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| COPYRIGHT @INDIAN EXPRESS |
This article is written by Miss SAUMYA SINGH, 3rd year B.A.LL.B student of University Institute of Legal Studies (Panjab University).
From being a single soul, dwelling in two bodies a relation florescence to become a family by the arrival of tiny feet in the world. For centuries the desire to become parents is being either fulfill by having a natural child or by adopting, alongside the scientific advancement have blessed infertile couples with their own baby and surrogacy one of that evolution. Surrogacy is a method of assisted reproduction where intended parents work with gestational surrogate mother who will carry their child. The fundamental notion of surrogacy is long drawn from Biblical allusion to Mahabharata.
CHRONICLE ACCOUNT-
The pre-eminent appearance of surrogacy can be hinge on the story of Sara and Abraham a couple(1) who weren’t able to conceive, so Sara call for favour to her wench Hagar to be their surrogate mother as cited in Bible. While digging into Hindu scriptures it came as surprise to me that Mahabharata antagonists ‘The Kaurvas’(2) begetting is the consummate example of Surrogacy as Gaandhari's pregnancy went on for 2 years and she delivered a mass, the mass was put into a nutrient medium which developed on becoming 100 males and 1 female.
Commemorated in past, perpetuated in present is a dark truth of Surrogacy in the contemporary world. To a greater extent, it’s becoming an international and national matter of discourse. Between this struggle vox of triumph were heard in Re Baby M case of 1985 (3), a couple from New Jersey entered into a contract with surrogate Mary Whitehead. After child was born Whitehead decided to keep the baby and fled to Florida. In 1987, the New Jersey highest court upheld the contract and took all parental rights of Miss. Whitehead and put the baby on legal adoption to her biological parents. Re Baby M. case went on inspiring the validation of surrogacy in America and is considered as the metonym of surrogacy law in the US.
Nevertheless, three decades since the Re Baby M case, India has emerged as a leader in the international surrogacy market and towering business of more than $400 million/annum(4), according to the 2012 UN Report. But, now the question boils down that does India’s legal framework is inept enough to regulate the surrogate industry even-handedly? Deliberation over this question can be transcribed from the regulatory framework of surrogacy in India.
CONSTITUONAL POSTION IN INDIA-
Legalization of commercial surrogacy(5) in India has been vestige from 2002 till 2015, during this stretch rules regulating surrogacy were hurled down into the pit of maladministration, which made ICMR to introduce the recycled and scrupulous guidelines for the practice of surrogacy in 2005, despite this surrogacy was succinctly been misused by the foreigners.
In 2008 the celebrated case of Manji v. Union of India recognized the stir need of a legal framework for the protection of surrogates. In this case, a Japanese couple hired Gujarati women as a surrogate, when women conceived with their baby they refused to take the child since they got separated. Now the question of custody of the child arose as Indian government didn’t allow single male parents to be the soul guardian of a female child and the Japanese government denied citizenship to babies as commercial surrogacy is prohibited in Japan.
Constant instances like these concerned Indian Law Commission and they endorsed the 228th report, debarring commercial surrogacy and prohibit foreigners from their Indian surrogates. A PIL was filed in Supreme Court Jayashree Wad v. Union of India, to end the commercial surrogacy, and contentions of the petitioner were approved. Prompted by consecutive actions of the judiciary, in 2016 government introduce The Surrogacy (Regulation) Bill, 2016, and brought the Altruistic Surrogacy model in India. However, in 2016 parliament got dissolved and the bill lapsed and was reintroduced in 2019 as The Surrogacy (Regulation) bill, 2019.
Provisions of Surrogacy (Regulation) Bill, 2019-
Regulation of surrogacy- Legalising Altruistic Surrogacy and banning Commercial surrogacy.
Intended parents eligibility- They should be Indian citizens, are married for the last 5 years, and have no surviving child.
Surrogate mother eligibility- She needs to be a close relative of intending couple and has a child of her own.
Regulating Board- Constitution of National and State Surrogacy Board for advising central government on policy matters relating to surrogacy.
Abortion and Parentage of Child- Medical Termination of Pregnancy Act, 1971 states that abortion of surrogate child needs the prior consent of mother and authority. Whereas parentage of child deem to be biological of an intended couple.
Offences and Punishment- For exploiting, abandoning the surrogate mother and child, or importing human embryo. The penalty to such offence is imprisonment up to 10years or a fine up to 10lakhs or both.
Though the bill got passed in Lok Sabha but, the greater part of Raj Sabha members had found certain provisions belligerent and it was referred to the select committee for re-assessment. The select committee proceeded with nine adamant sitting under the chairmanship of Bhupender Yadav and had a detailed examination of a bill with the assistance of the National Human Rights Commission, National Commission for Child Right, and Department of health research. They endorsed an altruistic model of surrogacy, the clause dealing with “close relative” has been supplanted with the phrase “willing women” and conceded widower/divorcee between 35-45age can avow as surrogate and to medically immunize her, insurance cover was elevated to 36months and asked parliament to introduce ART Bill prior to Surrogacy Bill so that technical and medical aspect could be handled appositely.
The union cabinet has nodded to the suggestion of the committee and amended the draft by eliminating the clause of “close relative” to “willing women” as a surrogate and increased the insurance cover time to 36months.
LAPS IN BILL-
Select committee consultations have widened the ambit of the surrogacy bill. Nevertheless, the exigency of minority communities has been ignored, banning commercial surrogacy has underhanded the prospect of economical advancement of a woman. Loopholes in bill are incessant, let’s have a censorious outlook of Bill and advocate improvisation in the current draft.
Surrogacy rights of LGBTQ, Only Indian parents, live-in-couples –
Bill defines “couples” as legally married Indian man and women, openly opposing the Right of equal treatment which completely impede LGBTQ+ community to opt surrogacy. In all way to stereotype their existence, by asking couple to provide infertility certificate which makes them eligible as intended couples.
Bill has completely overlooked the advancement in medical tourism as they specify Indian couples should be the intended couples and entirely excluded non-resident Indians, In addition to this it totally prohibits foreigners to contract with Indian surrogates.
Considering judicial enactment over the legitimacy of a child from live-in-couples are legally licit, and may be allowed to succeed inheritance in the property of parents which was held in Bharta &Ors. Vs R.Vijaya. Even then, they are reprobated to practice surrogacy which fundamentally narrows the concept of family.
Ban on Commercial Surrogacy-
The120nd Parliamentary Report explained the economic value to women opting for surrogacy which not only uplift her financially but also provide security to her family. Taking a view of banning commercial surrogacy won’t stop the exploitation of surrogates but there will be visible sprouting in the cases of illegal surrogacy market and women trafficking.
Hence, the altruist model of surrogacy should be replaced with the “compensated surrogacy”, where willing women either external or from family can contribute with financial security granted to them. As childbearing is a noble cause but can’t risk one health for the pious service as the patriarchal setup forces women to perform the duties they are not bound to which make them hoodoo their existence.
Age qualification of Intending Parents-
Certified age mentioned for intended parents in bill is 23 to 50 and 26 to 55 for wife and husband respectively. Prescribed age limit for either parent could lead to a high age gap between parent and child causing a lack of financial and emotional stability. Researchers have reported that an increase in parental age can have medical consequences on the health of newborn and affect their analytical/logical understanding. Hence, contemplative discussion over the age factor should be facilitated for the healthy growth of a child.
CONCLUSION-
“The right of every man are diminished when the right of one man is threatened” - John F.Kennedy
In case of Devika Biswas v. Union of India, the Supreme Court held that right to reproduction is an important aspect of the Right to life Article21. This has been blatantly violated while drafting the Surrogacy (Regulation) Bill2019, as reproductive right is denied to the LGBTQ+, single parents, live-in-couples, NRI couples. While drawing an inference against the bill is not the purpose of the article but to remonstrate the most doable and progressive look to the surrogacy regulating bill is our prime concern.
Today couples globally have multiple options to constitute a family from adoption to practice IVF techniques. But we can’t close our eyes for that vulnerable community of surrogates who makes their end meet by renting their womb. India has seen a high success rate of surrogate industry not only because of the inexpensive medical facility but the complex procedure for adoption as Hindu Adoption and Maintenance Act, 1956 admit only Hindus to adopt Hindu child with respect to all personal laws. The Guardians and Wards Act, 1890 is limited to the guardianship. Hence, legislators should understand detailed factors influencing surrogacy, and enact the legislation that ethically regulates surrogacy without sabotaging the basic rights granted to them by the judicial jurisprudence.
At last for all my intents and purposes I want to conclude by quoting Fleur Conkling that “Not fleshes of my flesh, nor bone of my bone, but still miraculously my own. Never forget for a single minute, you didn’t grow under my heart, but in it”.
REFERENCE:
1. By Heather, Abraham and Sarah(Bible Love Stories,Part2), PreEngaged,2, 4 February2016, Abraham and Sarah (Bible Love Stories, Part 2) - PreEngaged.com2. By STP Team, Kavita Kane Write about surrogacy in mythology, Shethepeople The Women’s Channel,3pg., September 4, 2017, Kavita Kane writes about surrogacy in mythology - SheThePeople TV
3. In re Baby M,109NJ 369, 537 A.2d 1227(1988)
4. By Nita Bhalla, Mansi Thapliyal, India seeks to regulate its booming ‘rent a womb’ industry, Reuters Publication, September 30, 2013, India seeks to regulate its booming 'rent-a-womb' industry | Reuters
5. By Bindu Shajan Perppadan, A setback for surrogacy in India?, The Hindu TH, 5pg., November 29,2015, A setback for surrogacy in India? - The Hindu
6. By Prasanna Mohanty, The Surrogacy (Regulation) Bill2019: A Causal approach to a serious concern, BusinessToday, August 15, 2019, The Surrogacy (Regulation) Bill 2019: A casual concern - BusinessToday
7. Baby Manji Yamada vs. Union of India (2008)13SCCC 518and In the matter of Baby case, Super3,(1987)
8. LAW COMMISSION OF INDIA, SURROGACY RIGHTS, S. Doc. No. 5-20, at 3-13, in Report no.228 (2009)
9. Smt. R. Jayashree vs. Union of India and Ors. (2006) 8SCC 212.
10. By Ministry of Health, The Surrogacy (Regulation)Bill, 2016, Prs Legislative Research PRS, pg.3-5, November 21,2016, The Surrogacy (Regulation) Bill, 2016 (prsindia.org)
11. By Ministry of Health, The surrogacy ( Regulation)Bill, 2019, Bill No.156-C of 2019, pg.4-16, http://164.100.47.l/70/137/156-C%20of%202019_2019_12_12.pdf
12. By Atulendra Rathour, Surrogacy Bill and Reproductive Right: An Analyis, TDG TheDailyGurdain, July 22, 2021, SURROGACY BILL AND REPRODUCTIVE RIGHTS: AN ANALYSIS - The Daily Guardian
13. By Special Correspondent, Cabinet approves surrogacy Bill, TheHindu TH, pg.5, 11 June 2020, Cabinet approves surrogacy Bill - The Hindu
14. R. Vijayan v. Baby (2012)1SCC 260
15. RAJYA SABHA, COMMERICAL VALUE OF SURROGACY, , S. Doc. No. 3-6, at 23-30, in Report no.120(2019)
16. By Martha A. Field, Compensated Surrogacy,WASH. L. REW. ,Vol.89 No.4 1155(2014), "Compensated Surrogacy" by Martha A. Field (uw.edu)
17. By Janeczko, Dominika et al. “Paternal age is affected by genetic abnormalities and mental health of the offspring.” Biomedical reports vol. 12,3(2020): 83-88. doi:10.3892/br.2019.1266, Paternal age is affected by genetic abnormalities and mental health of the offspring (nih.gov)
18. Devika Biswas v. Union of India (2016) 10SCC 726
19. Hindu Adoption and Maintenance Act, 1956.Act No.78 of 1956, Acts of Parliament, 1956 ( India)
20. The Guardians and Wards Act, 1890,Act No. 8 of 1890, Act of Parliament, 1890(India)
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