SURROGACY LAWS IN INDIA

In simple language surrogacy can be defined as – when a couple wants a baby and they are not able to conceive a baby due to medical issue then other women carries the artificial sperm of the father. Then that lady carries the child in her womb and then gives birth to the child to that couple. Then that woman is a biological mother of that child. The couple who are not able to conceive a baby and do not want to adopt a baby so they they go for the baby with the help of surrogacy. Surrogacy is when a lady other then the wife gives birth to a baby for a couple who want to have a child. There are two kinds of surrogacy –straight or traditional and host (or gestational surrogacy).

Straight surrogacy is the simplest form of surrogacy .it is least expensive form of surrogacy and is also known as artificial insemination. In this form of surrogacy the surrogate uses the insemination kit to become pregnant using intended father’s semen. The baby who will be conceived will be by using the surrogate’s egg. Host is the type of surrogacy in which ivf is used, either with eggs of the intended mother or with the donor eggs. Then the surrogate does not use her own eggs and is genetically unrelated to the baby. This type of surrogacy is very expensive and is very complicated as compared to the straight (traditional) surrogacy. Host surrogacy always takes place in the fertility clinic. There are main three stages in host surrogacy i.e., egg donation, fertilisation, and transfer.

Surrogacy is now a day’s very trendy in our bollywood. Celebrity who is single parent. For example –recently Karan johar has become a proud single parent of a set of twin i.e. A boy and a girl .the last Indian celebrity who went through surrogacy was tusshar kapoor , who also had son last year in June . There were many other celebrity who had their babies through surrogacy such as shah rukh khan and gauri khan, aamir khan and kiran rao khan, sohail khan and sachdeva khan, tusshar kapoor have all turned to surrogacy to expand their families .

Surrogacy is an agreement between a surrogate mother and intended parents to carry a baby in her womb and to five births a child to another woman. The agreement which is made can be unasked volitional .it can also be paid or unpaid according to the people between whom the agreement is made .India has legalised all type of surrogacy since 2002 .India is also considered as the hub of surrogacy .India as an international surrogacy hub as the surrogacy contracts between the parties and assisted reproductive techniques clinics are the guiding force in India .international surrogacy law in India has come in India through the case bay manji yamada surrogacy case . As a result surrogacy business is well established in India .many doctors are earning a lot in surrogacy with the estimation of annual turnover of billion dollars .recently ,there was a surrogacy (regulation) bill 2016 , was popularised by health and family welfare in lok sabha and which adduce to ban commercial surrogacy in India which was legalised in 2003.

The bill which is proposed in 2016 focuses mainly on the prevention of commercial surrogacy and also to get mileage of surrogate mothers and a child born through surrogacy. The bill focuses on the main points are as follows.

• Embargo on commercial surrogacy – the bill which was passed also told that government has told Supreme Court to ban commercial surrogacy. The bill tells that in India Supreme Court has decided to block foreigners, people of Indian origin, homosexual and single parent from having children through surrogacy. Foreign minister sushma swaraj , also made an announcement at a press conference “we do not recognise live –in relationship and homosexual relationship ….this is against our ethos”

– She also told that only the couple who are infertile and who are married for at least 5 years can only seek a surrogate and must also be a close relative.

– According to sushma swaraj, close relative included a sister or sister in law or daughter in law. Single women would also not be allowed to become a surrogate mother. She also taunted to our bollywood celebrity such as Shah Rukh Khan, Karan johar etc. She told that it has become a culture among the celebrities for getting children through surrogacy.

– There are many plans of the government to bring the bills that the government wants to bring that woman to act as a surrogate mother only once in her lifetime, that is in winter session of parliament. The law is also planning to fix the age limit of the male as well as the female i.e. Male between 26-55 years and female between 23-50 years.

– There are many people who gave their views on their bill of 2016 , advocate anurag chawla of Delhi based surrogacy laws described the law as “too tough “, it will become very tough for those women who are trying to improve their financial condition through surrogacy or renting a womb. Commercial surrogacy is banned in many countries such as UK, Canada, and France it has detonated in India over the past 10 years with many couples, especially foreigners, flocking to the country, partly because its doctors and clinics bring the service at the relatively low cost.

– The bill which is drafted makes it imperious for all the surrogacy clinics to register with the government. The clinics which will be registered will face jail term of 5 years and a fine of Rs. 10, 00,000.

• Close relative – the bill mainly talks about the close relative of the couple to act as the surrogate mother. There are many couples whose close relative do not want to become the surrogate so it does not mean that they can’t have a baby. And if the close relative act as the surrogate then it is very obvious that both the surrogate mother and a child will also know about the fact of surrogacy. It may also cause many family problems in the later stage between the surrogate child and the surrogate mother.

• Restrictions for international surrogacy – procreative tourism are developed due to globalization and liberalisation. Procreative surrogacy is a process in which people go abroad for reproductive technology services and can also have a child with the process which they want. It is also less expensive, more efficient and wide range of services are also available , so these all region because of which procreative tourism is developed so the government is trying to restrict the international surrogacy

• Waiting period of 5 years – surrogacy was mainly opted by the couple when they are not able to conceive a child as they have tried many times so it is not necessary to wait for 5 years for availing the surrogacy service.

• Maternity relief – it is one of the issue on which the government should talk about. And this issue of maternity relief for intended couples as well as the surrogate mother has already been discussed in different high courts in India. But, the bill is silent about this issue.

• Designer baby – this is also one of the issue on which the Supreme Court should talk. This type of baby means that it is one of the criticism against the surrogacy is that surrogacy may also be used to produce children of desired sex and with desired characteristics i.e. It may also be used for the creation of designer baby. However the bill is silent on this issue also.

• Rights of the intended couples – there are certain rights which the intended couple have. They are as follows-

– They have full right to choose the surrogate mother whichever they want,

– They also have the right to impose certain restrictions on that surrogate mother for the development of the child ,
– They also have the right to have the information about the surrogate mother and also meeting that lady at the time of surrogacy.
– The couple also have the right to take the custody of the child within 72hrs. Of the birth.

CONCLUSION-
The bill i.e. the surrogacy (regulation) bill 2016 which is passed to establish the regulatory framework of good surrogacy practice in India. The bill also wants to impose restrictions on the foreign people who come here i.e. In India to give a birth to a child through surrogacy. So the main aim of the bill which is passed in 2016 is to ban commercial surrogacy. There are many advantages as well as the disadvantages of this bill. The main disadvantage is that there are many women whose financial condition will also get affected.

Compiled by:

SHIRALEE KINARIWALA
B.A.LL.B
INDORE INSTITUTE OF LAW