RESTRICTED SURROGACY MARKET � A SOCIO-LEGAL PERSPECTIVE OF SURROGACY IN INDIA(By-Trisha Prasad)

RESTRICTED SURROGACY MARKET – A SOCIO-LEGAL PERSPECTIVE OF SURROGACY IN INDIA

Authored By-Trisha Prasad

Abstract

Surrogacy refers to the type of reproductive practice in which a woman agrees to carry and give birth to a child for another intending parent or intending couple. Surrogacy has been in practice for much of history in India and globally. Along with the stories of success and the creation of satisfied, happy families, the surrogacy industry established as a result of  commercial surrogacy was also exploitative and misused. At the same time, it was also a form of livelihood for many poor women who were willing to undergo the process of being surrogate mothers.  However, it was not until recently that laws were created to regulate surrogacy in India which previously was a hub for international surrogacy. The new Surrogacy (Regulation) Act, 2021 that came into effect in January 2022 attempts to regulate surrogacy in India. It is however highly criticized for narrowing the stakeholders to whom the option of surrogacy is available. The Act allows surrogacy for heterosexual married couples and divorced or widowed women. It prohibits surrogacy for members of the LGBTQ+ Community, single males, foreign citizens and couples in a live-in relationship. The Act also imposes a blanket ban on Commercial Surrogacy in India. All these above provisions have been criticized for being discriminatory and there are expectations of it having a negative impact on society within a short period of time after its enactment.

Keywords: Heterosexual Couples, Commercial Surrogacy, Single Parents, Live-in Couples

Introduction

Surrogacy in layman’s terms refers to a practice or arrangement in which a woman agrees to carry and give birth to a child for someone else. Surrogacy in India is governed by the Surrogacy (Regulation) Act, 2021[1] (hereinafter referred to as The Surrogacy Act) which defines it as “a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth”[2]

There are two types of surrogacy procedures practiced across the world. The first type of surrogacy, is an arrangement where the surrogate mother carries a child and delivers the child for an intending couple. In this type of surrogacy ,also known as gestational surrogacy, the surrogate mother is in no way biologically related to the child as the egg that conceived the child would not be her own. The second type of surrogacy also known as traditional surrogacy has become less prevalent in the recent years. This type of surrogacy requires the surrogate mother to provide her own egg to conceive the child that she would carry for  the intending couple. The practice of surrogacy can be further divided into two distinct methods of practice based on the monetary obligations - Commercial Surrogacy and Altruistic Surrogacy. The former is banned in India but is legally prevalent in some countries including Ukraine, Russia, some States in the United States of America, Greece, etc. Commercial Surrogacy in simple terms refers to the system or process of surrogacy in which the Surrogate mother is paid compensation which includes money apart from that which is given for medical expenses and insurance. Altruistic surrogacy on the other hand refers to a practice where a woman volunteers to fulfil the role of a surrogate mother without receiving any form of monetary compensation exclusive of medical expenses and insurance.

Tracing the historical evolution and circumstances of any law, regulation or rule is essential in understanding both the necessity as well as the social situation created by the law in force. The practice of surrogacy for the most part of history was an unregulated area in India. In 2002, commercial surrogacy was legalized in India[3]. The practice of commercial surrogacy was exploitative in nature but , it also helped impoverished woman who were willing to get involved in the process and treated surrogacy as an ethical means of earning[4].

A report by the United Nations in July of 2012 reported that the Indian surrogacy market amounted to $400 million every year and that there were over 3,000 centres across the country at that time[5]. The Indian state has on various occasions attempted to pass legislations for the regulation of surrogacy in India. The 228th Law Commission Report[6] emphasised the need to regulate Surrogacy , rights and obligations of the involved parties as well as Assisted Reproductive Technology (ART) clinics. The commission had in this report suggested that commercial surrogacy must be banned while ethical altruistic surrogacy must be permitted[7]. However, Commercial Surrogacy continued to exist for a few more years. In Indian Council for Medical Research’s (ICMR) regulations or guidelines for surrogacy in 2005, it was clearly stated that the Surrogate mother is entitled to monetary compensation from the intending couple. The first bill to regulate surrogacy was introduced in the Lok Sabha on 21st November 2016. The Surrogacy (Regulation) Bill, 2016 focused on the prohibition of Commercial Surrogacy and promotion of Altruistic surrogacy as recommended by the Law Commission report. It also discussed the establishment National and state surrogacy boards as well as other authorities specifically for the cause. The Bill was subsequently passed by the Lok Sabha. Following this however, the Bill lapsed. The bill was then reintroduced in 2019. Commercial Surrogacy was finally officially banned after the Surrogacy (Regulation) Act, 2021 was passed and received the president’s assent on 25th December of that year. It came into effect on 25th January, 2022.

Parties Involved In Surrogacy

Traditionally, the surrogacy process involves the Surrogate Mother and the intending parent or parents. In the gestational form of surrogacy, a donor may also be indirectly involved. Additionally, Gamete banks authorized to collect and safely store eggs and sperms that are donated for the purpose of assisted reproduction play a significant role. Surrogacy clinics as well as specialized experts and doctors are intrinsic to the process of surrogacy.

 As per the Surrogacy (Regulation) Act, 2021, “Surrogate Mother” refers to “a woman who agrees to bear a child  through surrogacy from the implantation of embryo in her womb.”[8] ,and “Intending Couple” refers to “a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy”[9].  The above term of intending couple is further narrowed down by the act which defines a “Couple” as a legally married man and woman who are of marriageable age, i.e., 21 and 18 years respectively[10]. As analysed in the subsequent parts of this paper, the Surrogacy Act also defines “intending Woman”. Further, the Surrogacy Act is also closely tied with the Assisted Reproductive Technologies (Regulation) Act, 2021[11] (hereinafter referred to as ART Act) which was passed on 18th December 2021. This Act defines various other concepts that are not specifically mentioned in the Surrogacy Act but are relevant to the Act and vice versa. There also exists a clause in both the acts that specify that any relevant term not defined in the respective Acts but is defined in the other act will be made applicable. For example, the Act defines a Child as any individual who is born through any form of assisted reproductive technology[12].

Restrictions

In the case of Baby Manji Yamada[13], in 2008, a baby was born by way of surrogacy using the sperm of a Japanese man who along with his wife had opted for surrogacy and the egg of an unknown donor. This was one of the first cases that strengthened the opinion of the judiciary about the need for strict regulation of surrogacy in general as well as commercial surrogacy in India. Over the years, the parliament has attempted to pass various versions of the Surrogacy (Regulation) Bill with the Bill of 2020 eventually being enacted as a law the following year.

The Surrogacy Act as passed in 2021 has turned out to be highly restrictive despite the modification made to the previous bills. The surrogacy Bill of 2019 for example, had provided that only close female relatives of the intending couple who are willing to be surrogate mothers could actually serve as surrogate mothers for the couple.

 This clause however, was removed while enacting the bill as it was highly restrictive and narrowed down the option of surrogacy available to the intending couple. According to the Surrogacy Act, the surrogate mother can be any willing woman between the age of 25 and 35 years provided she is married and has a child of her own[14]. A surrogate mother is also not allowed to donate her own egg for the purpose, effectively banning traditional surrogacy and promoting gestational surrogacy in which the surrogate mother is in no manner related to the surrogate child, biologically. A woman is also restricted to become a surrogate mother only once during her lifetime[15]. The provisions of the Act also prohibits inter-country surrogacy or international commercial surrogacy as the Act specifies that the intending couple must be Indian[16]. Couple who already have a surviving child whether a biological child, surrogate child or adopted child are also excluded opting for a child through the process of surrogacy[17]. The only exception to this rule is if the surviving child is mentally or physically challenged or is suffering from a fatal or life-threatening illness[18].

The above provisions as well as the banning of commercial surrogacy were made with the objective of preventing exploitation and protecting the health, interest and wellbeing of surrogate mothers. It is however criticized for restricting the reproductive rights or choices of women and those willing surrogate mothers who actually benefited from commercial surrogacy.

Ban On Commercial Surrogacy

While a ban on commercial surrogacy may seem like a momentous achievement and a step forward in terms of protecting the welfare of women, a blanket ban rather than strict regulations will over time highlight various issues. As a country that was a large market for surrogacy in the past, a blanket ban on commercial surrogacy would only possibly create an undergrounds market for that same that would end up being more exploitative and violent for women who are willing to be surrogate mothers or those who wish to earn money by doing so. Additionally, altruistic surrogacy narrows the scope of couples who wish to opt for surrogacy. In reality, finding a woman who is willing to be a surrogate mother for free, i.e., without any additional payment or compensation is a

very difficult task and hence a lot of those couples who wish to have a biologically related child through surrogacy have to turn to adoption and other methods of ART to have a family. Therefore, while it is important for surrogacy to be regulated in order to prevent exploitation and legal disputes, the provisions of the Surrogacy Act that bans Commercial surrogacy and imposed a large number of restrictions on those who can opt for surrogacy as well as those who can be surrogate mothers is highly discriminative and would only prove to be harmful in the long run.

Exclusions

Another major setback in the law in terms of the progressive nature of society is the fact that the act only recognizes heterosexual couples as being eligible for becoming intending couples who may opt for surrogacy. The language of the statue specifies that a “Couple” must necessarily be “legally married Indian man and woman above the age of 21 years and 18 years respectively”[19] The specific inclusion of this definition leaves members of the LGBTQ+ community as well as those couples who are in a stable live-in relationship  out of the ambit of surrogacy. Additionally, while single woman who are either divorced or widowed may opt for surrogacy[20], single males may in no circumstances opt for the process of surrogacy. Neither single men nor single woman who have not been married are permitted to have a child through surrogacy.

The Supreme Court has upheld that the right to reproductive choices is an important component of Right to life and liberty as specified under Article 21[21] of the Constitution[22]. Additionally, the provisions of the act also proves to be violative of Right to equality under Article 14[23] of the Indian Constitution as it excludes certain section of the society[24] and discriminates against them without any reasonable nexus. The court has recognized that all decisions related to reproduction are personal rights and decision of an individual[25].

For all the above reasons, the Act as well as all the previous Bills had been criticized as being a purely “need based approach rather than a right based approach”[26]. The law is also outlined as being highly discriminatory against the LGBTQ+ community and single, unmarried males and females.

Transgender Rights And Same-Sex Couples

Surrogacy is a method of reproduction that allows those people who wish to have a biological child but are unable to do so for various reasons[27]. Transgenders have been recognized as the third gender in India and the Transgender Persons (Protection of Rights) Act, 2019[28] had been enacted to ensure equality for transgenders and to protect their rights. The judiciary too has in the case of National Legal Services Authority v. Union of India[29] recognized the rights of transgenders to be full citizens of the country and be treated equally.

Prior to the regulation of commercial surrogacy in India as the law exists today, the first step taken by the Indian Government dated back to July 2012 where the Union home minister released and circulated a circular that stated that foreigners intending to opt for surrogacy in India can only do so on a medical visa. The issuance of medical visa for the above purpose was restricted to specific people. The circular banned the issuance of medical visas to homosexual couples, single queers, unmarried men and women, etc. Before the regulation of surrogacy, homosexual couple were allowed to opt for surrogacy in India.

Despite homosexual or same-sex relations being recognized in India following the case of Navtej Johar v. Union of India[30], equal rights to members of such community have not been recognized. It is considered to be essential to include the LGBTQ+ community within the ambit of the surrogacy laws as they belong to a section of society who cannot naturally have biological children of their

own. Neither the ICMR Guidelines, nor the Surrogacy Bill include Homosexual couples and transgender couples. The right of parenthood should not be denied merely on the basis of the fact that the members of the community are not heterosexual couples. The explanation put forth by the Indian Department of Health Research at the Bill stage of the current Act was that there is a valid concern about homosexual couples separating and getting “married” easily and at any point, this would majorly complicate the surrogacy process[31].

Single Parents

According to the new Act, single males and unmarried single women are barred from opting for surrogacy. While all single males are excluded from the act, single females who are either divorced or widowed have the right to have a child by way of surrogacy. Prior to the enactment of the Act, it was estimated that around 20% of the surrogacy cases being handled in India comprised of single men and women[32]. Prior to the passing of the Surrogacy (regulation) Bill, 2019, the Rajya Sabha had directed it to a standing committee. During this period of analysis, many aspects including the exclusion of single parents were questioned. The Department of Health resources merely stated that the burden or responsibility of parenthood cannot be handled by a single parent. This view was however condemned by the standing committee who were of the opinion that divorced women, widowed women and unmarried couples should also be eligible for surrogacy[33]. Despite this opinion, the Surrogacy Act of 2021 only incorporated widowed women and divorced women as eligible singles who could opt for surrogacy. Single males were never considered during the entire process of framing surrogacy laws.

Live-In Couples

A live-in relationship or cohabitation refers to a couple in a physical or emotional relationship who decide to live together for a long period for time without being married. In terms of the exclusion of live-in couples from surrogacy, there is a common contention that since the decisions of the

Supreme Court recognizes children born in a live-in relationship as legitimate children[34], surrogate children who are considered to be biological children of the intending couple must also be recognized by law. The judiciary has also in previous cases recognized long standing live-in relationships to be on par with marriage[35]. It is hence necessary for the surrogacy laws to include live-in couples rather than taking away their right as accorded by the above interpretation.

Conclusions And Suggestions

The procedure of surrogacy has been in practice for a long time in India as well as the rest of the world and it was unregulated for most part of history in India. Over time, the government and judiciary have realized that the practice of Surrogacy is one which requires regulations and laws to be put in place in order to prevent exploitation, misconduct and misuse. However, this does not mean that the law is required to create a blanket ban on commercial surrogacy in the manner that the Surrogacy (Regulation) Act, 2021 provides for. Additionally, as opposed to the progressive nature of society as well as the changing social norms and legal recognition of the rights of various sections of the society, the Act has expressly and impliedly excluded various groups of people from opting for surrogacy. The Act has created a very narrow section in society for surrogacy laws and procedures to operate. There is a need for the legislature to review and amend the act in order to include those sections of society who wish to opt for surrogacy but are prohibited under the act. The scope of ‘intending parents’ under the act must also include members of the LGBTQ+ Community, couples in a live-in relationship and single males and females. Additionally, the blanket ban over commercial surrogacy must be lifted and strict rules to regulate commercial surrogacy must be imposed instead. While the Surrogacy Act was drafted with the right objectives in mind and some of the provisions of the Act may be beneficial in protecting the rights and interests of surrogate mother, it is necessary to amend it as the Act has made the process of surrogacy highly restrictive, denying the right of choice to not only women but various other sections of the society. It also curtails a practice that was once a livelihood for women who wished to do it and volunteered for the same. Such a restriction would only increase the chances of exploitative underground markets or loss of beneficial income for some sections of willing women who were open to being surrogate mothers for a price.

References

Primary

B.K Parthsarthi v. Government of Andhra Pradesh, AIR 2000 AP 156
Baby Manji Yamada v. Union of India,  (2008) 13 SCC 518
Law Commission of India, Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy, Report No.228, (August,2009)
National Legal Services Authority v. Union of India,(2014) 5 SCC 438
Navtej Johar v. Union of India,(2018) 10 SCC 1
Payal Sharma v. Nari Nikatan, AIR 2001 All 254
SPS Balasubramanyam v. Suruttayan, AIR 2010 SC 2685
Suchita Srivastava v. Chandigarh Administration, AIR 2010 SC 235; Devika Biswas v. Union of India, (2016) 10 SCC 726
The Surrogacy (Regulation) Act, 2021
The Transgender Persons (Protection of Rights) Act, 2019
Secondary

Aastha Malhotra & Arshia Roy, Reconceptualising Parenthood: A Model Regulatory Framework for Assisted Reproduction in India, 13 NUJS L. REV. 1 (2020).
Aparajita Amar & Arjun Aggarwal, The Emerging Laws Relating Surrogacy: A Procreational Right for Single Parent, Transgenders and Foreigners, SCCOnline
Ayan Guha & Neha Chauhan, Regulation of Commercial Surrogacy in India: Some Suggestions, 6 INDIAN J.L. & Just. 92 (2015).
Eashan Sonak & Sanvi Bhatia, India’s New Surrogacy Bill Falls Short of Protecting Bodily Autonomy and Guaranteeing Reproductive Liberty, LSE Human Rights Blog
Ipshita Mishra, Surrogacy in India and Related Laws, 1 Jus Corpus L.J. 218 (2020).
Isha Srivastava, The Facets of Surrogacy in India, 3 Supremo Amicus 270 (2018).
Jaya Reddy, Indian Surrogacy: Ending Cheap Labor, 18 Santa CLARA J. INT'l L. 92 (2020).
Sudipta Sengupta, Birth Pangs: No Room for Singles in Surrogacy Bill, The Times of India,
Urvi Gupta, Surrogacy: History and Contemporary Laws with Focus on Commercial Surrogacy, 2 Jus Corpus L.J. 481 (2021).