Surrogate Mothers In India – by Varun Pandey *

Contrary to the natural laws, surrogacy involves another woman who is willing to carry the child of a couple who are unable to have a child of their own. It is a bona-fide contract between the couple and the surrogate mother. This practice, although popular all over the world has had a mixed response by the Indian society, whereas a majority of people have hailed surrogacy and have supported the cause, yet a large number of people have protested against it. The fact that the surrogate mother is paid to carry a child[1] has been the controversial issue as some term it “baby-selling”[2]

The issue of surrogacy and its legality was first highlighted in the case of Baby Manji Yamada vs Union Of India & Anr[3] wherein a surrogate mother gave birth to Baby “M” using a Japanese man’s sperm and the egg from an unknown donor, this lead to a question on the baby’s nationality as the biological parents of Baby “M” were Japanese.[4]

Another case which lead to a widespread debate on surrogacy was Jan Balaz v Union of India[5] where the Gujarat High Court conferred Indian citizenship on two twin babies born of surrogacy.

Although, surrogacy became the hot topic for the Indian citizens after these cases were publicized and highlighted by the media, it was not an alien concept for the foreign internationals who always saw India as a growing market for surrogacy and which is now more than  $2.3 billion industry.

However, even though this arrangement may seem beneficial for the parties concerned as the childless parents are blessed with a progeny and the surrogate mother earns in foreign currency, the real picture reveals a bitter truth.

Surrogacy charges in US, UK and Australia cost around $55,000 to $60,000 whereas in India, the expenses of a surrogate mother can be obtained for a meagre amount. India has more than 200,000 fertility clinics operating throughout the country and up until last year, there was no law or provision to look after the working of these clinics and about surrogacy. A major pre-requisite for a child to be born through surrogacy is that the surrogate mothers should receive proper healthcare, nutrition and prosperity through surrogacy agreements; however, these are rarely adopted or mentioned in the surrogacy contracts. The Indian Council for Medical Research gave certain guidelines regulating the Assisted Reproductive Technology procedures. The 228th Law commission while focusing solely on the matter of surrogate mothers and surrogacy in India specifically mentioned in its report that the rights of the mother as well as the donor shall be protected wholly. Furthermore, it also says that a surrogacy contract should necessarily take care of life insurance of the surrogate mother.

An insight into the enforcement of these regulations paints a different picture, it has been learned from various cases throughout the years that the actual condition of surrogate mothers is pitiful, underground surrogacy rackets were discovered soon after the fertility industry boomed in India. Large amount of foreigners employed the services of these women without paying any heed to the rules and regulations prescribed. Moreover, poor living conditions, malnourishment and impoverishment of these women revealed the dark side of surrogacy in India. In 2006, a surrogate mother died due to lack of medical attention and malnutrition. And in 2012, an 8 month pregnant surrogate woman died due to unexplained complications but she delivered the baby[6]. Instances like these showcased the much needed requirement of a statute which could govern the procedures regarding surrogacy in India. The Assistant Reproductive Technology Bill, 2013 was presented in the parliament to fight such discrepancies.

On 24th August, 2015 The Surrogacy (Regulation) Bill was passed by the Indian Government[7] thus, legalizing altruistic surrogacy all over India and this bill recognized the rights of the surrogate mothers too. The enforcement of the bill promised the protection of surrogate mothers against exploitation, especially in rural and tribal areas, which are the hub of surrogacy rackets[8]

To limit the exploitation of this practice, the bill prohibited homosexuals, live-in couples, single people and married couples who have biological or adopted children from opting for surrogacy. The law commission cited various cases to concretize its judgements, such as Jaycee B. v Superior Court[9], the Baby M[10]case and Baby Manji Yamada v. Union of India[11]. To assess the pragmatical implications which may arise once the bill is passed, a detailed study on surrogacy laws existing in various legal systems around the world was done.

The steps taken by the Indian government regarding surrogacy and its legality are in itself an answer to the prolonged dilemma which is that whether it should be allowed or not. Although, in the name of commonweal a number of women have been exploited by the carelessly implemented pre-requisites of surrogacy, yet, ever since the Assistant Reproductive Technology bill has been passed, the instances of such gravity have witnessed a significant depression as the surrogate mothers are now more protected and the responsibilities of ART clinics have increased manifold. Moreover, proper safety measures are now in place, and the rights of the surrogate mother are protected leaving no room for any kind of injustice to take place.

Therefore, it can be fairly concluded that now, with all the predicaments cleared, duties assigned and customary approvals, surrogacy is the beacon of hope for couples less fortunate than others. The bliss of motherhood should be immaculately bestowed on every hopeful mother who is unable to do so. And to further elucidate on my point, I would like to quote Harriette Hartigan , who said

“Giving birth and being born brings us into the essence of creation, where the human spirit is courageous and bold and the body, a miracle of wisdom.”

 

Reference

*Varun Pandey – University of Petroleum and Energy Studies, Dehradoon.

[1] Bindu Shajan Perdappan, ART Bill may close surrogacy doors for foreigners, unmarried people, HINDU, (10-23-2015 00:00 AM)

[2] Dhananjay Mahapatra, Baby Manji’s case throws up need for law on surrogacy, TOI, (8-25-2008 02:38 AM IST)

http://timesofindia.indiatimes.com/india/Baby-Manjis-case-throws-up-need-for-law-on-surrogacy/articleshow/3400842.cms

[3] [2008] INSC 1656

[4] Supra note 1

[5] AIR 2010 Guj 21

[6] TNN, Surrogate mother dies of complications, TOI, (5-17-2012 03:06 AM IST) http://timesofindia.indiatimes.com/city/ahmedabad/Surrogate-mother-dies-of-complications/articleshow/13181592.cms

[7] Express News Service, New surrogacy Bill bars married couples with kids, NRIs, gays, live-ins, foreigners, INDIAN EXPRESS, (8-25-2016 10:49 AM IST)

New surrogacy Bill bars married couples with kids, NRIs, gays, live-ins, foreigners

[8] Express Web Desk, What is surrogacy? Everything you need to know, INDIAN EXPRESS, (8-25-2016 11:19 AM IST)

What is surrogacy? Everything you need to know

[9] 42 Cal.App.4Th 718 (1996)

[10] 537 A.2d 1227

[11] Supra note 3

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