Blog Image

Fate of Surrogacy in India and Laws Interconnected

Fate of Surrogacy in India and Laws Interconnected 
- Aakaansha Arya, Student of Bennett University, Greater Noida

Ramu Makwana, 30, mother of three, first time surrogate mother when asked why she resorted to commercial surrogacy answered that she needed money and was helpless. She further says that she wakes up every morning at 6, brushes her teeth and then reads a book named ‘Ardaas’ which talks about, no matter what ever mistakes one makes during the day, all of them will be forgiven. Her husband alsoadds, that after nine months whatever money they receive will be used on the family, they will build a house and the rest will go on to theirkids’ education. Such is the plight of most people in India who ply to surrogacy as a commercial practice.
Surrogacy can take place through agreement and arrangement. When there is an agreement with regard to surrogacy then it is for a commercial purpose usually involving a monetary benefit while in the latter case when it is an agreement it said to be as altruistic surrogacy wherein a couple who wants a baby is unable to have a child because either both of them or one of them are medically unfit for the same. 

Surrogacy as a matter of fact has come into limelight when Karan Johar had opted for surrogacy through a commercial route. Not only him, previously actors like Shah Rukh Khan, Tushar Kapoor and Aamir Khan have also followed a commercial surrogacy route. However, it is to be noted that Karan Johar may be the last person to do so before a bill is passed in the parliament which makes it ineffective for a single parent to opt surrogacy. The bill has been introduced in the Lok Sabha an is undergoing the scrutiny of the parliamentary committee.

India, today is a hub for commercial surrogacy. In 2002 India became the first country to legalize commercial surrogacy. In developed nations surrogacy is permitted only among relatives, however the situation in here is different, we offer low cost medical facilities as a result of which we attract medical tourism in general and surrogacy in particular.The fee for commercial surrogacy in India is exceptionally nominal which as a result leads to exploitation of women in the community. Indian clinics charge only about $10,000 - $ 28,000 which is 1/10th less than the United States. It is for this reason that by 2012, India had become the surrogacy capital of the world with surrogacy tourism valued at $400million annually (according to UN 2012 report)

At present, in the absenteeism of a statutory mechanism to curb surrogacy, there have been many cases in the tribal as well as rural areas of pregnancies by the way of surrogacy leading to increasing exploitation of women by the unscrupulous elements. There have been several litigation cases in the past with regard to surrogacy. Recently, in the case of Baby Manji Vamada, a Japanese couple, availed surrogacy but got divorced while the surrogate mother was bearing the child, the father wasn’t granted the custody of the child and the mother did not accept the child. All this causes disruption in the society at large.

The 228th report under the law commission of India prohibits the practice of commercial surrogacy within the country. It sanctions the practice of only altruistic surrogacy ie. without any monetary benefit to the mother, and that she has to be a blood relative. Further the couples who have opted for surrogacy have to show a certificate manifesting that either one of them is unfit to bear the child. Only legally wedded Indian couples will be entitled. However, it also lays down certain constraints wherein couples already having a child, foreigners, homosexuals, live-in-partners OCI card holders and windows will be barred from opting surrogacy. 

The draft bill is currently pending with the parliamentary committee. The government has proposed that a National Surrogacy Board at the Central Level will be established, chaired by the Health Minister and a State Surrogacy Board and appropriate authorities in the State and Union Territories. The surrogate mother will be allowed to bear a child for altruistic purpose only and under no circumstance shall money be paid to her except medical expenses. The surrogate child will have equal rights like any other biological child or adopted child over property. The bill also states provision regarding a jail term up to 10 years and fine of Rs. 10 lakhs in case of violations such as abandoning the child or opting for commercial surrogacy.

The bill has been criticized on the grounds that the surrogate mother shall be aged between 25-35 years of age and that she needs to have a child of her own to be eligible for the same. It not only bans homosexuals but also makes it difficult for heterosexuals couples with medical indication for surrogacy. The government has been forcing intending parents to go abroad for the procedure to countries like Ukraine, US, Georgia where it is legal. Many countries including the UK have experimented with altruistic surrogacy and have realised that this only pushes the whole transaction underground. One cannot say with conviction that exploitation will not occur in case of altruistic surrogacy. While taking in view the cases related to organ donation we can infer that there is no guarantee that the mother-in-law and other vulnerable women of the family won’t be blackmailed into this.

Hence, one can infer that despite several measures being taken there is still some scope of exploitation and underground marketing of surrogacy.What can be the solution to all this? The government shall take measures to encourage people to resort to adoption by counselling the people. The main focus is to ban exploitation, this can be done by proper education, nutrition, and adequate emoluments to the surrogate. The clinics shall be adequately monitored and the law needs to be framed in a better manner by providing technical inputs and considering the political will.