Surrogacy (Regulation) Bill, 2019 with new dimensions  

It was Feb 2015 when Supreme Court while hearing a PIL asked the Government to clear its stand on commercial surrogacy . Advocate Jayashree Wad,the petitioner alleged that number of foreigners landing up in India for hiring poor Indian ladies for surrogacy leading to exploitation by the doctors, hospitals and institutions that carry on such business. This amounts to violation of the rights under Article 21 (right to life and liberty).it was said.

What is surrogacy

Surrogate Motherhood is the process by which a woman bears a child for another infertile couple. It’s hiring of a womb by making payment to the surrogate apart from health   care expenses.

The concept of surrogate motherhood came into light in 1976 when the lawyer Noel Keane arranged the first formal agreement between a couple and a surrogate mother in the United States. The marketing of "surrogacy" developed as a solution to female infertility.

In 1986 surrogacy was further highlighted with the case of "Baby M." In this case, the woman hired as a surrogate, Mary Beth Whitehead, later refused to relinquish the child. After intervention of court, the hiring couple won custody of the baby, but natural mother remained the legal mother with visitation rights.

A case before the Supreme Court of India by an American couple for taking their child from surrogate mother in India to their country had caused a lot of problem while issuing visa for the child as the question before the court was to ascertain the paternity of the child. No consideration can be taken or given for adoption of the child. The surrogate mother is hired by making payment to the woman who bears the child for another woman; hence child born through surrogate mother cannot be called an adopted child as per Indian law

As per recommendation by law commission of India in its 228^th report, the new ‘Assisted Reproductive Technology’ (ART) states that the surrogate mother can receive monetary compensation for carrying the child, in addition to health-care and treatment expenses during pregnancy.  But the surrogate mother has to relinquish all parental rights over the child and birth certificates will be in the name of commissioning parents. The age-limit for a surrogate mother is between 21- 45 years. Single parents can also have children using a surrogate mother.

Certain guidelines had been drawn by the law commission, summed up as hereunder:

1)      Surrogacy arrangement will be governed by Contract law, specifying the terms requiring consent of surrogate mother to bear child,  medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying the child to full term, to hand over the child born to the commissioning parent(s), etc.

2)      A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

3)      One of the intended parents should be a donor in order to avoid child-abuse

4)      Legislation should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without need for adoption

5)      The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

6)      Right to privacy of donor as well as surrogate mother should be protected.

7)      Sex-selective surrogacy should be prohibited.

8)      Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

First fertility law firm in India

G R Hari, an Advocate enrolled in the Bar Council of Tamil Nadu, India and Associate Member of American Bar Association, founded India's First Fertility Law Firm, Indian Surrogacy Law Centre (ISLC) which deals with surrogacy related issues.  ISLC facilitates contractual relationships between the surrogates and intended parents, providing surrogates for intended parents, providing legal assistance to either of the parties to the surrogacy agreement.

Indian Council of Medical Research (ICMR) has set “national guidelines” to regulate surrogacy

 But these are simply guidelines and Surrogacy in India is still unregulated. There are no stipulations as to what will happen if this ‘contract’ is violated.

 In this way, Commercial surrogacy in India was legalized in India in 2002

Effect on religious and moral values

 

By going against the nature through surrogacy method moral and religious questions have been raised because it is against the laws of nature to produce a child in a laboratory. Most of the reproductive techniques involve means other than traditional procreation. Also, commercial surrogacy in other words amounts to the "selling of babies’’.

From the religious perspective, some religions do not permit reproduction through means other than natural procreation because a child is seen as a "gift" from God

 

Influence on Hindu acts

According to Section 17 (B) of Hindu adoption act provides that no person can take or promise to take, or, agree to take money in Lieu of adoption. The child born out of surrogate process cannot fulfill the terms of adoption under Indian law as money and hiring womb is involved in the process ,cannot be said adopted child

 

Section 16 of Hindu marriage act provides that illegal child gets the right to the property of biological father, in case child born from surrogate mother is born disabled and hiring couple refuses to accept, child shall have the right to the property of father.

 

As per Hindu succession act mother has the right to the property of son, surrogate mother once gives birth to the child becomes natural guardian /being mother gets right to the child’s property

 

 

Surrogacy (Regulation) Bill 2018 was passed by Lok Sabha in December, 2018, and outlawed commercialization but it lapsed.

The Government now introduced the Surrogacy (Regulation) Bill, 2019 in the Lok Sabha which would ban commercial surrogacy and allow only close relatives to act as surrogates to infertile couples During the nearly two decades it was legal, India was a major provider of surrogacy for both domestic and international intended parents.

 

Features of this new proposed Bill Surrogacy (Regulation) Bill, 2019 

Criteria for couples intending to commission surrogacy?

 

• They are Indian citizens who have been married for at least five years;
• They are in the age group of 23-50 years (female partner) and 26-55 years (male partner);
• A medical certificate stating that either or both partners are infertile;
• They do not have any surviving child (whether biological, adopted or surrogate), except if the surviving child is mentally or physically challenged or suffers from a fatal illness;
• A court order concerning the parentage and custody of the child to be born through surrogacy;
• Insurance coverage for the surrogate mother

 

Legal status of a surrogate child?

The Bill states that any child born out of a surrogacy procedure shall be the biological child of the intending couple and will be entitled to all rights and privileges that are available to a natural child.

 

Who can be surrogate?

·         A woman should be allowed to act as a surrogate mother only once and should be a close relative of the intending couple and "should be an ever married woman having a child of her own and between the age of 25-35 years". 

 

Dr Prem Lata 

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