Surrogacy and women’s right in India

Surrogacy

Surrogacy is defined as the process of giving birth to a baby by a woman (Surrogate Mother) and then hand over that new born to the couple who are unable to conceive one. The concept of Surrogacy has been on the table for quite a long as a result of which, Surrogacy was made commercialized in India in 2002.

A Bill was proposed in the year 2016 namely The Surrogacy (Regulation) Bill which was passed in the December, 2018 in the Lok Sabha. A National Surrogacy board has also been established under this Bill to manage the procedure as well as the laws. It consists of a chairperson and members of parliament which should be women.

It is important to understand some basic terms relating to surrogacy in order to understand the concept more clearly which are discussed as follows-

  • Surrogate- She’s the woman who needs to carry a child until he/she is born and then give the same to the intended parents.
  • Intended Parents- The couple who is unable to conceive a baby due to any biological issue and hires a surrogate woman for this job are known as intended parents.

The basic procedure that is followed in Surrogacy is that the embryo of the intended parent is transferred to the Surrogate mother. The Surrogate mother carries the baby for the next nine months until the baby is born and then it is given to the intended parent.

The Surrogate mother must be in her reproductive age and healthy and the cost of the procedure and growth of the child in the womb of the surrogate mother is to be paid by the intended parents. 

Issues

Various types of surrogacy have been invented as per the social understandings of the people and the Government out of which some are acceptable whereas some are not legitimate and must not be followed.

Traditional Surrogacy is one of the oldest types wherein the embryo was not created outside the body of the surrogate mother rather the intended father’s sperms were transferred directly into the womb of the surrogate. This method had a drawback because there are chances that the surrogate can claim the baby as her own which would create chances of conflict.

Gestational Surrogacy in another kind in which the egg of the intended mother is transferred to the surrogate mother who bears the child for the next months. This method provides ample legal protection to the parents as well as the Surrogate mother.

When the mother agrees to be a surrogate without any compensation being provided to her, it is known as Altruistic Surrogacy. In these cases, the surrogate mother is generally a known close member or friend of the intended parents and hence, the money is not involved.

Challenges

Due to increasing rate of infertility in the world because of mental and psychological stress, there is a need to establish various reproductive methods known as ART (Assisted Reproductive Techniques). Surrogacy is one such method which help the childless parents.

These techniques are still in the developing stage which poses a great challenge because the problem of infertility is increasing at a very fast rate. The technique of In Vitro Fertilization (IVF) that is used in the process of Surrogacy does not have a hundred percent success rate. Also, it does not have a reliable and desirable results which the intended parents want.

The nationality of the child born, where the surrogate mother belongs to another country is also a major issue. In some countries, the child born out of the surrogate mother is not granted the citizenship of the country to which the surrogate mother belongs.

Perspective of the society

Communities have a different view when it comes to the acceptance of Surrogacy in the society. Various religious denominations have a conflicting view because of the procedure that has been followed in this process.

It has been believed by many that the procedure of Surrogacy does not follow the science of purity and it involves a third party. Also, some people find the procedure of adoption very convenient which ultimately reduces the scope of surrogacy. The laws governing rules for adoption are comparatively easier giving an edge to this method.

People find it difficult to abide by the complications that are involved in this process which involves conflicts with the surrogate mother or the dispute on the amount of compensation that has to be given.

While talking about the rights of the women, the surrogate mothers have to face a lot of exploitation when it comes to the child birth. Many rural areas in India still considers the birth of a girl child as a sin and hence, the surrogate mother has to face the consequences of the same. Similarly, if a lunatic or a child with unsound mind is born, the intended parents may refuse to accept that child which creates a problem for both, the child as well as the surrogate mother.

Surrogacy laws abroad

The developed countries have a strict framework of rules which ultimately force the childless couples to visit poor and developing countries. Nepal can be considered as a hub for surrogacy where thousands of couples visit every year to hire surrogate mothers. The reason behind this is first of all it is very cost effective in countries like Nepal and secondly, poverty forces the competent women to participate in this procedure.

In U.S., if the surrogate mother is not having a blood relation with the intended parents, the child is not allowed to have a citizenship of the country. This rule is followed by many countries in order to set a pattern to determine that who genuinely belongs to their nation.

“The views of the authors are personal

Frequently Asked Questions

What is meant by Independent Surrogacy?

A. Independent Surrogacy basically follows the procedure as it is followed in traditional surrogacy. It does not involve any agency and the third party is unknown to the intended parents. This method involves a lot of risk as well as legal consequences because of the fact that there is an absence of a well-qualified and a knowledgeable person in this regard.

How the women’s rights are protected in India in terms of Surrogacy?

A. Several rights protect the women during this process which are as follows-

  • The number of embryo transfers a mother can go through to 3 times for the same couple, if the first two attempts fail
  • No woman should act as a surrogate for more than three live births in her life
  • A relative, a known person as well as a person unknown to the couple may act as a surrogate mother for couple
  • A surrogate should be less than 45 years
  • Before accepting a woman as a possible surrogate for a particular couple, the ART Clinic must ensure that the woman satisfies all the testable criteria to go through a successful full term pregnancy.

What is meant by ART?

A. ART Techniques are used to treat infertility. It includes many other procedures along with surrogacy. ART procedures sometimes use donor eggs, donor sperm, or previously frozen embryos. It may also involve a surrogate or gestational carrier. A surrogate is a woman who becomes pregnant with sperm from the male partner of the couple.

Reference

http://www.legalserviceindia.com/legal/article-782-surrogacy-in-india.html

https://www.conceiveabilities.com/about/blog/the-different-types-of-surrogacy

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3531011/

https://www.theatlantic.com/health/archive/2016/05/dwindling-options-for-surrogacy-abroad/484688/

https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/Assisted-Reproductive-Technology-ART-Surrogacy-Abroad.html

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My name is Aniket Vashisth and I am a student pursuing Bachelor's in Law from Indraprastha University (Maharaja Agrasen Institute of Management Studies). Being a student of law, I have a keen interest in Researching and exploring new ideas from the existing laws and establish a reasonable interpretation. Currently, I am in 3rd year of my 5-year integrated BALLB Program. My future target is to crack Delhi Judicial Services and become an important part of the Indian legal system in order to inculcate my ideas and serve the Nation. I am an active participant in various National Moot Court Competitions organized across the Country every year.