Introduction
Types of Surrogacy
The coming of Assisted reproductive technology (ART) has brought increased freedom and opportunity for some people, making parenthood possible for infertile couples, single men and women, and gay and lesbian couples through artificial insemination, surrogacy, or IVF.
Surrogacy is a type of modern ART technique and can anywhere can be of various subtypes. The first can be the traditional surrogacy. In this, the egg of the mother needed for conceiving a baby Is itself substituted for the intended mother with that of a surrogate mother and thus allowed to be conceived with the intended father.
Another type is that of gestational surrogacy. In this type, the surrogate mother bears the baby in her womb for the period of gestation and delivers the baby on maturity.
Commercial surrogacy is a form of surrogacy in which has become prevalent and raises a number of concerns. In this, the donor woman is paid for her service which can be in the form of a gestational carrier. That is why it is many times referred to as a womb of rent.
Laws Related to Surrogacy in India
The majority of countries like Australia, China, the Czech Republic, Denmark, France, Germany, Italy, Mexico, Spain, Switzerland, Taiwan, Turkey, and some parts of the U.S. have banned surrogacy in totality. Some others have like Brazil, Israel, United Kingdom, etc imposed partial bans on the practice. However, in India, the law is quite obscure.
No specific laws regulate surrogacy in India, but the Ministry of Health and Family Welfare has established a set of guidelines. Policies and contracts vary from clinic to clinic and range from corporate five-star hospitals to much smaller practice like private clinics.
The fee for surrogacy in India is not fixed, but the costs are significantly less than Western countries hence making it a preferable destination for intending couples.
As of now the Indian Contract Act, 1872 governs the contract between the surrogate mother and the intended parents.
As back as 2008, the Supreme Court of India in the case of Baby Manji Yamada v. Union of India[2] stressed the need for legislation on the same and came up with the observation that at that time commercial surrogacy is permissible due to lack of any law prohibiting the same. In pursuance to this, the Law Commission of India in 2009 submitted the 228th report on Assisted Reproductive Technology procedures and observed the need for legislation to control surrogacy. In lieu of this ICMR revised the guidelines in 2010
Again, the Indian Ministry of Home Affairs issued new guidelines on surrogacy in January 2013. These included a visa requirement for foreign nationals commissioning surrogacy in India, with such visas being restricted to married couples from countries where surrogacy is legal.
However, in the year 2015, the Government of India brought a bill that prohibited commercial surrogacy in India. Only Indian couples married for a minimum of 5 years could resort to surrogacy under this new bill. However, the bill lapsed in Rajya Sabha. In 2019, this bill was reintroduced in Lok Sabha and is still pending the Rajya Sabha for its final fate. Hence, we can say presently there is no applicable law for surrogacy in India.
Ethics Argument
Surrogacy workers, feminists, or medical clinics may understand surrogacy in different cultures.
Economic desperation of a surrogate mother who is a willing worker is usually exploited. The surrogate is expected to be a disciplined contract worker who will give the baby away immediately after delivery without any resistance.
The surrogacy contract is usually the formal document that lays out the rights of the surrogates, the practices, the remuneration, etc. This document is usually in English, and the surrogate mother hailing from a lower economic background and in the majority of cases hardly literate walk into the contract blindly.
Formal and informal surrogacy brokers are also in the market for finding desperate surrogate mothers.
In India, additionally, the surrogates face a high degree of stigma. As a consequence, almost all the surrogates intend to keep their surrogacy a secret from their community.
Some scholars, also argue that these new technologies exploit women by reinforcing traditional patriarchal roles and objectifying women’s reproductive potential.
The implications of surrogacy among women who live in “surrogacy hostels,” where they remain separated from their families and communities throughout the course of their pregnancies is much worse. A detailed regulation of the surrogates’ private time allows prolonged control in a way not possible when there is a separation between home and work.
In the absence of any binding law or contract, individual couples have considerable freedom in deciding the amount and form of remuneration and the terms of the contract.
Most importantly, the surrogate mother forms a strong bond with the baby she has been carrying for so long and it becomes very difficult for her to part ways emotionally.
Conclusion
At a glance, surrogacy seems like an attractive alternative as a poor surrogate mother gets very much needed money, an infertile couple gets their long-desired biologically related baby and the country earns foreign currency, but the real picture reveals the bitter truth. Due to lack of proper legislation, both surrogate mothers and intended parents are somehow exploited and the profit is earned by middlemen and commercial agencies.[3] On the ethical terms also it might not be the most sound method.
References:
[1] In the Matter of Baby M, 217 N.J. Super 313, (1987).
[2] Baby Manji Yamada vs. Union of India and Another (2008), 13 SCC 518.
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