SURROGACY
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Objective
The objective of this research study is to
solve legal issues involved in surrogacy,
provide details about the rights of
surrogates, and propose ideas for
strengthening them by implementing
innovative solutions to contemporary
difficulties. As a result, we comprehend
surrogacy protection in India from a number
of angles and critically examine the new act.
The objectives of this research paper are to
illustrate judicial trends that tend to protect
surrogates, the evolution of laws in India
and, at the end, this research paper offers
some suggestions for developing awareness
about surrogate protection laws.
What is Surrogacy?
Surrogacy or Surrogate means substitute. In medical parlance, the term
surrogacy means using of a substitute mother in the place of the natural
mother
In traditional surrogacy (also known as the Straight method) the surrogate is pregnant
with her own biological child, but this child was conceived with the intention of
relinquishing the child to be raised by others such as the biological father and possibly
his spouse or partner. The child may be conceived via sexual intercourse (NI), home
artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine
insemination), or ICI ( intracervical insemination) which is performed at a fertility
clinic. Sperm from the male partner of the 'commissioning couple' may be used, or
alternatively, sperm from a sperm donor can be used. Donor sperm will, for example, be
used if the 'commissioning couple' are both female or where the child is commissioned
by a single woman.
History of surrogacy in India
Surrogacy is a blessing for infertile couples. A woman carrying a baby for others in her womb for others by transfer of embryo
or gametes created using the intended parents is called surrogacy. It has been practiced in India from ancient times it was
known by the term Niyoya Dharma.
The seventh child of Devki and Vasudev. Balram was transferred in womb of Rohini who was Vasudev's first wife while it
was embryo. It was done to prevent the baby being killed by Kansa.
Gandhari in Mahabharata delivered a mass after two years of long pregnancy. It was found by Rishi Agyasa that the mass
contained 101 cells. These cells were put in a nutrient medium and grown outside the womb out of which 100 male babies
known as Kaurans and a female body known as Dushala were developed.
Kartikey mostly known as god of fertility was also born out of Surrogacy through Shiva and Ganga (the surrogate mother).
It is clear that surrogacy existed in ancient times also and so there is no conflict between assisted reproduction and socio
religious mores.
Compensated surrogacy, also variously called "Commercial
surrogacy", "paid surrogacy", "wombs for rent", "outsourced
pregnancies" or "baby farms", compensated surrogacy refer to a
form of surrogate pregnancy in which a gestational carrier is
paid to carry a child to maturity in her womb and is usually
resorted to by well off infertile couples who can afford the cost
involved. This procedure is legal in several countries including
in India where due to excellent medical infrastructure, high
international demand and ready availability of poor surrogates it
is reaching industry proportions.
We have entered a new age. Now it is scientifically possible for a baby to be created in a petri dish from the
sperm of a man and the eggs of a woman, and the resulting embryos can be transferred into a second woman
to gestate.
Through the use of fertility drugs and careful monitoring, these embryos can grow to full term babies, which are
then given back to the persons who commissioned the process, which are not necessarily those who originally
donated the eggs and sperm for the event. So, is surrogacy right?
Considerations in Surrogacy Legal Issues
There is no legal standard for surrogacy
from state to state, or from country to
country. However, it is almost always
certain that any dispute will be heard in
the jurisdiction where birth occurs.
Moral and Ethical Issues Some of the
reasons all states haven't found it easy to
pass surrogacy legislation are related to
moral and ethical issues of embryo
creation, fees that some see as baby
buying (or baby-selling), and others.
Mother-child relationship: A study by the Family and Child Psychology Research Centre at City University, London,
UK in 2002 concluded that surrogate mothers rarely had difficulty relinquishing rights to a surrogate child and that the
intended mothers showed greater warmth to the child than mothers conceiving naturally. Anthropological studies of
surrogates have shown that surrogates engage in various distancing techniques throughout the surrogate pregnancy so
as to ensure that they do not become emotionally attached to the baby. Many surrogates intentionally try to foster the
development of emotional attachment between the intended mother and the surrogate child. Assessing such studies
from a social constructionist perspective reveals that the expectation that surrogates are somehow "different" from the
majority of women and that they necessarily suffer as a consequence of relinquishing the child have little basis in
reality and are instead based on cultural conventions and gendered assumptions. Many surrogates form close and
intimate relationships with the intended parents. When the greatness of their efforts is acknowledged, they recall their
surrogacy experience in the years to come as the most meaningful experience of their lives
The Price Tag: Surrogacy isn't inexpensive. Except in the case where a sister or friend agrees to act as a surrogate
without a fee, total costs and expenses may include the surrogate's fee and possible expenses, lawyers' fees, fertility
specialists' fees, and fees connected with an adoption, if that is required. Cost estimates for traditional surrogacy
range between $40,000 and $65,000 and for gestational surrogacy, between $75,000 and $100,000.
Change of Mind: As in traditional adoption, surrogates can have a change of mind and decide they do not want to
relinquish the baby. Depending on state law, whether there's an agreement, and how it's interpreted by the court, the
outcome isn't necessarily certain.
Land Mark cases for surrogacy
1. Landmark case for Surrogacy August 17, 2012: On 4 May 2012, the New South Wales Supreme
Court found for the first time in Australia that a same-sex couple to be the parents of a baby that was born
through a surrogate, with a court ruling it was in the child’s “best interests”.
2. Baby Manji Yamada v. Union of India, a landmark case that made the apex court question the validity of
commercial surrogacy set into motion talks for having the country a just and solid legislation. In the said case,
the biological parents, Dr. Yuki Yamada and Dr. Ikufumi Yamada came to India in 2017 and entered in an
agreement with a surrogate mother in Anand, Gujarat. Subsequently, the surrogate baby was born on
25/6/2008. By this time, the intended parents, due to marital conflicts had separated and though it was agreed
upon initially that the father would be granted custody if such a situation arose, Dr. Yuki’s visa expired and he
had to fly back to Japan. Nonetheless, he tried to still claim the baby by applying for her passport, but the
Japanese Civil Code bore no recognition for surrogate children born to a woman of non-Japanese origin and
thus, rejected his application.
Ethical Issues of Surrogacy: Science Babies
The entire idea of a child created in
a test tube and carried by an
unrelated woman is enough to drive
fear into the hearts of many while
questioning the ethics of surrogacy.
The very thought conjures up
visions of science fiction movies
gone bad, or thoughts of the
privileged few genetically creating
the perfect child. Is surrogacy right?
ETHICAL QUESTIONS
1. What are the pros and cons of using unused embryos for medical
research?
2. Is there anything wrong with disposal of unused embryos …
leaving them on the counter to unthaw and degenerate?
3. What if the surrogate decides to maintain her privacy?
4. What if the surrogate and the spouse violate the abstention clause?
5. What if the surrogate decides to keep the baby?
6. What if the surrogate with genetic ties demands to visit her child?
7. Is there anything wrong with a surrogate giving her unused
embryos to someone else?
8. Who should make a decision to unthaw frozen embryos?
9. Is handing over a child after delivery for a fee “baby-selling”?
10. Do women participate in surrogacy to save their marriage?
11. Is it wrong for a surrogate to abort?
References:
1 Nigam, A. (2013) Surrogacy: An Indian perspective
2 Ibid
3 Baby Manji Yamada vs. Union of India & Another. (2008) 13 SCC 518. Mukherjee,S. (2011). Legal and Ethical Issues of Commercial
Surrogacy: An Overview. Indian Legal Aspects of Commercial Surrogacy.
http://www.academia.edu/1955503/LEGAL_AND_ETHICAL_ISSUES_OF_COMMERCIAL_S URROGACY_IN_INDIA_AN_OVERVIEW,
http://indiankanoon.org/doc/854968/ and http://jils.ac.in/wpcontent/uploads/2011/12/5_Jwala-Thapa_new-style_completed1.pdf
4 https://www.drishtiias.com/daily-updates/dailynews-editorials/surrogacy-regulation-bill-2019 Electronic
5 https://egazette.nic.in/WriteReadData/2021/232118.pdf
6 (2014) 5 SCC 438.
7 National Legal Services Authority v. Union of India, (2014) 5 SCC 438, para 58.
8 Convention on the Elimination of Discrimination against Women (adopted 18-12-1979 entered into force 3-9-1981) 1249 UNTS 13
(CEDAW).
9 Convention on the Elimination of Discrimination Against Women (adopted 18-12-1979 entered into force 3-9-1981) 1249 UNTS 13
(CEDAW), Art. 16(1)(e)
10 The Surrogacy (Regulation) Act, 2021
11 The Constitution of India, Art. 21 (right to life and personal liberty)
12 (2017) 10 SCC 1, 83.
13 (2009) 9 SCC 1, para 22.
14 (2018) 10 SCC 1, para 461.
15 (2017) 10 SCC 1.
16 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, para 144.
17 National Legal Services Authority v. Union of India, (2014) 5 SCC 438, para 62.
18 The Protection of Women from Domestic Violence Act, 2005, S. 2(f)
