Nukavarapu. Khyathi Priya
1st Year BBA LLB,
Supervised by Dr. Sailaja Petikam,
Associate Professor,
KLEF College of Law,
KLEF Deemed to be University
Guntur, Andhra Pradesh-522302
Surrogacy is a process where a woman agrees to carry and give birth to a baby in place of a
woman who has medical issues in carrying
the baby by herself. The born baby will be given
back to the intended parents.
CLASSIFICATION OF SURROGACY:
1.
Traditional surrogacy
2.
Gestational surrogacy
3.
Altruistic surrogacy
4.
Independent surrogacy
5.
Commercial surrogacy
(However, only gestational surrogacy is now permitted in India, and it is the
only kind of surrogacy that is done at the fertility world surrogacy center)
GESTATIONAL SURROGACY:
It is a process where a woman who did not
provide the egg used in fertilization, carries a neonate embryo by way of
pregnancy and gives birth to a neonate for another person or couple.
The following people will consider in
gestational surrogacy:
1: people who scuffled with infertility
2: Hopeful single parents
3: Same-sex couples
4: People who don’t want a genetic link
between their child and the surrogate mother
5: Anyone who can’t carry the baby safely
due to medical issues during the term of pregnancy
HISTORY BEHIND SURROGACY:
The first mention of surrogacy can be
found in “The Book of Genesis” in the story of Sarah.
and Abraham. Sarah and Abraham were married but could not conceive a child of their own, so Sarah turned to her servant Hagar to be the mother of Abraham’s child. This is a case of traditional surrogacy, where the surrogate uses her egg in the child she’s carrying for the intended parents. Even though Sarah was not biologically related to the baby, she and Abraham both claimed the child as their own. Up until about 30 years ago, traditional surrogacies like these were The only way intended parents could create a child through surrogacy. Traditional surrogacy remained a taboo topic up until the twentieth century due to the stigmas associated with infertility and “illegitimate” children.
FRAMEWORK OF SURROGACY:
Surrogacy is arguably not a new process. the idea of surrogacy has been around since mythological and biblical times, but it has been implemented only 30 years ago. India being the capital of surrogacy our country has a huge pragmatic influence on infertile couples by providing them with reasonable costs, and fewer restrictions, and also majorly the advanced IVF technology makes our country to be a step ahead compared to the rest of the world. Looking back, in the year 2002 Commercial surrogacy was legalized in India. India's surrogacy rate was highly improved all at once and followed by Commercial surrogacy made it’s forte in the surrogate law by favoring the foreigners who came to India in search of a woman's womb.
Although commercial surrogacy made its
forte through rapid growth, day by day it was exploited and has become a
commercial business of selling babies by ruining our country’s reputation. The
228th report of the Law Commission of India proposed to prohibit this
commercial law and in place of that Altruistic law was introduced by providing suitable
legislation Later in the year 2005 the ICMR issued some regulations saying that
the surrogate mother must not donate her egg for the surrogacy, and she is
required to relinquish all the parental rights related after the baby is born.
Thereafter in the year 2008, the ASSISTED REPRODUCTIVE TECHNOLOGY bill that is
the ART bill was drafted.
It deals with the process followed to
select a surrogate mother, patient, and their rights in
2015 a government notification prohibited
surrogacy for foreign nationals. The surrogacy
regulation bill was passed on 21 November
2016 in the Lok Sabha.
It allows Altruistic surrogacy and shouldn't involve monetary compensation to the surrogate mum other than medical expenses. After commercial surrogacy was banned by any surrogate clinic or medical practitioner, Only Altruistic was allowed legally under the surrogacy act. While Altruistic includes both gestational and traditional types of surrogacy. Gestational involves getting pregnancy results from the transfer of an embryo created by IVF in a way that the baby is not hereditarily related to the surrogate. While traditional includes surrogate women to impregnate naturally or artificially causing the child to be genetically related to her.
ELIGIBILITY CRITERIA FOR ALTRUISTIC SURROGACY:
1: Most single parents cannot be allowed
to have a surrogate child
2: Homosexuals cannot have a surrogate
child
3: Coupled who already have a child cannot
avail another one through surrogacy
4: Foreigners and NRIs are prohibited from using the Indian surrogacy process.
SOCIO CULTURE OF SURROGACY IN INDIA:
So many women who opt to be surrogate
mothers are from families who live on the edge of the poverty line, worrying
and working hard day and night to provide a good life and education to their
children while other reasons include the need for money to give dowry, to pay
for the medical bills, to improve their family situations One major ethical
concern of this practice is the development of bio markets in which certain
bodies become more bioavailable. Nations like India, Thailand, Mexico, and
Nepal prohibited commercial surrogacy, and the same practice is in use in nations
like Malaysia, Nigeria, Kenya, and South Africa. This pattern of
globally moving markets is based on
control over human reproductive biomaterial by the rich using global
inequalities and weaknesses, it recolonizes women's bodies and labor. It raised
global questions related to gestational roles, human and child rights
violations, and trafficking.
These markets raise ethical questions regarding the exploitation of the needs of the poor, these poor are at a disadvantage because they might get unequal care in health resources, they might enter into unjust contracts, and violation of good medical practices can also happen. Such concerns are evident in similar biomarkers such as organ donation, trafficking, and prostitution. Although the market through surrogacy is booming it also created space for illegal activities. The government of India proposed the prohibition of commercial surrogacy in 2016 because of the illegal usage, abandoning of children, and taking advantage of poor women.
MISUSE OF SURROGACY:
Many people tend to take advantage of
surrogacy and exploit it. There are a lot of possibilities in which a person
can take casualties in Surrogacy here are some ways to recklessly people misuse
this process: selling babies, exchanging and carrying babies for solely huge
amounts of money, they go against the rules, and crossing the boundaries of agreement.
While the donors abandon the child and the
surrogate mother helplessly sometimes in a hasty decision because they don’t
want that kid in the middle of the pregnancy process, on the flip side the
surrogate mothers demand more money in the middle of the contract blackmailing the
parents that the baby will not be given to them until their extra requirements are
fulfilled.
Most of the donors would turn their backs
on the child mid-way after they get to know the gender of the child which is
very unfair to that kid and the surrogate mother included, Although finding the
gender before being born only with cynical interests is illegal in India many
people still follow it
Commercial surrogacy was one of the most preferred processes for the abuse process of surrogacy. Commercial surrogates largely come from economically vulnerable households. They are very much in the need of money. The donors trick them and sometimes bluff them after crossing the limits mentioned in the contract because the surrogate mostly doesn't now what she agreed to in the contract. As she wasn't educated properly and blindly put her trust. Not particularly the donors but the agents also will have a hand in preventing the hefty amount to go to the surrogate as the agents mediate and manipulate the surrogates to pay them a lot of amounts. While the surrogate is the one who goes through utmost pain and uncertainty these agents ( middlemen ) intervene, take less burden but will steal a hefty amount On the other side if everything goes well and well the surrogate earns a huge amount. It is the poverty of the party that makes the price look lavish. Now they are getting paid less compared to the previous years as the foreigners used to pay them a solid price. all at once while a normal person will take 3 to 5 years to earn the same amount. While following surrogacy is not wrong, people simply demean pregnancy as a service or business and degrade the baby as a product or a mere thing. Only a few years ago, India estimated 20 - 25 million infertile couples which made a way for the ART (Assisted reproductive technology) bill to be a solution to their issues.
DRAWBACKS OF REGULATIONS IN INDIA:
The certainty and efforts of the government in making the rules related to surrogacy have been vague and lethargic regarding safeguarding and protecting the surrogate mother and child. Albeit ICMR released its guidelines regarding surrogacy in India, thereafter all the legislations regarding the ART have been started in 2008 nothing gave fruitful results to date There have been multiple lapses in the bills without even reaching the Rajya Sabha along with that sadly the refreshment of the bygones is being proposed. A lot of skepticism is present around this topic as not certain regulations were implemented. Abundant misinformation has become a casualty.
RECENT AMENDMENTS REGARDING SURROGACY MADE
BY THE
GOVERNMENT:
1. The surrogate mother should only be a
surrogate not more than 3 times, which is only
3 embryos on the whole and only one embryo
should be transferred to the surrogate in
the treatment cycle.
2. Application for registration of a
surrogacy clinic is necessary which is to be ensured
by the surrogacy clinic which takes
initiative to provide procedures
related to surrogacy
3. These surrogacy clinics must include at
least one gynecologist, one embryologist, one
anesthetist, and one counselor
4. Consent of the surrogate is to be
included and specified certainly