INTRODUCTION
The parents construct the Child biologically,
While the Child constructs the Parents socially.[1]
The roots of surrogacy can be traced long back in Indian history. When the parents are unable to construct a child through the conventional biological means, the problem however arises. Infertility is seen as a major problem as kinship and family ties are dependent on progeny.
The world’s second and India’s first in vitro fertilization (IVF)[2] baby Kanupriya alias Durga was born in Kolkata on October 3, 1978, about 2 months after the world’s first IVF boy, Louise Joy Brown born in Great Britain on July 25, 1978. Since then, the field of assisted reproductive technology (ART)[3] has developed rapidly. However legally, the laws related to surrogacy are still in the nascent stage.
At present, the agreement between the parties based on the ART Guidelines is the guiding force. The codified law is yet to be adopted and implemented. The growth in the ART methods is recognition of the fact that infertility as a medical condition is a huge impediment in the overall wellbeing of couples and cannot be overlooked especially in a patriarchal society like India. A woman is respected as a wife only if she is a mother of a child so that her husband’s masculinity and sexual potency is proved and the lineage continues.
With the recent growth in the intended parents opting for surrogacy here, India has become the much sought-after surrogacy destination. The acceptance of same-sex marriages and the recognition of the basic human right to have family and children have given rise to surrogacy manifold. However, at the same time, nations across the globe are condemning commercial surrogacy as it results in commercialization of human reproductive system and co-modification of children. For its various socioethical reasons, surrogacy has become a topic of deep interest among the governments of different nations, medicolegal luminaries as well as the public at large.
Surrogacy is defined as the procedure whereby a couple contracts with a woman (known as the surrogate) to conceive a child for them, carry it to term, and then relinquish to the couple all her parental rights.[4]
The word “surrogate” has its origin from the Latin word “surrogatus,”[5] meaning a substitute, that is, a person appointed to act in the place of another. Hence, a surrogate mother is a woman who carries a child on behalf of another woman, either from her own ovum or from the implantation in her womb of a fertilized egg from another woman.
Every human being has an innate desire to have a natural offspring. The reasons are many, to love and to be loved, for performing the religious rituals at the funeral pyre, for carrying the tradition of a family, to preserve a particular community, and so on.
Begetting and giving birth to a child is essential not only for fulfilling the personal aspirations of the individuals but also for continuation of the society. This desire is accomplished by the act of procreation which is a natural process by which the married couple can have their own offspring. Traditional reproduction is an unambiguous three-dimensional phenomenon involving natural mother, natural father, and natural child sharing among them the entire natural biological process, without intervention from any other external agencies except for minimal medical expertise.[6]
A child is seen to be a natural product of the procreative act of its parents.[7]
For most couples, the procreation of a child is one of the simplest tasks. Melissa Williams, the renowned Political Scientist, commented that:
“Reproduction of child, after all is the oldest production known to humankind, a process that is programmed into the biological fiber of our beings and defines our very survival.”[8]
However, unfortunately, a large number of people due to various reasons are unable to fulfill this very biological process fruitfully and beget a child.
Procreation is essential for survival of all forms of life including man because no living being is immortal. Like animals, human beings also require mutual co-operation of two individuals with different sex structures for the act of procreation. Urge in living being in this regard is called sexual urge. To channelize this, the concept of marriage developed in the society of human being.[9]
With the emergence and development of the concept of human rights, this basic need of a human being to have children has been recognized as fundamental human right and incorporated as a right to procreate. The Preamble to the Constitution of India comprises paramount objectives of the Constitution as to secure social, economic, and political justice through protection of basic human rights and reproductive rights are also an integral part of the basic human rights.[10] Further Article 21 also grants a fundamental right to privacy that could be invoked to protect the right of individual to reproductive health-care information[11] and personal liberty, as women’s right to make reproductive choices.[12]
Procreation means a biological process by which women give birth to a child. Women are raised to see themselves as child bears, men to see themselves as generators of procreation. A child is raised by biological parents to achieve the success and identity that comes from genetic heritage.[13]
Thus, reproduction transcends the boundaries of individual lives to signal the survival and continuation of the family and the species. Fertility is revered in almost all cultures and the ability to reproduce is perceived as a milestone in adult development. However, unfortunately, a large number of people due to various reasons are unable to fulfill this biological process fruitfully and beget a child. The major reason for childlessness is infertility which may be either medical or social.
Aims and objectives of the research
The aims and objectives of the research work proposed are as under:
To make a critical legal analysis of the Surrogacy Law in India, this is the thread underlying at the crux of the research work and will be adhered to throughout the article.
The highlight of the research study will be the need and importance of artificial human reproductive technologies in general and surrogacy arrangements in particular since the ART guidelines are the guiding light and force of the surrogacy arrangements in our country presently.
MEDICAL AND SOCIAL INFERTILITY
Medical infertility
It refers to the inability or failure to have a child even after 1 year or 2 year of regular sexual intercourse without any contraceptives due to biological reasons. There are various reasons for this kind of infertility such as diabetes mellitus and adrenal diseaseetc.[14]
Social infertility
It means the inability of individuals to have a child due to various social factors in their life, for instance, lesbians, gays, widow persons, single individuals, and divorced individuals, such people may be fertile, but because of this situation and way of life and social circumstances, they are unable to have a child.
Infertility is like a multipronged assault on their partnership, an attack on their sexual relationship, their plans, their dreams, their time, and their finances. Infertility is always a couple problem, both men and women suffer greatly from it, but the emotional impact of this crisis is very severe on women wearing away at their sense of feminism. Majority of women irrespective of their social and professional status have a natural desire for motherhood and thus inability to bear a child threatens their very object in life.[15]
Infertility in men may be a blow to their ego and they may consider it as an impaired masculinity. However in this situation also, women are held responsible by the family members and have to suffer mental torture and harassment.[16] Infertility is much more than just a medical problem. It is a stigma. Since the interpretation of the term infertility is socially constructed, the meaning of infertility has changed with the passage of time and changes in society.[17]
When a society changes rapidly, its ethical norms are challenged. They are challenged by the biases of new knowledge and by the conflicts created as new practices threaten these norms.
The discipline of public health added social responsibility and justice to the ethics of medical practice and research. Here, we explore the conflicts emerging out of the practice of ARTs and the extent to which the proposed legislation[18] contains them by reasserting ethical principles.
ASSISTED REPRODUCTIVE TECHNIQUE AND THE MEDICAL MARKET
A significant percentage of babies in developed countries in the West are born through IVF. Some of these involve surrogacy, and reproductive tourism takes place within the US and in some parts of Europe. In these first-world countries, the debate is focused on the ethics of surrogacy rather than on the economic advantage of any particular region.
On the other hand, such an economic advantage is seen in India, which is perceived as a hub of quality ART services that can be had for one-fourth of the price in the West. This explains the rush of foreign couples seeking surrogacy (most commissioning parents in Indian clinics are from outside the country) and ART and the proliferating medical tourism market in ART.
There are two concerns about this trend in India.[19] The first is the misuse of technology causing serious problems such as a declining sex ratio, rising cesarean sections, and overdiagnosis leading to unnecessary medical procedures. The second is the commodification of body parts such as in the clandestine trade in kidneys, placentas, and aborted fetuses. When these trends are combined as in reproductive technologies, the results are disturbing. There are reports of young women being used to harvest oocytes or ova without their informed consent on the risks and consequences of this procedure; of clinics promoting IVF without the necessary technical resources and human power; and of specialists organizing surrogacy contracts for foreign clients without ensuring the security and rights of the surrogate mother or baby.[20]
Most of these problems are a consequence of the unregulated ART industry – with varying prices, standards, and procedures – that gives primacy to profits rather than the epidemiological needs of the majority in India. The state ignores the need to prevent secondary infertility that is due to poor obstetric services and reproductive tract infections. It does not address the poor nutritional status of women which affects their ability to conceive and carry a pregnancy to term. And finally, it does not provide basic services to treat infertility. Instead, the private sector is given the freedom to set up more ART clinics. This strategy is in line with its policy to encourage medical tourism to earn foreign exchange rather than protect the health of the majority. The ART industry is estimated to be worth $445 million.[21]
After the techniques of ova harvesting and IVF and embryo transfer became popular, it was no longer necessary to use the surrogate’s ova. Technology thus explicitly distinguished between the social and gestational value of mothers and genetic material that was now available through donors. It weakened the ideology of motherhood and the most commonly held ethical and legal position that a mother is the one who gives birth and genetic parents alone provide identity.
REPRODUCTIVE TOURISM WITHIN INTERNATIONAL FRAMEWORK
In keeping with the principles similar to those for trade in goods, general agreement on trade in services defines trade in services by the way in which they are supplied: by personnel providing services abroad, by consumption in other countries, through foreign direct investments, and across borders.[22] Mode 1 (cross-border trade) refers to provision of health services by the providers in one country to a foreign recipient mainly in the form of telemedicine. Mode 2 (consumption of health services abroad) refers to a situation where patients from one country travel to another in order to avail themselves of medical services. Mode 3 (commercial presence) refers to the movement of capital from one country to another through the commercial establishment of the foreign commercial provider which often takes place in the form of direct investment or a joint venture between domestic and foreign partners. Mode 4 (movement of natural person) refers to the movement of health professionals and supporting personnel working in the health-care sector, to countries overseas to provide health services.
Export of health-care services under Mode 2, commonly referred to as Medical tourism, covers export of the health-care services like specialized high-quality treatment or diagnostic to the affluent and privileged patients who travel to the country of the service provider to use these services, which may either not be available in their home countries or, if available, may not be of a particular level of standard. Reproductive tourism is seen as a subcategory of medical tourism since fertility patients travel, often across national borders, in order to receive a wide variety of ARTs and services including IVF, gamete (sperms and eggs) donation, intracytoplasmic sperm injection, sex selection, maternal surrogacy, and embryonic diagnosis.[23] Although not strictly tourism, the fertility centers around the world promote their services as “IVF holidays” or “a holiday with a purpose,” offering clients a relaxing and calming environment while undergoing fertility treatment.[24] Apart from the opportunity to combine treatment with holiday experience, there are a number of reasons that resulted in increased reproductive tourism which include unavailability of a specific technology or service, lack of sufficiently skilled personnel and/or donors in their home country, lower costs, better standard of care and expedited services in the destination country, and exclusion from services in their home country on the basis of age, marital status, or sexual orientation.[25]
Despite the commonality of vacation-like experience, reproductive tourism differs from medical tourism in as much as it relies on third parties to contribute their gametes or gestate or give birth for patients to make use of ARTs.[26] Globalization combined with international trade agreements, advances in ARTs, electronic communication, and low-cost travel have made reproductive tourism a global phenomenon, and India a global destination for surrogate mothers.
As mentioned above, there is no mandatory regulatory regime governing commercial surrogacy in India to date.[27] In 2005, the Indian Council for Medical Research (ICMR) drafted the National Guidelines for Accreditation, Supervision, and Regulation of ART Clinics (hereinafter ICMR guidelines) to regulate fertility services, which are voluntary in nature and legally nonbinding. This absence or scarcity of law regulating reproductive technologies, especially “commercial surrogacy,” has made India lucrative for couples seeking commercial surrogacy, especially from countries that prohibit it on religious or ethical grounds.[28]
PROVISIONS OF THE SURROGACY (REGULATION) BILL 2020[29]
Chapter I (section 2) provides the various definitions used in the Bill such as “Altruistic surrogacy (no charge or fees or expenses),” “commercial surrogacy (surrogacy by way of giving payment, reward, benefit, fees),” “infertility,” and “close relative.” It also defines “intending woman” as an Indian woman who is a widow or divorcee between the age of 35 and 45 years and who intends to avail the surrogacy.
Chapter II (section 3) deals with “Parentage and abortion of surrogate child” in which a child born by surrogacy procedure will be deemed to be the biological child of the intending couple or intending woman. For the abortion of the surrogate child, it requires the written consent of the surrogate mother and the authorization of the appropriate authority. This authorization must be according to the Medical Termination of Pregnancy Act, 1971.[30] Further, before the embryo is implanted in her womb, the surrogate mother will have an option to withdraw from surrogacy.
Chapter III (section 4–10) is divided in four parts
First part deals with the five purposes for which surrogacy is permitted such as (i) when an intending couple or intending woman of India has a medical indication for gestational surrogacy (means a practice whereby a surrogate mother carries a child for the intending couple through implantation of an embryo in her womb and the child is not genetically related to the surrogate mother), (ii) altruistic, (iii) for any condition or disease specified through regulations, and (iv) that surrogacy is not for commercial purposes, producing children for sale, prostitution, or other forms of exploitation.
The second part deals with eligibility criteria for intending couples which include “certificate of essentiality” and a “certificate of eligibility” issued by the appropriate authority.
A certificate of essentiality shall be issued when the following conditions are fulfilled:
- A certificate of a medical indication in favor of either or both members of the intending couple or intending woman for gestational surrogacy from a District Medical Board
- An order of parentage and custody of the surrogate child passed by a Magistrate’s court
- Insurance coverage for a period of 36 months from 16 months provided in the earlier version which covers postpartum delivery complications for the surrogate.
The certificate of eligibility for the intending couple shall be issued upon fulfillment of the following conditions:
- The couple being Indian citizens
- Between the ages of 23 and 50 years old (wife) and 26 and 55 years old (husband)
- They do not have any child biologically, adopted, or through surrogacy and it would not include a child who is mentally or physically challenged or suffers from a life-threatening disorder or fatal illness
- Other conditions that may be specified by regulations.
The third part deals with the eligibility criteria for surrogate mother and to obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
- A married and willing woman (In 2019 bill, only a close relative of a couple can be a surrogate mother which restricts the availability of surrogate mothers) between the age of 25 and 35 years having a child of her own
- Surrogate only once in her lifetime
- Possess a certificate of medical and psychological fitness for surrogacy
- The surrogate mother cannot provide her own gametes for surrogacy.
The fourth part deals with the “Rights of surrogate child” in which the child will be entitled to all the rights and privileges available to a natural child under any law for time being in force.
Chapter IV (section 11–14) deals with “Registration of surrogacy clinics” by the appropriate authority to undertake surrogacy or its related procedures within a period of 60 days from the date of appointment of the appropriate authority; “Registration of certificates” which are valid only for 3 years and will be renewed; “Cancellation or suspension of registration” by the appropriate authority if there is any infringement of the provisions of the Act; and “Appeals” against orders such as rejection or cancellation of certificates, registrations, and applications passed by the appropriate authority to the state and central governments.
Chapter V (section 15–32) deals with National and State Surrogacy Board which consists of various members from parliament, state legislative assemblies, executives, and ten experts’ members appointed by the central and state governments. The function of boards is to advise the central government on policy formulation relating to surrogacy, monitor and review the implementation of the Act or rules and regulations, laying down the code of conduct of surrogacy clinics, and supervise the functioning of State Surrogacy Board and performance of various bodies constituted under the Act.
Chapter VI (section 33–35) deals with the appropriate authority which consists of Joint Secretary and Joint Director of the Health and Family Welfare Department, an eminent woman representing women’s organization, the officer of law department of the state or the union territory, and eminent registered medical practitioner. Within the 90 days of the Bill becoming a statute, the central and state governments shall appoint one or more appropriate authorities. The functions of the competent authority include:
- (i) Issuing, suspending, or canceling the registration of surrogacy clinics
- (ii) Implementing standards for surrogacy clinics
- (iii) Investigating and taking action against violation of the provisions of the Bill
- (iv) Recommending modifications to the rules and regulations in accordance with changes in technology or social conditions.
Further, Appropriate authority shall exercise the powers such as:
- (a) Search any suspected place, document, and summon to any person who is in possession of any information relating to the violation of the provisions of this Act
- (b) Maintain the details of registration, cancellation, and renewal of surrogacy clinics; grant of certificates to the intending couple, surrogate mothers, and license of the surrogacy clinics in such format as may be prescribed and submit the same to the National Surrogacy Board.
Chapter VII (section 36–43) penalizes any person up to 10 years imprisonment and fine up to 10 lakh rupees for offenses such as advertising or undertaking commercial surrogacy in any manner, disowning or exploiting the surrogate child or surrogate mother, selling or importing human embryo or gametes for surrogacy purpose, and conducting sex selection in any form for surrogacy.
Chapter VIII (section 45–52) deals with the miscellaneous provisions which include maintenance of records, power to search and seize records, power to make rules and regulations by the central government and by the board, protection of government or any appropriate authority from any prosecutions for the actions taken by them in good faith, and power of the central government to remove the difficulties for the provisions which are inconsistent with provisions of this Bill.
CONCLUSION
Law is to act both as ardent defender of human liberty and instrument of a distributor of positive entitlements. Furthermore, the law must keep pace with the emerging technologies so that their constructive benefits could be availed by those in need.
The Surrogacy Bill 2020 only allows altruistic surrogacy by putting a blanket ban on commercial surrogacy. It forbids foreigners, nonresident Indians, and people of Indian origins from commissioning surrogacy in the country. It deprives the surrogate mother of availing the benefits of commercial surrogacy. As commercial surrogacy seems to be an attractive alternative for all of the parties involved. First, the poor surrogate mother gets financial stability, and on other hand, the infertile couple gets their long-desired biologically related child. And apart from that, it includes foreign currency investment. Thus, it is necessary to find a midway that facilitates commercial surrogacy but in a regulatory manner.
The government giving a nod to altruistic surrogacy could prove to be counterproductive. It will offer an opportunity for corruption, black marketing, and also the surrogacy procedures being carried out clandestinely. By banning commercial surrogacy, the Bill assumes that altruistic surrogates are not exploited, ignoring the fact that unpaid surrogacy is also exploitative. The Bill also ignores the potential loss of earnings of the surrogate because she will have to effectively put her life on hold for 2 years to complete the process of surrogacy. It is expected that a woman must act as a surrogate and go through all the physical and emotional tolls of this arrangement free of cost and only out of “compassion” because many women would not be interested in carrying someone’s child without being paid for it. The irony is that through this “altruistic model,” it promotes forced labor. Thus, “compensatory surrogacy” would be a more appropriate word to make good for the losses suffered by the surrogate mother in terms of health, wages, sufferings, and death, etc., and hence, the word “altruistic surrogacy” should be replaced with the word “compensatory surrogacy.”
The Surrogacy Bill 2020 proposes that the intending couple need a certificate of eligibility in order to be able to avail the option of surrogacy. However, it does not mention a time limit for the certificates being issued. First, the definition of infertility provided in the Bill is not in consonance with the definition provided by the World Health Organization. Second, the requirement of obtaining the infertility certificate is not at all justified and must be deleted.
The Surrogacy Bill 2020 requires the approval of the competent authority and the consent of the surrogate mother for an abortion. However, it does not give any role for the intending couple in the decision to abort. In the Bill, there is no provision for intending couples in the decision-making process as sometimes surrogate mothers may take undue advantage of the vulnerability of the intending couple.
The ART Bill 2020 is the genus and the Surrogacy Bill 2020 is the species. Bringing the Surrogacy Bill 2020 before the ART Bill 2020 will be irrelevant. The Surrogacy Regulation Bill needs to be positioned and understood in close conjunction with the ART Bill because the ART Bill deals with the mode, the procedures, and the technology of reproductive medicine in surrogacy, while the Surrogacy Bill deals with the implications and the ethical issues arising from such arrangements. Therefore, the regulation of ART is a necessary precondition for the effective implementation of the Surrogacy Bill. The Surrogacy Bill is based on social, legal, ethical, and moral aspects, whereas the ART Regulation Bill addresses highly technical and medical aspects. Most of the countries have separate acts to regulate ART and surrogacy. Hence, the Surrogacy Bill should come into force only after the enactment of the ART Bill.
The Surrogacy (Regulation) Bill 2020 is completely divorced from the day-today reality of the practice of surrogacy in India and will fall flat on its face owing to its thorough disregard and acknowledgment for the carrying out of commercial surrogacy in India.
Financial support and sponsorship
Nil.
Conflicts of interest
There are no conflicts of interest.
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