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Source : Law Corner

This article has been authored by Likhita Agrawal, a third-year student at National Law University, Nagpur.


The Hindu mythology on the basis of its jurisprudence emphasizes on fulfilment of three rinas (debts) lifetime by an individual which are Dev rina, Rishi rina, Pitra rina. Pitra rina refers to respecting and continuing one’s genealogy. For continuation of family name and to attain parenthood, reproduction has a very vital place in the society. Science and technology have contributed to this by modern reproduction processes by introduction of concepts like artificial insemination, concept of cryopreservation, In Vitro Fertilization (IVF), surrogacy etc. These methods defeat the incompetency in the name of infertility.

Surrogacy, it is defined as “the process of carrying and delivering a child for another person’s” by the Black’s Law Dictionary.. India has witnessed the second IVF in the world, the baby born of which was named Kanupriya who was born in Kolkata in 1978. And since then, the assisted reproductive technologies have been evolving in India. Surrogacy is a sensitive issue as it has involvement of three parties- the surrogate mother, the child, and the actual parents and is coupled with different intricacies.

Understanding the Judicial Approach in India

The notion of surrogacy had its first legal predicament in the In re Baby M case. In this matter, on the birth of the child, a surrogate mother denied giving the child to the actual parents. And after a long legal dispute, it was decided in the favour of the intended parents and thus they were given the custody of the child. The mentioned case introduced many legal technicalities in the initial place.

Commercial surrogacy was legalized in India in 2002 by the Guidelines issued by the Indian Council of Medical Research (ICMR),though it did not have any legislative support. The Supreme Court of India had made the commercial surrogacy legitimate in the case of Baby Manaji Yamanda v. Union of India. The Court elucidated the different types of surrogacy, which are “traditional surrogacy, gestational surrogacy, altruistic surrogacy, and commercial surrogacy”. Further, it also helped in improving India’s image in the international forefront and made attracted international attention to its reproductive market.

In Jan Balaz v. Anand Municipality and Ors., the Court focused on the importance of surrogacy agreement and added that the main objective of a surrogacy agreement is to safeguard the custody of the surrogate child with the intending couple, the surrogate child would receive the inheritance from his intending parent in similar manner as that of a biological child, in return of a fixed amount of consideration.

Later, due to excessive exploitation in the practice, commercialization aspect was thought to be eliminated. The New Jersey Supreme Court in In Re Baby M case of New Jersey, held that the commercial element in the surrogacy agreement in a way amounts to “the sale of a child,” and leads to infringement of public policy.

Thus, India contemplated the problem and was of the same view. Thus, The Surrogacy (Regulation) Bill, 2016 was introduced in the Parliament in 2016, however it lapsed in the Lok Sabha due to a flawed framework. Ultimately, The Surrogacy (Regulation) Bill, 2020 (“Bill”) was brought. Despite India’s strides in becoming a hub for surrogacy and promotion of the same. The Bill imposes a blanket ban on commercial surrogacy and limits altruistic surrogacy. Further it also proves to be highly discriminatory and prohibits surrogacy by any overseas, foreigners, unmarried couples, single parents, live-in partners, or gay couples from performing surrogacy.

Highlights of the Bill

The Bill defines many important terminologies such as Altruistic Surrogacy which means Surrogacy with “no charge or fees or expenses”, commercial surrogacy which means “surrogacy by way of giving payment, reward, benefit, fees” and also defines the term intending woman as “an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy.”

The Bill also sheds light on the complexity in defining who would be the parent of the child and who would have the final say in questions of abortion. It establishes that in such procedures the child born would be the “biological child” of the intending parents. Further, the Bill also mandates that for an abortion the written permission of the surrogate mother and the permission of the appropriate authority must be taken and this authorization must be in accordance with the Medical Termination of Pregnancy Act, 1971. It also provides the right to the surrogate mother to withdraw from the procedure before the attachment of the embryo in her uterus.

The Second Part of the Bill elaborates on the eligibility criteria for intending couples which include “certificate of essentiality” and a “certificate of eligibility” given by the appropriate authority.

A certificate of essentiality shall be issued on fulfilment of the below mentioned conditions:

1. a certificate of a medical indication in favour of either or both members of the intending couple or intending woman for gestational surrogacy from a District Medical Board.

2. An order of parentage and custody of the surrogate child passed by a Magistrate’s court.

The Bill also deals with the registration of surrogacy clinics by the appropriate authority in order to administer surrogacy or its related procedures within a period of 60 days from the date of appointment of the appropriate authority. It also mandates the registration of certificates which would have a validity of 3 years. Further the Bill also provides the “appropriate authority” the right to cancel or suspend any certificate of registration in case of any infringement of the provisions of the Bill. It also provides for appeals against orders such as rejection or cancellation of certificates, registrations, and applications passed by the appropriate authority to the State and Central Government.

The Bill mentions about the National and State Surrogacy Board. The Bill mentions the functions of the Board. Their functions include giving recommendations to the Central Government on policy matters pertaining to surrogacy, to scrutinize and monitor the implementation of the Act, respective Rules and Regulations and suggest the Central Government to make relevant alterations and modifications, to prescribe the code of conduct which is to be observed by persons working and employees at surrogacy clinics, to set the minimum standards regarding the physical infrastructure, laboratory and diagnostic equipment and expert manpower which are to be employed by the surrogacy clinics. Other than these, it also performs the functions regarding checking and inspecting the performance of the different bodies instituted under the Act to the undertake the suitable and appropriate steps to ensure the effective performance of these bodies and such other functions as may be prescribed.

Drawbacks in the Bill

The Supreme Court has acknowledged the right to reproduction as a significant constituent of ‘right to life’ which has been enshrined under Article 21 of the Constitution in the case of Devika Biswas v. Union of India. The term reproductive rights in regards to women have broader interpretation, as it encompasses the right of carrying a baby during the gestation period, becoming a part of miracle of begetting the child, nurturing the children.

The imposition of limitation pertaining to surrogacy only to a man and woman as a couple that is only to a heterosexual couple is infringement of right to reproduction that certainly violates right to life for the older parents, single parents, LGBT community. Furthermore, it also violates the right to equality granted under Article 14 of the Constitution, as it discriminates these groups of people and the Apex Court ruling in the case of Navtej Singh Johar v. Union of India. Equal treatment should be seem to be done. Surrogacy is an important contemporary issue and such discrimination is not fair and just. It should be tried to avoid such gap and loophole, in the legal framework of the concerned matter. The focus of the surrogacy agreement should be the health and welfare of the child involved.

Thus, two important fundamental rights are infringed by the 2020 Bill. Hence, the Bill should be reviewed again to eliminate these probable shortcomings.

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