Commercial surrogacy is a type of surrogacy in which the surrogate mother is remunerated for her services. There is altruistic surrogacy in which women volunteer to become surrogate mothers without receiving any money. Altruistic surrogacy is mainly done by close friends and family members in which the women help their family carrying pregnancy without any monetary compensation. Commercial surrogacy simply put into easy words can be described as women accepting money in return for being a surrogate mother for their child.
Commercial surrogacy was legalized in India in 2002 and the main purpose is to promote medical tourism and after legalizing commercial surrogacy India has become the hub of surrogacy. In the CII report of 2012, the size of the surrogacy industry has become 2 billion, and more than 3,000 fertility clinics were engaged in India.
The Surrogacy Regulation Bill 2019, was passed to allow altruistic surrogacy and ban commercial surrogacy in India.If a couple wants an altruistic surrogacy, then the couple needs to be married for 5 years and the LGBTQ+ family, unmarried couple, and foreign couple is not allowed to seek surrogacy. The age required to become a surrogate mother is 25- 35 years and she can surrogate once. If a foreign couple wants to come to India for surrogacy, then no visa is provided to them. If any visa is issued to the foreign couple before this bill is passed then the visa may be cancelled and this information will be given to them. If the surrogacy process is already started then they are allowed to complete the surrogacy process but this case is in the hand of the state Health Authorities. The State Health Authorities will decide whether surrogacy should allow or not.The surrogacy agreement is that in which the surrogate mother gives her free consent to become a surrogate and this is valid in India under the provision of the Indian Contract Act, 1872.
In the landmark case Baby Manji Yamada V. Union of India a Japanese couple, Dr Ikufumi Yamada, and his wife desired to have a baby but they couldn’t conceive one. The couple then entered into a contract with an Indian woman.The infant was born out of the Japanese man and the Indian woman.However the couple went through a matrimonial discord and the father wanted the custody of the child but he couldn’t adopt a girl child as a single father according to Indian law. The petition was filed in the Supreme Court and it directed that the National Commission for protection of Child Rights should solve this issue. It was held by Justice Arijit PasShriya Misras the father has the custodial right towards the child. In this case, the Government provided a passport to Baby Manaji Yamada, and then she was given to her grandmother(father’s mother) and as per the Supreme Court, the surrogacy agreement was held valid in India.
In the case of Balaz v. Anand Municipality, a German couple who wanted to become parents but due to some medical issue, they couldn’t conceive so they came in contract with Marthaben Immanuel, an Indian to become a surrogate for their child. It must be noted that Germany doesn’t accept surrogacy.Anyhow after the agreement she gave birth to twins. The surrogate children required an Indian passport to travel. The Supreme Court of India didn’t relinquish the passport but gave permission to the children to exit. The judges ,Justice G.S. Singhvi and Justice C.K. Prasad said that every surrogate should live a good life and no surrogate child should be left without parents. Consequently the German authorities also permitted the couple to keep the children.
Surrogacy has been adopted since ancient times, there was no technology at that time but various traditional surrogacy programs were implemented. But poor women still continued to surrogate to improve their family financial situation. Sadly these surrogate mothers also develop a feeling of attachment to the fetus. Also, many cases show that after surrogacy the child and parents have to face many problems. Positive reproductive rights should be given to women so that they can feel secure when it comes to making decision regarding reproduction. If a couple wants surrogacy ,the surrogate must give her consent and then a legal counsel is required in order to form contractual obligations . And above all altruistic surrogacy must be promoted.
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