Research done by the World Health Organization (WHO) estimated that in 2010, 48.5 million couples worldwide were unable to have a child of their own. They suffered from infertility, which, the WHO says, is a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse. Given the advancements in medical science, couples have been trying different medical solutions to have children.
Over the years, India has become the hub of the global fertility industry, with reproductive medical tourism becoming a significant activity. Clinics in India have been offering assisted reproductive technology (ART) services such as gamete donation, intrauterine insemination (IUI), in vitro fertilisation (IVF), intracytoplasmic sperm injection (ICSI), preimplantation genetic diagnosis (PGD), and gestational surrogacy.
Surrogacy, in particular, has drawn many childless couples to India in the last few decades. Surrogacy is an arrangement where a woman (the surrogate) offers to carry a baby through pregnancy on behalf of a couple, and then return the baby to the intended parent(s) once it is born. Broadly, surrogacy is of two types — traditional and gestational. Traditional surrogacy involves insemination of the surrogate naturally, or artificially, with the semen of the male partner of the childless couple. A child born this way is genetically related to the surrogate mother. This has several ethical, social and legal implications. In the case of gestational surrogacy, an embryo from the ovum and sperm of intended couple is fertilised in a test tube and transferred to the womb of the surrogate. A child born through gestational surrogacy has no genetic similarity to the surrogate mother.
While many couples benefited from surrogacy facilities in India, the practice has persisted without any legal framework, working only on the basis of vague guidelines. Under these circumstances, there have been many reported incidents of unethical practices surrounding surrogacy. These practices include the exploitation of surrogate mothers, abandonment of children born out of surrogacy, and the import of human embryos and gametes.
There has been widespread condemnation of commercial surrogacy because of these very issues. In 2014, an Australian couple refused to accept one of their biological twins born through surrogacy because of the gender of the child. Many poor women in India took to becoming surrogate mothers repeatedly despite grave implications to their health. Despite this, commercial surrogacy was upheld by the Supreme Court judgment in the case of Baby Manaji v Union of India. Similarly, in the case of Jan Balaz v Anand Municipality, the Gujarat High Court (HC) reiterated the apex court judgment upholding commercial surrogacy. The HC said commercial surrogacy was held to be legal in India as there was no law prohibiting womb-lending or surrogacy agreements.
In its 228th report presented in 2009, the Law Commission of India recommended that surrogacy be regulated through a suitable legislation. The Law Commission recommended the only altruistic surrogacy be legalised and commercial surrogacy be totally banned.
The Surrogacy (Regulation) Bill, 2019, was passed by the Lok Sabha on August 5. The Rajya Sabha, in its meeting held on November 21, 2019, adopted a motion to refer the bill to a Select Committee.
The committee studied the best practices in surrogacy globally keeping in mind Indian needs. In the United States and Argentina, surrogacy requests are decided by independent surrogacy committees. In the United Kingdom, Netherlands, Ireland, Denmark, Belgium, South Africa, Australia, Canada and Greece, only altruistic surrogacy is allowed. Commercial surrogacy is legally allowed in countries like Russia, Ukraine, and Thailand. In France, Germany, Spain, Sweden, Italy and Iceland, surrogacy is banned in all forms.
The Surrogacy (Regulation) Bill is an ethical, moral and social legislation as it protects the exploitation of the surrogate mother and protects the rights of the child born through surrogacy. It seeks to constitute a national surrogacy board, state surrogacy boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy.
To begin with, the couple seeking surrogacy will have to provide compelling condition for wanting a child through surrogacy. They have to be Indians, but can also be non-resident Indians, persons of Indian origin or overseas citizen of India. The surrogate needs to be married and have her child as some procedures of surrogacy may lead to infertility. Single women cannot opt to have a child through surrogacy, but exceptions have been made for widows and divorced women if they obtain a certificate of recommendations from the National Surrogacy Board. An insurance coverage for 16 months is proposed for the surrogate mother to take care of all her medical needs in the case of emergency conditions/complications. Surrogacy clinics cannot undertake surrogacy-related procedures unless they are registered with the appropriate authority.
Surrogacy is a blessing for many childless couples. The bill tries to ensure that while childless couples get what they want, nobody, including the surrogate mother and the children born out of surrogacy, suffer.
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