the labour and pain of giving birth[2].Surrogacy is mainly practiced when the woman is not able to conceive or carry the child in her womb due to many health related problems, diagnosed with infertility or if gay men want to have children genetically descended from them. In such cases an another woman may be asked to carry the baby of the intended couple in her womb. It is the responsibility of the intended pares to take care of he health of the surrogate mother during the time of pregnancy. The surrogate mother should be aware of the terms, issues, and procedures of surrogacy. She should not be cheated. In most of the surrogate contracts, the surrogate mother do not have any parental rights over the child. The intended parents has the sole custody of the child. The surrogate mother has the right to privacy. Proponents of surrogacy arrangements asserts that a married couple’s right to ‘procreative autonomy’ includes the right to contract with counselling collaborators for the purpose of bearing a child[3].
In K. Kalaiselvi v. Chennai Port Trust[4], the Court held surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child, she will not raise but hand over to a contracted party.
In Baby Manji Yamada v. Union Of India and Anr.[5], the Court had highlighted certain aspects relating to surrogacy. In some cases, surrogacy is the only available option for parents who wish to have a child. In this case ,the Law Commission highlighted the lack of regulation for surrogacy in India.
- REASONS FOR SUGGESTING SURROGACY
It’s the dream of every woman to become a mother. After her marriage , she eagerly waits to have a baby of her own . To become a mother is a boon. Mothers are considered equal to God. A married woman’s life will be meaning full only if she has a child. Without children, there is no meaning to the rest of the life.When a woman comes to know that she is pregnant, it is considered as a blessing. A woman will be respected only if she could conceive and give birth to a child.
But many women do not get the grace to become a mother. After many years of marriage, many couples are there with no children. Infertility means not able to conceive even after undergoing copulation, for many years. After frequent try also , the women is not able to conceive. Surrogacy treatment is suggested for the following women who is who is not able to conceive because of the following reasons:
- For women not having a uterus. It may be absent from birth or may be removed through operation.
- The women who suffered multiple miscarriages
- The women who failed repeated IVF treatment for many reasons.
- The women having hereditary diseases which may transmit to the child
- The women having HIV
Surrogacy is also preferred by single men and gay couples who are not having children. The infertility ((the state of having no children ) could destroy the entire happiness of married life. It is a common fact that even if the problem is with the husband, the wife has to undergo blame by her husband and relatives. Infertility may pull the happy life of a couple in to darkness.
Now there are many medical treatments to cure the defect of infertility. But in certain circumstances , the medical field also go helplessness. The wish of having a child of their own will remain only as a dream for many couples. Many couples may find it difficult to adjust with the adopted children. So they might refuse to adopt a child. Couples need to be clear in their decision ,jointly, before rushing for fertility treatment.[6]
- COMMERCIALIZATION OF SURROGACY
Though surrogacy is widely practiced in India, nowsurrogacy is commercialized by many people. It is harmful for the society. The women who is capable to carry also misusing this opportunity. For maintaining their busy life, they may suggest surrogatemother. Many women are trafficked and they are forced to conceive as a surrogate mother. Surrogacy may spoil the strong relationship between a mother and a child. Sometimes the poor women are misused as ‘mothermachines’ to bear babies by their family for getting money, In 2009,the Law Commission recommended prohibiting commercial surrogacy, allowing altruistic surrogacy and enacting a law for the regulation of surrogacy.
- THE SURROGACY ( REGULATION) BILL, 2019
Dr. Harsh Vardhan, the Minister of Health and Family welfare , introduced the surrogacy(Regulation) Bill , 2019 in the LokSabha on July 15 , 2019. The Bill defines surrogacy means a practice that a woman conceive a child for another couple and handover the child to the intending couple after the delivery. Commercial surrogacy is prohibited by the Bill. Commercial surrogacy means conceiving the child for another couple for money . The intending couple will give monetary compensation to that woman who is ready to conceive the child for them. The surrogate mother can ask money as she wish . The Bill do not prohibit altruistic surrogacy. Altruistic surrogacy means no money is given to the surrogate mother other than the insurance coverage and medical expenses during the time of pregnancy . The intending couple should provide the surrogate mother with food , medicines , hospital charges, and other necessaries. The practice of surrogacy is approved by the Bill if it is for intending couples who suffer from infertility which is proved by medical tests, if it is not for monetaryconsideration , not for sale, prostitution or any other unlawful or illegal purposes. The intending couple should have undergone medical test proving that they are infertile. The medical tests and reports should be legal and accurate. The intending couple should have a ‘ certificate of essentiality’ issued by the concerned doctor or appropriate authority.
Eligibility criteria for a surrogate mother is that she should be a close relative of the intendingcouple .She should be a married woman and she should possess a child of her own . Her age should be between 25 -35 years old . She should be mentally, physically and medically fit for surrogacy .She should not provide her own gametes for surrogacy. The surrogacy clinics cannot undertake the procedures related to surrogacy unless they are registered by the appropriate authority.
Granting , suspending or cancelling registration of surrogacy clinics , enforcing standards for surrogacy clinics , recommending modifications to the rules and regulations are the main functions of the appropriate authority appointed by the central and the state governments within 90 days of the bill becoming an Act. The national surrogacy board is created by the central government and the state surrogacy boards where created by the state governments.
The surrogate mother has an option to withdraw from surrogacy only before the embryo is implanted in her womb. The intended parents should consider the child born from the practice of surrogacy as their own biological child. The surrogate child could not be aborted without the consent of the surrogate mother. It also needs the authorization of the appropriate authority. The authorization should comply with the necessaries of the medical termination of pregnancy act 1971.
The undertaking or advertising of commercial surrogacy, the exploitation of surrogate mother or surrogate child, the abandoning of surrogate child , disowning a surrogate child, business of surrogacy etc. are the offences under the Surrogacy (Regulation ) Bill , 2019. The punishment for such offences are imprisonment up to 10 years and a fine upto 10 lakh rupees. A wide range of offences and the penalties for other contraventions of the provisions of the Bill is also specified in the Bill. In most countries, the discussion of surrogacy assumes that it is a possible solution to an infertility problem, one to which the health system should respond[7].
- CONCLUSION
The ability of a woman to give birth to a child is considered as a gift of God .It is the dream of every women to become a mother. Every couple desires a child. Infertility destroys the whole happiness of the couple. Surrogacy was considered as a boon for many infertile couples. The practice of surrogacy was started with a mind to help the infertile couple. But later it has been commercialized by many people. This has also become a reason for the trafficking of women. The surrogacy has now become renting of uterus for money. The women started renting of their uterus for money. They receive monetary consideration for conceiving the child. So the Surrogacy (Regulation) Bill,2019 was introduced in the Lok Sabha to prevent the illegal activities surrounding the practice of surrogacy.
- BIBLIOGRAPHY
- Pinki Virani-‘Poliics of the womb’-Penguin Random House India Pvt.Ltd.
- SharmilaRudrappa-‘Discounted Life-The Price Of Global Surrogacy In India’-Orient Blackswan Private Limited-2016
- https://www.prsindia.org/billtrack
- https://m.businesstoday.in
- https://surrogate.com
- Sandeep Mane –‘Surrogacy -dreams come true’
- Asgeirsson- ‘Reproductive Technology and Surrogacy’
- Larry Gostin-Surrogate Motherhood politics and privacy-Indian University Press
[1] SHARMILA RUDRAPPA-‘Discounted Life-The Price Of Global Surrogacy In India’-2015-P.2
[2] LARRY GOSTIN-‘Surrogate Motherhood politics and privacy’-1990-P.5
[3] Ibid at P.3
[4] W.P.No.8188 of 2012
[5] (2008)13 SCC 518
[6] PINKI VIRANI-‘Politics of the womb’-P.83
[7]ASGEIRSSON-Reproductive Technology and Surrogacy –P.29
