Evolution of Laws Regulating Commercial Surrogacy in India

Introduction:

Surrogacy is an assisted reproductive technique (ART) whereby the intended parent/parents (childless couples/individuals) enter into an agreement with the surrogate mother who agrees to carry their baby in her womb until birth.

In this technique, the egg and sperm of intended parents/donor are fertilized through IVF (in vitro fertilization) or artificial insemination techniques and then the embryo is implanted in the gestational carrier i.e. the surrogate mother, who ultimately bears the child of intended parents for nine months.

Intended parent includes those individuals or couples who are either infertile or unable to conceive their biological child due to certain medical issues.

Intended parents includes –

1. Single men (either homosexual or heterosexual) who wants a child
2. Single women (either homosexual or heterosexual) who wish to have a child
3. Heterosexual couples who are unable to conceive due to infertility, impotency or inability of a female parent to carry a child due to certain medical condition, disease or health issues.
4. Same-sex (homosexual) male couples who want to have a child
5. Same-sex (homosexual) female couples who are unable to carry a child due to health complexities or otherwise
6. Transgenders who desire to have a child
7. Widow/widower or divorced male/female who desires to have a child

Types of Surrogacy

On the Basis of Genetic Origin of Egg –

Traditional Surrogacy – In traditional surrogacy, the surrogate mother is artificially inseminated with the sperm of intended father/donor through the process called Intrauterine Insemination (IUI). In this arrangement, the surrogate acts as both – the egg donor as well as the carrier. Traditional surrogacy is also known as genetic surrogacy as in this process the surrogate is the actual biological mother of the child she carries.

Gestational Surrogacy – In the process of gestational surrogacy, the intended mother’s (or donor’s) egg fertilized with intended father’s (donor’s) sperm through the process of in vitro fertilization or IVF. Thereafter, the fertilized embryo is implanted into the uterus of gestational surrogate. Thus, the entire fertilization process is conducted outside surrogate’s body and since the surrogate only acts as a gestational carrier, there is no biological link between the surrogate and the baby.

On the Basis of Selection of Surrogate Mother/type of Surrogacy Agreement –

Altruistic Surrogacy – Altruistic or ethical surrogacy is an arrangement whereby the surrogate mother selflessly agrees to gestate the child of commissioning parents without any compensation or monetary benefits in return for her services. Therefore, in altruistic surrogacy, the surrogate voluntarily offers her womb for ethical altruistic reasons.

Commercial Surrogacy – Commercial surrogacy or compensated surrogacy is a binding contractual agreement where the surrogate mother is compensated (monetary benefits) for bearing the child of intended parent/parents in her womb. Thus, the surrogate apart from being paid for her gestational services gets reimbursement for all the medical as well as surrogacy-related expenses during her pregnancy.

India as a Surrogacy Hub

Though the government of India legalized commercial surrogacy in India in 2002, still there were no definite guidelines (except for ICMR) or specific binding legislation regarding its regulations.

Thus, in the absence of strict regulation, low medical expenses for surrogacy treatment, high success rates and easy availability of surrogates due to poverty and lack of awareness, India eventually emerged as a “surrogacy hub” or the “global surrogacy capital” for both for the Indian as well as foreign childless couples.

Prior to the prohibition on commercial surrogacy for foreign citizens, the medical tourism in India was overwhelming and the commercial surrogacy industry was estimated to be worth $400 million per year. But eventually, when the demand for Indian surrogates flooded, the practice of exploiting surrogates in order to meet the demand also increased.

Along with the surrogate mother, the surrogate child also faced several complexities due to contravening and differentiating surrogacy laws in different nations.

Issues faced by the surrogate child due to transnational commercial surrogacy arrangements –

• Legitimacy
• Rights of surrogate child
• Nationality
• citizenship
• Parenthood
• Inheritance and succession
• Financial support – if abandoned due to any abnormality

In such a miserable condition, the government of India realized an urgent need to legislate comprehensive surrogacy laws to safeguard the rights of all the parties to the surrogacy agreement.

Statutory Mechanism of Commercial Surrogacy in India (Regulations)

Before 2002, the surrogacy procedures in India were completely unregulated as there were no specific statutory mechanism or precedents governing the arrangement of surrogacy except for the basic contract between the surrogate and the commissioning parents. Eventually, in 2002, the government of India addressed the issue relating to commercial surrogacy and legalized it.

1. ICMR Guidelines [2005]

In 2005, the Indian council of medical research (ICMR) introduced certain guidelines[1] regarding the regulation of commercial surrogacy arrangements and conduct of the ART[2] clinics offering surrogacy in India. The key guidelines are as follows –

1. The surrogate mother will not be allowed to donate her own egg for the surrogacy procedure.
2. The surrogate mother will be entitled to financial reward or monetary compensation in return for her gestation services. The amount of such compensation will be decided by the surrogate and the commissioning parent/parents mutually.
3. After the birth of the child, the surrogate mother must relinquish all her parental rights attached to the child.

2. The 228^th Law Commission’s Report on Commercial Surrogacy[3] [2009]

• The law commission of India, in its report no. 228 (titled “need for legislation to regulate assisted reproductive technology clinics and rights and obligations of parties to surrogacy”) submitted on August 5^th, 2009, recommended the legalization of altruistic surrogacy and complete prohibition (ban) on commercial surrogacy arrangements.

• The primary objective of the report was to protect the surrogates from being exploited during and after the surrogacy process as well as safeguarding the rights of the surrogate child.

• The commission proposed to formulate comprehensive laws for surrogacy arrangements in India which clearly addresses – the rights and obligations of the parties involved in the process (including surrogate, commissioning parents and the agents/IVR clinics) along with penal provisions in case of default.

• As per the report, the surrogacy contract should provide for life insurance cover for the surrogate mother.

• The report also proposed that the surrogacy legislation should be framed in such a way as to provide adequate financial support to the surrogate child in case of death of the intended parent(s) before the delivery of the child, a divorce between the commissioning parents or abandonment of the child.

• Recommendations such as the prohibition on sex-selective surrogacy and protection of the right to privacy of donor as well as the surrogate were also added in the report.

Landmark precedents of supreme court concerning commercial surrogacy

1. Baby Manji Yamada v. Union of India & Anr

In 2008, the apex court of India, for the first time formally legalized commercial surrogacy in its landmark judgement in Baby Manji Yamada v. Union of India & Anr[4]. In this case, a Japanese couple came to India and entered into a commercial surrogacy agreement with an Indian surrogate in Anand, Gujrat. Few months before the birth of the child, the intended parents got divorced. When the father, in order to take the child back to japan applied for his passport, multiple irregularities and complications surfaced as to the status of the child. The passport application of newborn got denied.

Since the Japan civil code only recognizes birth mother as the legal mother and the fact that surrogacy was banned in Japan several questions as to the legitimacy, nationality, citizenship and parentage of the surrogate child arose.

Finally, the supreme court allowed the child to return with his grandmother but this case highlighted serious concerns regarding lack of statutory machinery regulating commercial surrogacy in India and inconsistency between the surrogacy laws of two different nations which have affected no one but a child who caught between the legal systems of two nations and left parentless and stateless.

2. Jan Balaz v. Anand Municipality and Ors.[5]

In 2010, the court faced a similar issue of inconsistent surrogacy laws between two different countries. In this case, a German couple came to India to avail commercial surrogacy services and when the children (twins, named – Nicolas and Leonard) were born, the German government denied the citizenship to the newborns as surrogacy was not recognized in Germany.

The Gujrat high court held that – the birth certificate of the surrogate child will carry the name of surrogate mother instead of a biological mother and the child would be granted Indian passport which certifies him as an Indian citizen. Also, the surrogate mother, in turn, had to give away the twins to the intended parents (German couple) in adoption.

Later on, the apex court denied the passport but approved the exit permit to the children and the government of Germany also accepted their passports on humanitarian grounds.

3. Prohibition on Surrogacy for Foreign Nationals [2015]

The government of India on November 4^th, 2015, through a notification, completely banned[6] the commercial surrogacy arrangements for foreign citizens in India. The government considered this action necessary in order to prevent the issue of inconsistent surrogacy laws of two different countries during transnational commercial surrogacy agreement as well as to protect the surrogate child.

4. Surrogacy (Regulation) Bill, 2016 [Ban on Commercial Surrogacy]

The minister of health and family welfare introduced the surrogacy (regulation) bill, 2016 in Lok Sabha with the primary vision of safeguarding the rights of the surrogate mother as well as a child against exploitation. The bill proposed the promotion of ethical altruistic surrogacy and a complete prohibition on commercial surrogacy arrangements. Therefore, according to the bill, childless Indian couples can avail surrogacy treatment however, the surrogate mother will not be allowed to get any monetary benefits in return of her gestation services. Only the insurance expenses and medical expenses will be borne by the intended parents.

Timeline of events

• Introduced in Lok Sabha                                             November 21, 2016              
• Referred to standing committee                                  January 12, 2017
• Report of standing committee                                     August 10, 2017
• Passed in Lok Sabha                                                    December 19, 2018

Key features of the bill are as follows –

1. Ethical Altruistic surrogacy – Prevention of commercial surrogacy and promotion of altruistic surrogacy.
2. Infertility – The intended parents must be the citizen of India and shall be married for at least five years. The intended couple[7] should suffer from infertility due to which they are unable to conceive their own biological child. The bill defines infertility[8] as the inability of the couple to conceive after five years unprotected coitus or other proven medical condition preventing a couple from conception.
3. Close relative – The surrogate mother[9] should be the “close relative” of the commissioning parents. However, the bill doesn’t define the definition or ambit of a close relative.
4. No monetary benefits – The surrogate mother will not be entitled to any compensation (except for medical and insurance[10] expenses) for bearing the child of intended parents.
5. Establishment of appropriate authorities – The bill also provided for the establishment of national surrogacy board[11] (central) and state surrogacy board (state) as well as the appointment of appropriate authorities in order to grant eligibility certificate and essentiality certificate to the intended couples as well as the surrogate. There, authorities will also regulate surrogacy clinics.
6. Banning foreign nationals – Foreign citizens and non-residents Indians are prohibited from seeking surrogacy services in India.
7. Prohibiting homosexual/single-parent/live-in partners – Homosexual couples/individuals, single parent (either heterosexual or homosexual) and live-in partners are not allowed to have children through surrogacy.
8. Punishment in case of default – undertaking commercial surrogacy[12], advertising it or exploiting the surrogate will be considered as a punishable offence with imprisonment which may extend to ten years (in case of the subsequent effort of performing commercial surrogacy) and fine up to ten lakhs.

Criticism of the surrogacy regulation bill, 2016

1. The surrogacy (regulation) bill, 2016 was severely criticized for consisting several discriminatory and retrogressive provisions including disqualification of an individual’s right to parenthood on the basis of – marital status, sexual orientation, age etc. therefore, it is against the fundamental right to equality enshrined in the constitution of India.
2. The time-limit for establishing the infertility of the intended couple in the bill was also vaguely long and against the definition of world health organization.
3. The provision that only a close relative of commissioning parents can act as a surrogate narrowed down the chances of childless couples to become parents.

5. Surrogacy (regulation) bill, 2019

Due to severe criticism regarding flawed legislation in the surrogacy (regulation) act, 2016, the ministry of health and family welfare proposed an amended surrogacy bill in the Lok Sabha on July 15th, 2019. The Indian health ministry quoted this bill as “the need of an hour” by citing a rough estimate of 2000-3000 unregulated surrogacy clinics currently (in 2019) operating in India. The upper house (Rajya Sabha) in its meeting held on November 21, 2019, adopted a motion to refer the bill to the select committee to recommend certain changes in the bill.

Timeline of events

• Introduced in Lok Sabha                                             July 15, 2019              
• Referred to standing committee                                  August 5, 2019
• Report of standing committee                                     November 21, 2019
• Passed in Lok Sabha                                                    February 5, 2020

Salient Features of surrogacy (regulation) bill, 2019

1. Surrogacy – The bill defines “surrogacy”[13] as a practice whereby the surrogate mother bears/carries a child for intended parents with an intention of handing over such child to the commission parents after his birth.
2. Eligibility criteria for intended parents
3. Intended parents should be an Indian couple who are legally married
4. The intended couple should be infertile after five years of marriage or have the medical condition due to which they are unable to conceive
5. Age criteria – 23-50 (female) & 26-55 (male)
6. The couple must obtain the certificate of eligibility and certificate of essentiality issued by the appropriate authority
7. Eligibility criteria for surrogate mother
8. The surrogate mother must be a close relative of intended couple
9. Surrogate needs to be married women having a child of her own
10. Age criteria – between 25-35
11. Surrogate must obtain the certificate of mental and physical fitness from an appropriate authority
12. A woman can act as a surrogate only once
13. Rights of surrogate child
14. The child born out of surrogacy would be considered as the biological child of intended parents
15. He shall be entitled to all rights and privileges available to a natural/biological child.
16. Offences and penalties
17. Undertaking or providing commercial surrogacy services[14]
18. publication or advertisement of commercial surrogacy services[15]
19. abandonment or disownment of the child born through surrogacy[16]
20. the exploitation of surrogate mother or child in any form[17]
21. sell, purchase or trading of human embryo or gametes for the[18] purpose of surrogacy or to run a racket
22.  import of human embryo or gametes for the purpose of [19]surrogacy
23. Conducting sex-selection of the surrogate child[20]

All of the above offences shall be punishable with imprisonment which may extend to ten years and fine which may extend to 10 lakh rupees.

Surrogacy (regulation) bill, 2020 [including changes made by the select committee in the old bill]

The Rajya Sabha select committee (consisting of 23 members) suggested 15 major changes in the surrogacy (regulation) bill, 2019 and passed the surrogacy (regulation) bill, 2020. Some of the alterations made by the select committee are as follows – 

1. The committee replaced the definition of “infertility” in the bill, 2019 from – inability to conceive a child after five years of marriage to one year (as also recommended by WHO ) on the ground that five years was a  very long time for a couple to wait for a child knowing that they are infertile or unable to conceive due to their medical condition.
2. The committee also widened the ambit of the word “surrogate mother” by allowing “any willing women” to be the surrogate mother instead of only close relatives.
3. Commercial surrogacy arrangements including sale and purchase of human embryo and gametes will still be prohibited.
4. The insurance cover provided to surrogate mother will be increased from 16 months to 36 months.
5. The committee also widened the scope of the word “intended parent/parents” by including single women (widow as well as a divorcee) of Indian origin and non-resident Indians apart from married Indian couples.

Global Surrogacy Laws

In the United Kingdom, Greece, Australia, Canada, Denmark and South Africa, commercial surrogacy is prohibited, only altruistic surrogacy arrangements are permissible.

In nations such as Thailand, Russia and Ukraine, commercial surrogacy arrangements are well recognized and completely legal.

Further, in the countries such as Italy, Sweden, France, Iceland, Germany, all forms of surrogacy whether commercial or altruistic, are illegal and banned.

Conclusion

Surrogacy has always been a long-debated issue in India. The ethicality and legal complexities of renting a womb have been a matter of concern from decades. The government of India has come a long way in legislating protective measures to curtail the exploitative practices of “baby outsourcing” and to ensure the safety of the surrogate as well child. The only concern left with the existing legislations was that inspite of various progressive judgements of the Supreme court regarding homosexuality as well as the status of live-in relationships, the homosexual community and live-in partners are still disqualified from the ambit of becoming a parent through surrogacy. Therefore, in order to preserve the faith of citizens in the constitution as well as the governance, it is extremely significant to address and resolve the prevailing discrimination on the basis of sexual preferences and marital status.

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References:

• surrogate.com
• www.researchgate.in
• The constitution of India
• Surrogacy (regulation) bill, 2016
• Surrogacy (regulation) bill, 2019
• mnupatra.in

[1] National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, Indian Council of Medical Research, 2005

[2] Assisted reproductive technology

[3] Law commission of India – report no. 228 of 2009

[4] (2008) 13 SCC 518.

[5] AIR 2010 Guj 21.

[6]  Instructions regarding commissioning of surrogacy, Ministry of Health and Family Welfare, November 4, 2015

[7] Section 2(r) of the surrogacy (regulation), 2016

[8] Section 2(p) of the surrogacy (regulation), 2016

[9] Section 2(ze) of the surrogacy (regulation), 2016

[10] Section 2(q) of the surrogacy (regulation), 2016

[11] Section 14 of the surrogacy (regulation), 2016

[12] Section 37 of the surrogacy (regulation), 2016

[13] Section 2(ze) of the surrogacy (regulation) act, 2019

[14] Section 35(1)a of the surrogacy (regulation) act, 2019

[15] Section 35(1)b of the surrogacy (regulation) act, 2019

[16] Section 35(1)c of the surrogacy (regulation) act, 2019

[17] Section 35(1)d of the surrogacy (regulation) act, 2019

[18] Section 35(1)e of the surrogacy (regulation) act, 2019

[19] Section 35(1)f of the surrogacy (regulation) act, 2019

[20] Section 35(1)g of the surrogacy (regulation) act, 2019