What is the concept of surrogacy?
Infertility is often considered a disgrace in Indian society. It is known that the pain and problems of infertility can be best felt and described by couples who are infertile themselves[1] . There are two types of infertility, medical or physical infertility where a parent isn’t in a position a carry a child in her womb. In such cases, the most advanced technology in medical terms that is the surrogacy can be put to use. Surrogacy is an agreement or way where a woman carries the pregnancy of another couple for 9 months in her uterus, gives birth to the child, and hands it over to the parents. With the invention of assisted reproductive technology, the percentage of people opting for surrogacy has increased sharply. Surrogacy procedure can be opted by only those couples who cannot reproduce or give birth to a child naturally As the percentage of people opting for surrogacy increased, this procedure slowly transformed into commercial surrogacy.
Is surrogacy legal in India?
Dr. Harsh Vardhan, who is the Health and Family Welfare Minister introduced The Surrogacy (Regulation Bill), 2019 on July 15th, 2019 in the Lok Sabha. It was approved by the Lok Sabha on August 5th,2019. A Select Committee was initiated on November 21st, 2019 in the Rajya Sabha to which the bill was mentioned. The Select Committee was headed by Shri Bhupender Yadav. The report arrived on February 5th, 2020. The bill states that only altruistic surrogacy is allowed in India and not commercial surrogacy. This is because there was rigorous exploitation of surrogate mothers and their children. If the surrogate mother died, and her children were abandoned. The embryos and the gametes were being bought and sold in India and outside the country. And hence the unethical and commercial practice started in India. The Bill also states that surrogacy can only option if one or both partners are proven infertile or unable to have a baby. (Asthana, 2019) .
Is surrogacy morally and ethically right?
There have been many problems attached to the procedure of surrogacy. Many times the surrogated mother finds it difficult the give away the child as she might have been emotionally attached to the child as she carries the child in her body for nine months. But due to her financial problems or due to the surrogacy contract she signed for, she has to give up the child. In India, many people feel that a woman who carries the child in her womb for 9 months is the original parent of the child and hence are against the concept of surrogacy where one woman carries the child of another in her womb. There are many ethical and moral problems attached to the concept of surrogacy. But other people also feel it's ethically and morally right as it is the only way to have their child or heir when they are infertile. All the couples wish to have a kid of their own but when turn out to be infertile or aren’t able to give birth, this concept of surrogacy gives hope and happiness in their lives in the form of their child, their blood but from a third party womb which they don’t feel is ethically, morally or legally wrong.
What are the laws related to surrogacy in India?
The parliament has approved the Surrogacy (Regulation) Bill, 2019 in the year 2019 which governs regulates, and laid down rules and regulations to be followed during the procedure of surrogacy. The select committee then drafted the Surrogacy (Regulation) Bill, 2020 which states that there would be an establishment of regulatory bodies at the central level, state level, and for the union territories which plays the advisory, supervisory and administrative role to National Surrogacy Board. The bill even banned commercial surrogacy and permitted altruistic surrogacy. The bill further defined exactly means the term infertility or infertile couple. The 2019 bill mentioned that only infertile couple can opt for surrogacy but 2020 bill also permits single mother who doesn’t need a partner or a husband can opt for surrogacy.
Who are valid to be chosen for the surrogacy procedure?
The following are valid to opt for surrogacy procedure:-
· Only Indian couples where both partners are of Indian origin.
· Indian single women
· Indian origin infertile couple
· The couple who are married but doesn’t have kids for more than five years
Only the above following people are eligible to opt for surrogacy procedure regulated by Surrogacy Regulation Bill, 2020.
Who are the women who chose to become surrogate mothers?
Any healthy women who don’t have any bad habits like drinking or smoking, etc are qualified to be a surrogate mother though she isn’t a relative or an acquaintance of the infertile couple. This is regulated by the Surrogacy Regulation Bill, 2020.
FAMOUS CASES RELATED TO SURROGACY
1. Baby Manji Yamada v. Union of India and another[2]
This is one of the famous cases related to surrogacy where a child was born to an Indian surrogate mother for a Japanese couple. The biological father had to go to Japan due to visa expiration so the visa and passport were issued to the child and the grandmother. Later they got to know that it was commercial surrogacy run by a surrogacy racket. An NGO worker filed a petition on the issuance of visa and passport of the child which is against the Protection of Child Rights Act, 2005.
2. Jan Balaz v. Anand Municipality and Ors[3]
In this case, a mistake was made in the surrogacy agreement where the surrogate mother’s name was written as the wife of the intended father which caused a lot of trouble in drafting the birth certificate of the child.
3. K.Kalaiselvi vs. Chennai Port Trust[4]
In this case, an infertile couple where the wife had removed her uterus due to health issues opted for a surrogacy procedure for a child after her son’s death. After having a baby girl child, she applied for maternity leave which was rejected by the authorities of Chennai Port Trust as she didn’t give birth to the child directly. When she filed a petition in the court with all the documents, the court gave a judgment in favor of the petitioner and asked the Chennai Port Trust to grant her a maternity leave of 59 days.
4. Kiran Kailas Gavhande and Another vs. Union of India and Others[5]
In this case, an infertile couple opted for a surrogacy procedure and approached a surrogate mother. When the whole procedure started, after few months during the regular check-up, it was found that the heart of the fetus had complications and the doctor suggested the couple and infertile mother get aborted. But they had to go through a lot of procedures due to The Medical Termination of Pregnancy Act, 1972.
CONCLUSION
Surrogacy has always been both a boon and a bane for Indians. It depends on the mindset of people on how they would like to consider the concept of surrogacy whether like boon or bane. Few people consider it a blessing as it's one of the safest methods in having a child for infertile parents. While few others feel it's something ethically and morally wrong as they have a thought that their hair should be born from their womb and such people find this procedure wrong. The researchers personally feel that this procedure of surrogacy is indeed a boon for infertile parents who always dreamt of having their child. This concept can be continued to be a boon as long as it is regulated and not misused.
CONTENT WITER:
NAME: S CHINMAYEE
COLLEGE: SYMBIOSIS LAW SCHOOL, HYDERABAD
[1] R S Sharma, Social, ethical, medical & legal aspects of surrogacy: an Indian scenario, Indian Journal of Medical Research, (November,2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4345743/ [2] Baby Manji Yamada v. Union of India and another,(2018)13 SCC 518. [3] Jan Balaz v. Anand Municipality and Ors, AIR 2010 Guj 21. [4] K.Kalaiselvi vs. Chennai Port Trust , (1993)3 SCC 715 [5] Kiran Kailas Gavhande and Another vs. Union of India and Others , 2018 SCC OnLine Bom 18453
Comments