Introduction
Surrogacy is a well-known method of reproduction, whereby a woman agrees to give birth to a child who she will not raise, but hand over to a contracted party. She may be the child’s genetic mother (the more traditional form of surrogacy) or she may be, as a gestational carrier, carry the pregnancy to deliver after having been implanted with an embryo[2].Typically, the surrogate is acting for married couple but is not limited to them and it may include gay and lesbian couples or single men or women[3]. According to the Black’s Law Dictionary[4] , surrogacy means the process of carrying and delivering a child for another person. Till 2016 there was no statutory framework for surrogacy in India which does not make commercial surrogacy illegal[5] Courts in India did not find anything immoral and unethical about obtaining child through surrogacy arrangement.[6]Apex Court has already cleared all the doubts regarding commercial surrogacy and specifically stated that commercial surrogacy is legal in India and surrogacy agreements are governed by Indian Contract Act, 1872.[7] Further, Court as well as Law Commission of India[8] heavily relied on ICMR[9] guidelines which also recognize commercial surrogacy[10].
Surrogacy is a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights subsequent to the child’s birth.”[11]The Supreme Court of India[12] has defined surrogacy as: “a method of reproduction, whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracting party.”
The Supreme Court in the landmark decision of Baby Manji Yamada v. Union of India and Anr.[13] Legalized commercial surrogacy with a direction to the legislature to pass an appropriate law governing surrogacy in India. At present, a surrogacy contract between the parties and Assisted Reproductive Technique (ART) Clinics Guidelines are the only two guiding forces for governing this transaction.
Law Commission of India in its 228th report [14]
- Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
- Surrogacy arrangement will continue to be governed by contract amongst parties. Such a contract will contain all the terms requiring the consent of surrogate mother to bear the child, agreement of her husband and other family members for the same, medical procedures for artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parents etc. However, such an agreement will not be for commercial purposes.
- The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
Surrogacy Act 2016 which prohibits the commercial surrogacy
It’s always unethical to do business on a woman’s womb or reproductive capacities. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms “wombs for rent”, “outsourced pregnancies” or “baby farms.”[15] The country that is becoming a hub of fertility tourism cannot afford to put the interests of children as well as surrogate mother at risk[16] There have been instances where the contracting individual has specified the sex of the baby as well, refused to take the baby if it is not normal, and filed a suit against the surrogate saying she had broken the contract[17] A contract which is made upon an immoral consideration or for an immoral purpose is unenforceable, and there is no distinction in this respect between immoral and illegal contracts[18] if the intention of legislature is to forbid an act in public interest, an agreement to do the forbidden act will obviously be void.[19] An agreement is unlawful if the courts regard it as opposed to public policy. The term “public policy”[20] is broad sometimes court consider public interest, refuse to enforce a contract[21] State of Maharashtra v. Himmatbhai Narbheram Rao[22] “While striking a balance between rights of individuals and rights of citizenry as a whole, the financial loss caused to individuals becomes insignificant if it serves a larger public interest”
Prohibition on International surrogacy in India
Jan Balaz v. Anand Municipality[23], a German couple entered into a contract with a surrogate mother in India and consequently, twin children were born. The question that arose was whether the children would be entitled to Indian citizenship by birth as they were born in India to an Indian national. The passport authorities had withheld the children’s passports on account of the pending litigation. In its final decision, the Supreme Court granted an exit permit to the children, thus evidencing again, a pro-surrogacy contract stance of the judiciary. The Surrogacy (Regulation) Bill 2016 bans all foreign applicants, bringing to an end a period during which India became the world’s “fertility tourism” hotspot, with an estimated $400m (£317m) per year being spent by couples from abroad.[24]
Prohibition on Homosexuals and Single Parent from being guardian in India
During the 1980’s surrogate mothers were used by the gay community to build their families, then, it was frowned upon by society[25] Hon’ble Apex Court has made it clear that a homosexual can be a legal guardian of the minor child[26]. Law Commission in its 228th report also affirmed that a homosexual can be considered to be the guardian in cases of surrogacy arrangement if he is biological father of the child. However Surrogacy Act, 2016 prohibits Homosexuals and Single parent from being a guardian on surrogate child. In these cases the minor child is in a feeding state i.e., she/he needs her/his mother`s milk for proper nutrition [27]. It is also medically advised to breast-feed the child for at least six months so that the minor child growth is not affected [28].
Close Relative under Surrogacy Act, 2016
The Act doesn’t define close relative which is essential for being a surrogate mother, a situation where any of the relative is not willing to help the intended couple or doesn’t willing to fulfill the conditions of intended couple will not be able to conceive the child, furthermore in close relative it is for sure that the surrogate child will come to know about the surrogacy agreement which may cause negative psychological effect on the child and surrogate mother as well.
Surrogacy Laws in Other Countries
In USA there are few states which prohibit the commercial surrogacy, some allows surrogacy contracts, and some allow altruistic surrogacy with no payment to surrogate mother while some remains silent but they have strong judicial precedents to protect the rights of surrogate mother and intended parents. In Europe most of the governments haven’t sanctioned the Surrogacy. In Germany, France, Italy and Switzerland the governments haven’t been supporting surrogacy babies. In the United Kingdom, Denmark, Ireland, the Netherlands and Belgium, altruistic surrogacy is legal while commercial surrogacy is not in Canada the law is same like UK.
Maternity Leave for intended mother
“When motherhood becomes the fruit of a deep yearning, not the result of ignorance or accident, its children will become the foundation of a new race.”
There ought not to be any discrimination of a woman as far as the maternity benefits are concerned only on the ground that she has obtained the baby through surrogacy.[29] Article 25 (2)Universal Declaration of Human Rights evolved by the United Nations and adopted by the General Assembly on 10.12.1948. Reads as follows:-
(2) Motherhood and childhood are entitled to special care and assistance. All children whether born in or out of wedlock, shall enjoy the same social protection.”
The Beijing Declaration and Platform for Action Fourth World Conference on Women, dated 15.09.1995, wherein the right of all women to control all aspects of their health, in particular their own fertility is basic to their empowerment was reaffirmed. Articles 17 and 33 reads as follows:-
1. Article 17- The explicit recognition and reaffirmation of the right of all women to control all aspects of their health, in particular their own fertility, is basic to their empowerment;
2. Article 33- Ensure respect for international law, including humanitarian law, in order to protect women and girls in particular.
The Rights of the Child by United Nations General Assembly by a resolution on 20.11.1989, wherein Article 6 reads as follows:-
Article 6:-
1. States Parties recognize that every child has the inherent right to life.
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
Madras High Court in the case of K.Kalaiselvi v. Chennai Port Trust[30],stated that A female member of the Service having minor children below the age of eighteen years may be granted child care leave by the competent authority for a maximum of 730 days during her entire service for taking care of upto two children. During the period of child care leave, such member shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.
Conclusion
Under the Indian Constitution, a surrogacy transaction can be recognized indirectly by interpreting certain constitutional provisions. One of the vital interpretations is with respect to Article 21 which is understood to be wider than mere ‘animal existence,’[31] and includes all aspects of life which make it worth living. As opposed to the negative right of freedom from state interference, Article 21 has a ‘positive’ content encompassing the quality of life and ‘the right to carry on such functions and activities as constitute the bare minimum expression of the human self.’[32]
In India, ‘the right to have reproductive choices’ has been declared as a part of Article 21 of the Constitution[33].The Andhra Pradesh High Court in B.K. Parthasarthi v. Government of Andhra Pradesh[34] recognized reproductive rights as a fundamental right and upheld ‘the right to reproductive autonomy’ of an individual as a facet of his right to privacy. When the concept of privacy is extended to matters of procreation, state’s interference or restrictions on procreation amount to a direct encroachment on one’s privacy. It is in this situation that the state, as a part of its positive obligation under Article 21, must make provision or must recognize the mechanisms like surrogacy, so that parties who are unable to procreate child on their own, can legitimately exercise their right to ‘reproductive choices’.[35]
By: Vipin Sharma [1]
[1] Student (VIII Semester- B.A.LLB.); National University of Study and Research in Law, Ranchi.
[2] J. Arijit Pasayat in Baby Manji Yamada v. Union of India, AIR 2009 SC 84.
[3] Typically, the surrogate is acting for married couple but is not limited to them and it may include gay and lesbian couples or single men or women.
[4] Garner B.A., Black’s Law Dictionary, (9th ed., 2009)
[5] P. Geetha v. Kerala Livestock Development Board Ltd., 2015 (1) KLJ 494.
[6] K. Kalaiselvi v. Chennai Port Trust, (2013) 3 MLJ 493; M. Veersamy v. State of Tamil Nadu, 2012 (3) CTC 641.
[7] Baby Manzi Yamada v. Union of India, AIR 2009 SC 84.
[8] Law Commission Of India, Report No.228, Need For Legislation To Regulate Assisted Reproductive Technology Clinics As Well As Rights And Obligations Of Parties To A Surrogacy, August 2009.
[9] Indian Council of Medical Research, 1949.
[10] National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, Guidelines No. 3.5.4. (Issued by ICMR).
[11] Smita Chandra, Surrogacy & India, (Jan. 18, 2013), http://ssrn.com/abstract=1762401.
[12] Baby Manji Yamada v. Union of India, AIR 2009 SC 84
[13] (AIR 2009 SC 84; (2008) 13 SCC 518).
[14] Extracted from Law Commission of India, Report No. 228, “Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy” (August, 2009).
[15] J.P.S. Sirohi, Criminology and Penology, 679 (2011).
[16] Editorial, “Surrogate Motherhood” The Tribune, December 23, 2009.
[17] Report of Center for Social Research, “Surrogate Motherhood: Ethical or Commercial” Available at: http://www.womenleadership.in/Csr/SurrogacyReport.pdf (Visited on 5th January,2019)
[18] Halsbury in his Laws of England, 3rd Edn., Vol. 8, makes a similar statement, at p. 138
[19] Babiah v. Mohd Abdus Subhan Khan, AIR 1954 Hyd. 156.
[20] Lord Wright, Legal essays and addresses; Winfield, Public Policy in the English common law, (1928) 42 Har L Rev 76-102.
[21] Thomson- CSF v. National Airport Authority of India, AIR 1993 Del. 252.
[22] AIR 1970 SC 1157, (1969) 2 SCR 392.
[23] ( AIR 2010 Guj 21 ).
[24] The Telegraph, “India bans commercial surrogacy to stop ‘rent a womb’ exploitation of vulnerable women” 20th December, 2018. Available at- https://www.telegraph.co.uk/news/2018/12/20/india-bans-commercial-surrogacy-stop-rent-womb-exploitation/ (Visited on 5th January, 2019)
[25] Ashley Kate, “History of Surrogate Motherhood” Available at: http://www.ezineArticles.com.
[26] Baby Manzi Yamada v. Union of India, AIR 2009 SC 84.
[27] Smt. Veena Agrawal v. Shri Prahlad das Agarwal, AIR 1976 MP 92.
[28] Article 24, Convention on the Rights of the Child (General Assembly resolution 44/25 of 20 November 1989) (entry into force 2 September 1990).
[29] P.Geetha v. The Kerala Livestock Development, 2015 SCC Online Ker. 71.
[30] 2013 SCC Online Mad. 811.
[31] P.Rathinam v. Union of India, (1994) 3 SCC 394.
[32] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746; C.E.R.C. v. Union of India, AIR 1995 SC 922; KapilaHingorani v. State of Bihar, (2003) 6 SCC 1; Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.
[33] B.K. Parthasarthi v. Government of Andhra Pradesh, AIR 2000 AP 156.
[34] B.K. Parthasarthi v. Government of Andhra Pradesh, AIR 2000 AP 156.
[35] Ibid.
