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Surrogacy in India: A Legal Perspective
By the turn of the 21st Century, India became a destination for the purpose of surrogacy and commercial surrogacy centers began to crop up especially in Gujarat’s Anand district which became the hub of commercial surrogacy in India. Surrogacy is a technique wherein the intended parents who are incapable to become parents by all other means resort for the womb of a woman who is willing to carry the child to maturity for them and thus acts as a substitute for the genetic mother.
Due to the surrogacy being a sensitive issue that involves the lives of many, the Government of India has from time to time made the necessary efforts to come up with bills and first effort come through in the year 2002 in the form of the Indian Council of Medical Research (ICMR) guidelines. 2002, also being the year in which the surrogacy was legalized in India. Followed by this the National Guidelines for Accreditation, Supervision, and Regulation of ART (Assisted Reproductive Technology) clinics in 2005 and some of the guidelines mentioned were: apart from ART clinics no other clinic or hospital would undertake the commercial surrogacy, consent of husband would be required in case a woman is married, sex-determination of the baby was not permitted, a known woman to intended parents could not be a surrogate, a child born would have same rights as a legitimate child. The guidelines were non-statutory yet they were adopted by a number of clinics undertaking surrogacy and India thus became a hub of commercial surrogacy even for Indians as well as foreigners.
The practice of surrogacy continued in India for a long time without any legal framework in place and in the year 2008 the legislative effort was made when the Assisted Reproductive Technology Regulation Bill, 2008 was presented in the Parliament but however it failed to achieve the status of an enacted law and was criticized as it lacked majorly in some areas of bigger concern like the rights of the surrogate mother and focused more on the clinics, on how they could avoid any legal issues.
The year 2008 also witnessed a major case involving surrogacy that created headlines all over the country and raised a need for the laws dealing with surrogacy. This case was the Baby Manji Yamada case wherein a child born to an Indian surrogate mother for a Japanese couple and issues came up with the nationality of the child born, the custody of the baby as well as the commercial surrogacy.
The 228th Report of the Law Commission which was submitted in the year 2009 has great importance as it dealt with the need for legislation pertaining to surrogacy in India and presented a proposal to have a law dealing with surrogacy in India and the process that it involved. This report discussed various issues dealing with surrogacy like the ethical aspect, societal issues, and issue of foreigners opting for Indian mothers to be a surrogate mother and the issue of the citizenship of such children born.
The Assisted Reproductive Technology Bill was revised again as the earlier one remained pending. Few changes were introduced after the recommendations of the Law Commission Report and the Ministry of Health and Family Welfare, Government of India drafted a bill known as the Assisted Reproductive Technology Bill, 2010. This bill involved many laws related to the surrogacy contracts and punishments in case of violations by the parties involved.
After further modifications, the Assisted Reproductive Technology (Regulation) Bill was prepared and then again in 2013 and then in 2014 but both of these could not see the light of the day.
A new bill was introduced in the Parliament which is known as the Surrogacy (Regulation) Bill, 2016 and it differed from the one which was introduced last in the year 2014 in many respects and it was passed by the Lok Sabha in the year 2018 but still, it could not achieve finality and it was not introduced in the Rajya Sabha. The Bill which was conceived in the year 2016 made a reappearance in the Lok Sabha and was called the Surrogacy (Regulation) Bill, 2019, and was passed on 5th July 2019. It differed from the earlier Bills that were introduced in the years 2008 and 2014 as these permitted commercial surrogacies while this one aimed to bring the laws in India pertaining to surrogacy at par with the laws in developed countries like Canada and United Kingdom.
The law at present which we have pertaining to surrogacy is in the form of the Bill of 2019 and it contains few important legal standpoints with regard to surrogacy in India like there is a complete ban on the commercial surrogacy and a ban on the foreigners from making India a hub for commercial surrogacy and restricts the surrogacy only to the married couples excluding the single persons and/or unmarried and those in live-in relationships from the use of surrogacy. However, the LGBT persons and those who are single/unmarried would be at a loss and would have to look for other options to experience parenthood like adoption. The need for the country is to have a legislation that mulls over all the aspects related to surrogacy and comes up with a law that would be constitutionally valid and would stand true in the times to come.
