Surrogacy – The Unheard Tale and Supreme Court’s Volte-Face
Surrogacy, the once altruistic act of offering one’s womb as a medium for an infertile woman to have a child has quickly evolved into a multimillion-dollar industry. The demand for surrogate mothers increasing in correspondence to the payments offered to them. The boom in the surrogate industry was met with contempt in India and is still seen as Taboo. The Supreme Court and the Central Government have made efforts to legalize and regulate the industry. In addition, it provides surrogate women and couples with a legal process to avoid any complications.
In the 2008 case of Baby Manji Yamada vs Union Of India & Anr, the Supreme Court was heralded for its progressive stance and outlook. This case and the judgment laid the foundation for commercial surrogacy in India until it was struck down by The Surrogacy (Regulation) Bill, 2019. The passing of this bill by the parliament was seen as problematic as the resulting restrictions were against the regulation of an industry that thousands depended on in favor of a more conversationalist and traditionalist view.
Different types of Surrogacy
Since its development in 1986, Gestational Surrogacy and Traditional Surrogacy are the only two available types of surrogacy in India. Of these two, only Gestational Surrogacy is legally allowed;
Traditional Surrogacy is artificial or natural insemination of the reproductive elements of a male into the body of a healthy female resulting in pregnancy. This method fails to find any legality in India as the grounds under which such a pregnancy would have been possible were declared adulterous and immoral. The conception of a healthy embryo under these conditions does not fall under the provisions of the Assisted Reproductive Treatments Act, 2008. Thus making it void and illegal.
Gestational Surrogacy is the process by which a developing embryo is implanted into the surrogate mother’s body. This is done after the conception of the embryo through the method of IVF or Invitro Fertilization. This method was accomplished in 1986 since when it has gained popularity and relevance. This is the only allowed method under the ART, 2008 as the resulting embryo will not be considered adulterous or immorally conceived. This is also the only method allowed in India since its legalization in 2002.
Surrogacy Regulation Bill, 2019
The Surrogacy Regulation Bill laid the foundations for the new and now applicable rules surrounding surrogacy. It explains how to apply for it and who could be a surrogate. The bill sought to criminalize Commercial surrogacy, the action of maintaining and birthing a surrogate in exchange for monetary compensation. In place of commercial surrogacy, the act was in support of Altruistic surrogacy. It took steps to encourage only altruistic surrogacy (no monetary compensation). Despite the problems, this act poses for the thousands of surrogate mothers that now have no way to earn any compensation for their troubles, the act laid down guidelines in support of altruistic surrogacy and allowed for the payment of their basic bills and insurances. In addition to this, there is now a list of criteria one must fulfill to be eligible for surrogacy and to be a surrogate. These criteria are;
The intending couple should have a certificate of essentiality and a certificate of issued by the appropriate authority.
A certificate of essentiality will be issued upon fulfillment of the following conditions –
- A certificate of proven infertility of one or both members of the intending couple from a District Medical Board;
- An order of parentage and custody of the surrogate child passed by a Magistrate’s court; and
- Insurance coverage for 16 months covering postpartum delivery complications for the surrogate.
The certificate of eligibility to the intending couple is issued upon fulfillment of the following conditions:
- The couple being Indian citizens and married for at least five years;
- Between 23 to 50 years old (wife) and 26 to 55 years old (husband);
- They do not have any surviving child (biological, adopted, or surrogate); this would not include a child who is mentally or physically challenged or suffers from a life-threatening disorder or fatal illness, and
- Other conditions that may be specified by regulations.
In addition to the criteria for the parents, the surrogate mother has to fall under certain loosely defined criteria for her to be eligible to carry the baby of the intending couple. These criteria are –
- A close relative of the intending couple;
- A married woman having a child of her own;
- 25 to 35 years old;
- A surrogate only once in her lifetime; and
- Possess a certificate of medical and psychological fitness
- Further, the surrogate mother cannot provide her gametes for surrogacy.
Surrogacy and the Supreme Court
Commercial Surrogacy is growing in popularity across the world. India is one of the most sought-after destinations for acquiring the services of a surrogate mother. The low cost of healthcare and the relative weakness of the Indian Rupee in a global context made the practice cheap and lucrative in India. Thousands of women rent out their wombs to couples who want to have children but cannot. This is the sad plight of the poor in India where they have to resort to means such as surrogacy to survive and provide for their families. In light of surrogacy being treated as an occupation, the Central government through the Surrogacy Regulation Act, 2019. They placed a ban on all forms of commercial surrogacy effectively. This erased a potential form of livelihood for all surrogate mothers in India.
The Supreme Court has historically held a very progressive stance on the issue. It has often supported commercial or altruistic surrogacy. It often disagreed with the government on its orthodox and restrictive behavior. The court has in the past acknowledged the taboo nature in India but has insisted that surrogacy and other forms of ART be made available to the public. It has reduced the restrictions to a great extent through judgments such as the Baby Manji Yamada vs Union Of India & Anr case or the responding to the petition before the court challenging commercial surrogacy on moral and ethical grounds.
While India does not bestow upon the Supreme Court the power to repeal a law directly, it is allowed to take Suo Moto cognizance of an issue, It can decide the constitutional implications of such an issue, a system which has been seen to be lacking with the new amendments to the Act. The Supreme Court has in the past responded to petitions challenging the legality of Commercial Surrogacy and asked the center to justify its stance on the issue before providing a ruling (as was seen in 2015).
The lack of any legal response from the Supreme Court regarding the 2019 act may reflect that the Supreme Court agrees with the ethical and moral compromises with the action of commercial surrogacy, instead choosing to endorse altruistic surrogacy as the way forward while maintaining strict control over the practice of commercial surrogacy but nothing can be said for certain as their stance on this has not been made public as of yet. It can be mentioned, however, that the unregulated commercial surrogacy industry was in desperate need of organization, a desirable and supportive move would have been to organize a sector that was previously entirely unregulated, effectively answering the moral dilemmas people have had over commercial surrogacy while also taking a firm stance on the issue.
Moral and Ethical Dilemmas Arising from Commercial Surrogacy
Surrogacy is seen with about as much taboo as other forms of ART such as Artificial Insemination or In-Vitro Fertilization. It is considered socially unwanted. Surrogate babies are often spoken about the same as babies from other forms of ART. Surrogacy, however, has to also contend with the moral dilemmas people raise concerning Traditional or Commercial Surrogacy. The act of naturally causing pregnancy to a woman other than the partner of the intended father is adulterous, however, the act of commercial surrogacy is often akin to the purchase and sale of babies.
Surrogacy has resulted in the commoditization of offspring, which raises ethical concerns. It is well recognized for severing the link between children and their moms and interfering with nature itself. Women are eventually exploited as a result of this, especially in poor nations. In addition to this, surrogacy in India is controlled either by the guidelines issued by the Supreme Court or the regulations passed by the ICMR. This makes it impossible for surrogate mothers to decide which laws to appeal under. This leaves them devoid of rights and open to oppression and exploitation.
Surrogacy is probably one of the most debated and most well-known forms of ART and is widely popular in India. Low healthcare and medical costs have attracted baby tourists from across the world to India. This has caused a boom in the surrogacy business. The availability of buyers or parents willing to pay caused the practice of surrogacy to turn into a poorly regulated and exploitative business practice. In order to maximize profits, surrogate mothers deliver babies at astronomically high rates. This results in one or sometimes more than one genetic defect, problem, or other complications. In response to this, the central government has in their 2019 act placed a blanket ban on commercial surrogacy. This was done to address the moral concerns raised by many concerned citizens.
The Supreme Court has asked the center to justify its stance but there has been no judgment from the Supreme Court, an institution that was once praised for its progressive views on reproductive rights. In addition to the loss of livelihood, surrogate mothers now find themselves in a difficult spot as they are devoid of rights owing to the legal vacuum created by a stringent ICMR law on ART and the lack of any court-issued guidelines leaving them exposed to exploitation and malpractices.
The plight of surrogate mothers must be recognized through formal legislation and better introduction of laws that may alter the life of many such people. Their issues must be taken into consideration before any further legislation is passed and the Supreme Court too must take cognizance of such an unorganized sector in the country. Instead of removing benefits given to commercial surrogates, there should be increased benefits to altruist surrogates to better encourage responsible surrogacy and there should be an earnest effort to address all the issues surrounding surrogacy, both commercial and altruistic, and solutions to those issues must be framed responsibly.