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Surrogacy and Indian Laws

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Surrogacy and Indian Laws Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 Surrogacy and Indian laws Akshay Menon92, Jinal Sanghvi93, Lipika Sharma94, Sushmita Srivastava95 Introduction India has arose as a surrogacy hub for couples from diversenations for past few years. There have been testifiedevents of unethical practices, misuse of surrogate mothers, desertion of children born out of surrogacy and importation of human embryos and gametes. The Law Commission of India in the 228th Report, recommended for prohibition of commercial surrogacy by enacting anappropriate legislation. It has become essential to enact a legislation to legalise surrogacy services in the country, to disallow the probable exploitation of surrogate mothers and to safeguard the rights of children born through surrogacy.96 But what is ‘Surrogacy’? The word ‘Surrogate’ has its origin in the Latin term ‘Surrogatus’ which means a woman acts as a substitute for another woman. Surrogacy is a form of third party reproductive practice or an arrangement which the intending parents (unable to procreate on their own) and the surrogate mother mutually agree that the latter shall become pregnant, gestate and give birth to a child and shall legally and physically transfer the child to the intending parents without retaining any parentage or parental obligations. Surrogacy comes as an important option to fulfil the desire to have a child of such couple for whom it is physically or medically impossible or undesirable to carry a baby to term on their own. Surrogacy practices can be divided in two types, namely – Traditional- a surrogate mother is artificially fertilised, either by the intended father or an unidentified donor, and carts the baby to term. The child is essentially related to both the surrogate mother (who delivers the egg) and the intended father or unidentified donor; and Gestational surrogacy occurs in the context of assisted reproductive technologies such as in-vitro fertilization and embryo transfer where the surrogate mother is not genetically related to the child. Further, there are two types of surrogacy arrangements - Altruistic: where the surrogate mother is the one, who cares for the intended person or couple and due to her concern in the interest of the person or couple, decides to help them to become parents. Altruistic surrogacy has no space or scope for monetary compensation. In this procedure the surrogate mother obtains no monetary rewards for her pregnancy or the renunciation of the child to the genetic parents except for necessary medical expenses; and Commercial: the surrogate mother is remunerated over and above the essential medical expenses. In many countries all types of Surrogacy (both commercial and altruistic) are illegal and there are countries where commercial Surrogacy is banned and only altruistic Surrogacy is allowed. There are only few countries in the world where commercial Surrogacy is allowed like Russian 92 LLB, University of Mumbai 93 LLB, Jitendra Chauhan College of Law 94 BA LLB, Fairfield Institute of Management & Technology 95 LLB Hons., Amity University, Noida 96 Rajya Sabha Secretariat, New Delhi, August, 2017/ Shravana, 1939 (Saka), Report No. 102 51 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 Federation, Colombia, Ukraine and some states of USA like California, Illinois, Arkansas, Maryland, and New Hampshire. The discussion about implementing Surrogacy laws in India began with the Department of Health Research’s submission that the 228th Report (2009) of Law Commission of India strongly recommended for barring commercial Surrogacy and permittingprincipled altruistic Surrogacy facilities by enacting anappropriate legislation. Followed by the Public Interest Litigation filed by Smt. Jayashree Wad in the Hon’ble Supreme Court, which was considered by the Cabinet Secretariat in a meeting on 21.10.2015 and asked for a legislation to regulate Surrogacy. Subsequently, an Affidavit was filed in the Hon’ble Supreme Court undertaking to bring the legislation early. Multiple bills were drafted to regulate surrogacy in India in the year 2014, 2016 and 2019. The latestsurrogacy (Regulation) Bill, 2019 was presented in the Lok Sabha and passed by the house. The Rajya Sabha referred the bill to a Select Committee of the Rajya Sabha. The Union Cabinet approved the Surrogacy Regulation Bill 2020in February 2020 after including recommendations of the Select Committee. The Central Government shall notify the date of the commencement of the Act after enactment97. The mainadvantage of the Act would be that it will normalise the surrogacy services in the country. Commercial surrogacy will be disqualified including vocation of human embryos and gametes. Indian Matrimonial, Indian Origin Matrimonial and Indian Single Woman (only widow or Divorcee) will be permitted on accomplishment of certain conditions. As such, it will regulate the immoral practices in surrogacy, avert commercialisation of surrogacy and will banpossibleabuse of surrogate mothers and children born through surrogacy.98 Historical background of surrogacy The historical background of surrogacy is divided into three period- 1. Ancient period 2. Medieval period 3. Modern era Ancient period- The ancient period is further divided into 1. Ancient period in abroad 2. Ancient period in india Ancient period in abroad - The first mention of surrogacy biblical times: the primary mention of surrogacy are often found in “the book of genesis” within the story of sarah and abraham. Sarah and abraham were married but couldn't conceive a toddler of their own, so sarah turned to her servant hagar to be the mother of abraham’s child. This is often a case of traditional surrogacy, where the surrogate uses her own egg within the child she’s carrying for intended parents. Albeit sarah wasn't biologically associated with the baby, she and abraham both claimed the kid as their own. Up until about 30 years ago, traditional surrogacies like these were the sole way intended parents could create a toddler through surrogacy. The earliest known painting by matthias stoner 97 Cabinet approves the Assisted Reproductive Technology Regulation Bill 2020, Posted On: 19 FEB 20204:56PM by PIB Delhi 98 Report of The Select Committee on The Surrogacy (Regulation) Bill, 2019 52 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 depicts birth of Jesus with mother Mary. When we look around the world religions almost every religious script in some or the other way expresses that surrogacy had been accepted by the mankind since the beginning. In the bible according to new testamentary, it is explained that how mother mary who was a virgin gave birth to god's son jesus. Mary, the mother of jesus, was betrothed to joseph, but was found to be pregnant through the holy spirit sent by god and without sexual intercourse with joseph. To which joseph wanted to divorce her quietly, but an angel told him not to do so that he should take mary as his wife and name the child jesus in his dream. Ancient period in India- Similarly, in ancient hindu texts there existed a practice known as niyog pratha, this practice was known for surrogate fatherhood, wherein if the women is childless due to the impotency of her husband, she was allowed to conceive through her brother in law and that child belonged to the couple and the brother in law had no claim over it. This practice was less complicated legally and emotionally as compared to the surrogate motherhood. However, the bible promotes the idea of surrogated motherhood. In hindu mythology it is written in manu that “marriage has always remained the true foundation of every individual’s family, life and, when blessed with children, this is the god’s chosen way for continuance of making and bringing up the children in securing and trust”99. Surrogacy is the oldest means for the problem of infertility, an instance of surrogacy practice is also found in mahabharata where it is presumed that kauravas were born through surrogacy. Justice b.s chauhan in his article state that, “in the story of mahabharata, gandhari mother of the kaurava clan during her delivery did not bore a child rather she delivered a semi-solid material which was later divided by maharishi ved vyas into hundred pieces and later planted them in different pots, which were sealed for upto two years. Thus, the hundred kauravas were born”100. Another incident was found in indian mythology where, krishna was born as the eighth child of devaki, who was sister of king kamsa who, due to a prediction that one of devaki’s children would kill him, had imprisoned her and her husband and seized each of her children on birth. To save krishna’s life, he was discreetly exchanged for a cowherd’s daughter and krishna was brought up by the cowherd’s wife yashoda as his mother.Yashoda is recognized and revered as the surrogate mother to lord krishna, and most stories surrounding lord krishna in his infancy are about the loving bond and affection between him and his surrogate mother yashoda101. Thus, it can be traced by the, mythology that the concept of surrogacy is not a new evolved concept. The practice of surrogacy is defined as the “the process of carrying and delivering the child for another person” in black’s law dictionary.102 it may come as a surprise to everyone today but, surrogacy did exist in ancient times as well, widely mentioned in our mythology, and was practised, socially accepted and even respected. 99Tejas K Motwani, “Surrogacy: Legal Analysis and Development” KLJ (2011) 100 B.S Chauhan, “Law, Morality& Surrogacy-With Special Reference to Assisted Reproductive Technology” Nyaya Deep 7 (2012). 101Amrita Pande, ‘Not an Angel, not a Whore: Surrogates as Dirty Workers in India’ Indian Journal of Gender Studies https://journals.sagepub.com/doi/abs/10.1177/097152150901600201 102Black’s Law Dictionary, Bryan A.
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