The desire to experience the joys of parenthood is a dream shared by every couple. Unfortunately, infertility can prevent some couples from fulfilling this dream. However, thanks to advancements in technology and medical science, the introduction of In-Vitro Fertilization (IVF) has made it possible for couples to experience the profound bond of having a child who shares their own genetic makeup.
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Surrogacy in India
India has gained recognition as a prominent destination for surrogacy, even predating the introduction of In-Vitro Fertilization (IVF). The surrogacy process has been a boon for India, attracting numerous infertile couples from various countries who seek surrogacy services. This phenomenon has given rise to reproductive tourism, as the cost of surrogacy treatment in India is comparatively lower.
Types of Surrogacy
- Traditional Surrogacy: In traditional surrogacy, the surrogate mother’s own eggs are used for fertilization. This can occur through artificial insemination or IVF using the intended father’s sperm or a donor’s sperm. As a result, the surrogate is genetically connected to the child.
- Gestational Surrogacy: In gestational surrogacy, the surrogate mother does not contribute genetically to the child. The intended parents’ or donors’ eggs and sperm are used to create embryos through IVF. These embryos are then transferred to the surrogate’s uterus for gestation and birth.
Gestational surrogacy is more commonly practised due to its ability to eliminate genetic ties between the surrogate and the child. It provides an option for couples who may face medical issues or same-sex couples who require the use of donor eggs or sperm.
Both traditional and gestational surrogacy have their own legal and ethical considerations, and the regulations surrounding them vary across countries and jurisdictions. It is important for individuals or couples considering surrogacy treatment to thoroughly understand the legal and emotional aspects involved and seek appropriate legal counsel and medical guidance.
Is Surrogacy legal in India?
Surrogacy is legal in India, but the regulations and guidelines surrounding it have undergone significant changes over the years. In 2002, India became a popular destination for surrogacy due to its relatively low cost and availability of surrogate mothers. However, with the rise in commercial surrogacy and concerns over exploitation, the Indian government introduced stricter regulations in 2015.
Different Surrogacy Laws and Acts in India
The primary legislation governing surrogacy in India is the Assisted Reproductive Technology (ART) Regulation Bill. This bill was introduced in 2010 to regulate the practice of assisted reproductive technology, including surrogacy. However, the bill was not enacted into law.
In 2016, the Indian government introduced the Surrogacy (Regulation) Bill, which aimed to prohibit commercial surrogacy and allow only altruistic surrogacy. Altruistic surrogacy refers to cases where the surrogate mother does not receive any financial compensation beyond the reimbursement of medical expenses.
The Surrogacy (Regulation) Bill, 2016, proposed several key provisions, including:
- a) Eligibility criteria for intending parents, such as being married for at least five years and having a medical condition that prevents them from conceiving.
- b) A ban on commercial surrogacy, limiting it to only close relatives.
- c) The establishment of National and State Surrogacy Boards to regulate the practice and ensure the rights of all parties involved.
- d) Protection of the surrogate mother’s rights and safeguarding the child’s welfare.
According to the latest Surrogacy Bill of 2019 passed by Lok Sabha, commercial surrogacy has been prohibited, while altruistic surrogacy has been allowed. The primary reasons behind the ban on commercial surrogacy were to protect women from exploitation, prevent the sale and purchase of babies, and curb the illegal trade of human embryos. The bill states that the surrogate mother should be a close relative of the infertile couple. However, the exact definition of “close relative” is not explicitly provided, which may lead to some ambiguity in understanding the concept.
Legal Issues Related to Surrogacy in India
India has experienced several legal issues related to surrogacy, leading to the need for stricter regulations. Some key legal issues include:
1) Commercialization and Exploitation: The rapid growth of commercial surrogacy in India led to concerns about exploitation and unethical practices. There were instances of surrogate mothers being treated poorly, inadequate compensation, and the commodification of reproductive services.
2) Lack of Comprehensive Regulations: Prior to the introduction of the Surrogacy (Regulation) Bill, there was no comprehensive legal framework governing surrogacy in India. This led to a lack of clarity, inconsistent practices, and potential legal disputes.
3) Citizenship and Immigration: Surrogacy cases involving foreign intended parents created challenges regarding citizenship and immigration. The Indian government had to address issues related to granting citizenship to children born through surrogacy and ensuring their smooth travel to their intended parents’ home countries.
4) Legal Parentage: Determining the legal parentage of the child born through surrogacy in India was not always straightforward. There were cases where intended parents faced difficulties establishing their legal rights, leading to legal battles and uncertainty.
Judicial Perspective on Surrogacy in India
The Indian judiciary has played a crucial role in shaping the legal landscape of surrogacy in India. In several landmark judgments, the courts have addressed various legal aspects and provided guidance. Some significant judicial perspectives include:
- a) Protection of Surrogate Mothers’ Rights: The courts have emphasized the importance of protecting the rights and well-being of surrogate mothers. They have highlighted the need for informed consent, fair treatment, and adequate compensation for their services.
- b) Best Interest of the Child: The judiciary has consistently emphasized that the best interest of the child born through surrogacy should be paramount. This includes ensuring their welfare, legal parentage, and protection of their rights.
- c) Need for Legislation: The courts have repeatedly stressed the necessity of comprehensive legislation to regulate surrogacy and address the legal issues arising from its practice. They have called for clear guidelines to protect the interests of all parties involved.
Current Scenario of Surrogacy in India
the Surrogacy (Regulation) Bill, 2016, has not been enacted into law, leaving a legal vacuum in the regulation of surrogacy in India. However, there have been ongoing discussions and debates around the bill, with the government’s intention to ban commercial surrogacy and promote altruistic surrogacy.
In recent years, several Indian states, including Gujarat, Maharashtra, and Karnataka, have introduced their own regulations to govern surrogacy until the national legislation is finalized. These state-level regulations aim to provide some guidelines and protection for all parties involved in the surrogacy arrangements.
In India, surrogacy is practised by individuals or couples when there are orphaned children available for adoption. However, the adoption process for childless couples wanting to adopt these children is often complicated. Currently, there is no uniform adoption law that applies to all citizens regardless of religion or Indians residing in other countries. Consequently, many couples are compelled to turn to methods like IVF or surrogacy. It is crucial to simplify the adoption procedures to address this issue. Streamlining the adoption process would help reduce the reliance on surrogacy. Nonetheless, commercial surrogacy should be regulated and guided by appropriate laws to safeguard the rights of women and children. It is necessary to establish comprehensive legislation that covers existing loopholes and ensures the protection of these vulnerable groups.