This article is written by Srishti Sharma, a Third year B.A. LLB (Hons.) Student of Ideal Institute of Management and Technology (Affiliated to Guru Gobind Singh Indraprastha University), Delhi.
Sometimes when making something so precious, beautiful and unique, it takes an extra helping heart ~ Anonymous.
Infertility is generally known as the stigma in the country like India. It is hypothesized the agony and trauma in the life of infertile couple. Though infertility does not take the life of the person but will devastatingly influence on the life of the individual who was not able to fulfil the biological parenthood.
If we go through the ideology of the people living in Indian society we will notice that Indian society was based on the family structure where the male lineal descendant was always obliged to increase their family by having a child or Vansh who will later on will represent the family. For a woman it was a dream to nurture the child which adorns her. But to certain extent it would not be possible for her because of many reasons. Then comes the option of Surrogacy. Though to many it may seem like a radical idea.
Surrogacy has came from the Latin word  “Surrogatus” means a substitute i.e a person appointed to act in a place of another. In literal meaning, Surrogacy is the legal arrangement between the woman (surrogate) and intended parents or in simpler manner Surrogacy means to lend the worm of the woman to bear the child of some other person.
When we look back at the evolution of this term. We thought it was a new term. Though it was correct, but certain evidence of this was tracked at Bible period also. There was one couple at that time who was not able to conceive a baby due to certain medical problem. So the couple went to their maid and requested her to bear their baby in her worm and they also pay certain amount to her in return. At that time this type of surrogacy was natural and thus classified as Traditional Surrogacy. So it was a kind of shameful activity for the couple who were unable to bear a baby. While traditional surrogacy has been practiced for ages, then came another surrogacy that is Gestational Surrogacy. It came in year 1982, when first baby born through In vitro fertilization (IVF). There were many more instances from which we can trace the background. The landmark judgement on surrogacy was “The Baby M Case” where a surrogate mother after giving birth to the child does not gave baby to the intended parents. This case goes on for many years and finally the custody of a child was granted to intended parents.
If we talk about the origin of Surrogacy in India. It roots back in year 1978 where world’s second and India’s first baby Kanupriya aka Durga was born by the process of IVF.
IVF is the most effective form of Assisted Reproductive Technology (ART). ART is used to treat infertility. It includes fertility treatments of both woman and male.
TYPES OF SURROGACY
There are only four types of surrogacy. Out of which initially only three are allowed in India. One among them was banned by the government of India.
- Traditional Surrogacy
Where the eggs of the surrogate was injected with the sperm of the intended father or anonymous donor. In this type the child is related to the surrogate mother and will get certain features of mother as well.
- Gestational Surrogacy
The second type is gestational where the surrogate mother was no where related to the baby. The eggs of intended mother were made fertile with sperms of the intended father scientifically and then injected under the worm of the surrogate mother.
- Commercial Surrogacy
This kind of surrogacy was no where practised in India. It involves money where the intended parents give money to the surrogate for bearing their child.
- Altruistic Surrogacy
Under this surrogacy no financial rewards were involved where surrogate will not be provided with any relinquishments to bear the child except those medical expenses.
ART (amendment) Regulation Bill/ Surrogacy Bill
Once been a popular country for the surrogacy to the foreign intended parents has no longer is an option from 2015, at that time the Indian government passed new regulations on the surrogacy process.
Today, Indian surrogacy law has made surrogacy illegal for the foreign intended parents. The only people who can go for the commercial surrogacy in India are only Indian intended parents. The ban on foreign intended parents in 2015 was only the start of the legislation regulating surrogacy.
Surrogacy bill gained the eyes of legislature in 2015 and finally in 2016 Government proposes the guidelines for imposing certain restriction on surrogacy it was as follow:
- The bill entitles only Indian citizens to avail surrogacy; foreigners and NRIs are not allowed to commission surrogacy in India.
- Homosexuals and single parents are also not allowed for surrogacy and couples who already have children are also not allowed to go for surrogacy.
- The couple seeking surrogacy should posses a certificate of essentiality issued by an appropriate authority.
- According to bill, women between the ages of 25 and 35 years can go for surrogacy and one woman can only be a surrogate once in her lifetime.
- The surrogate mother must be a close relative of the intending couple.
- The couple seeking surrogacy also have some guidelines. The woman should be of age 23-50 and the man should be of age 26-55 and the couple should be married for at least five years.
- The bill contains the provision of penalty and imprisonment if the person violated the law.
In December 2018, an Indian Surrogacy (revised) bill was passed which narrow done the horizon of surrogacy countrywide and it also include the guidelines which were proposed in 2016
- Made Commercial Surrogacy illegal
- Only allows Altruistic surrogacy for needy, infertile Indian couples.
- Requires intended parents to be married for five years and have a doctor’s certificate of their infertility.
- Restricts women to being surrogates only once, and only if they are a close relative of the intended parents, are married and have biological child.
- Bans single parents, homosexuals and live-in couples for surrogacy.
These changes reflect a new era of surrogacy in India. But still now it was lying on the table of Rajya Sabha. Still not became an Act.
WHY HAS INDIAN SURROGACY BEEN BANNED?
It is hard to pinpoint any specified reason for the ban of surrogacy in India for international parents but there can be many reasons which played a vital role for making legislature to think on this issue.
Few of them are when commercial surrogacy was allowed at that movement any infertile couple from foreign country came India to find a Surrogate who can bear their child in her worm. After this the exploitation of Indian women began.
To justify this in 2012 a Japanese couple came to India in search of a surrogate. They probably found a suitable surrogate made a contract with her and went back to Japan. The lady surrogate bears their child. When the delivery was about to happen the couple went for the divorce and got separated. After that no one was ready to take the custody of the child. There were roots back which truly prove that commercial surrogacy was not a fruitful surrogacy.
Commercial surrogacy was banned because this leads to the exploitation of the women as well as child. The amount which were paid by the parents to the surrogate for medical treatment, diet and all. So that the mother should remain healthy which make the baby healthy were been taken up by the surrogate centres and very few amount were given to the ladies. If we ever think of counting the surrogate centres we won’t be able to done that because they are infinity. In India there are around millions of centres present and out of them only few centres are registered with the government. Then how come one can stop exploitation. If we talk about the women who agree to become a surrogate mother were usually from poor background. They conduct this activity to become a support system for their family. They came across the centre and lend their worm to bear some other persons child just for the sack of money. To give a womb for a rent means to nurture the fertilised eggs of another couple in your womb and give birth to the child with specific intention. Earlier surrogate mother could be of any no. of years there was no age bars, she can be less than 18 years which means that she haven’t even attain the age of majority and was forced to become a surrogate mother and this can even extend to the lady of 61 years.
This does not restrict only to the women who become the surrogate but also extended to the exploitation of the child. The baby born under this process also bears the losses. When the intended parents are from foreign countries take the baby back to their native country, the baby will not get the citizenship of that country because he was not born in that country, hence will not be granted legal rights of that country and will not be accepted there and were left abundant. After the non-acceptance by the parents lend these babies under work like household, begging and even to the Human Trafficking. There is plethora of reasons where the child was not accepted by the intended parents which make their life vulnerable.
Why do people opt for Surrogacy?
If we talk about people opting surrogacy as an option we will find numerous reasons behind it but the major one will be that the couples are not medically fit that they can bear a child but now a day’s despites of controversy and stigma, a growing no. of public figure are using science to start their family like Karan Johar, Tushar Kapoor, Sunny Leone, Shilpa Shetty and many more.
Karan Johar, Tushar and Ekta Kapoor recently become proud parents via surrogacy through the proposed bill restricted the unmarried couple or single parent to go for this activity.
Many renowned faces like Shahrukh Khan, Sunny Leone and recently Shilpa Shetty went for the surrogacy even the bill refrain them to go under surrogacy as they already have a child born naturally to them. But then why do they go for the surrogacy because they does not wanted to lose their body charm which was usually been lost when a woman become pregnant and gave birth to a child. The woman become unfit, become fatty and lost all her charm which she has in her initial times. This could be the reason why people are opting for the surrogacy apart from the parents who have medical affinity.
Surrogacy would be both a boon and a bane. Boon in a sense that it will be an option to the childless parents to have child who will represent them as mother and father. Bane for the surrogates who are been exploited. For that legislature have to take strict actions and have to make rigid laws in relation with surrogacy and will have work as the watchman by making an organisation which will help in controlling the exploitation.