This article has been written by Ms. SHREYA MISHRA, a 2nd year (BALLB) student of S.S. Khanna Girls Degree College, Prayagraj.
ABSTRACT:
This article explores the historical roots, legal aspects, and societal challenges of surrogate motherhood under Hindu marriages in India . From ancient narratives to recent legal development, significant case laws and challenges faced by surrogate women in Hindu marriages are discussed, calling for legislative reforms and societal awareness.
INTRODUCTION:
Marriage, a universal social institution, linked with the family structure, serves as the backdrop against which the complexities of surrogacy unfold. Rooted in socio-legal manifestations, marriage encompasses the fundamental objectives of procreation, sexual fulfillment, and religious significance. However, the poignant reality surfaces for infertile couples grappling with unfulfilled desires for parenthood. Childlessness, a prevalent challenge, not only impacts marital harmony but permeates societal spheres.
In the Indian society, a woman’s role as a successful wife has traditionally hinged upon her ability to bear children, a testament to her husband’s masculinity and reproductive prowess. The societal value placed on fertility as a determinant of familial power distribution underscores the profound influence of these dynamics. While natural conception and adoption have been historical avenues for building families, the advent of surrogacy introduces a nuanced exploration of genetic connections, reshaping the contours of parenthood dreams
Surrogate motherhood, a compassionate act rooted in selflessness, is a process where a woman carries and nurtures a child on behalf of another individual or couple. At its core, it holds the profound essence of empathy and shared dreams.. The significance of surrogate motherhood extends far beyond the biological act of carrying a child. It is a profound demonstration of solidarity, breaking down barriers for those facing challenges in conceiving naturally. This act of generosity not only fulfills the dreams of aspiring parents but also fosters a unique bond between the surrogate mother and the intended family. In a world where compassion is a precious commodity, surrogate motherhood stands as a beacon of hope and unity. It exemplifies the capacity of individuals to come together, driven by shared aspirations and a collective desire to bring the joy of parenthood to those who may have otherwise been denied this blessing. The significance lies not only in the creation of life but in the creation of a tapestry woven with threads of compassion, resilience, and the unwavering belief in the beauty of human connection.
The way people see surrogacy in Hindu societies has changed over time. In the past, it wasn’t widely accepted because of traditional beliefs that emphasized blood relations. People were unsure about using surrogacy to have a child. As time passed, things shifted. Medical advances and a more open mindset made people more accepting. Infertility became a common problem, and surrogacy started being seen as a practical solution rather than something strange. Movies, books, and media also played a role. Sometimes they showed surrogacy in a positive light, emphasizing the emotional side and the ethical aspects. This helped people see it in a different way. Today, things are still changing. As people become more aware and open-minded, surrogacy is gradually becoming more accepted in Hindu communities. It’s not just about having a child; it’s also about adapting traditions to fit the needs of families today. The journey of surrogacy in Hindu societies shows how things can evolve over time. This article deals with the multifaceted areas of surrogacy, examining its historical roots, legal and societal implications.
MEANING:
The term ‘surrogate’ finds its linguistic origin in the Latin word ‘surrogatus,’ denoting a substitute appointed to act in another’s place. At the heart of reproductive dynamics, a surrogate mother assumes a crucial role, shouldering the noble responsibility of carrying a child on behalf of another woman—from her own ovum or the implantation of a fertilized egg.
A standard definition of ‘surrogacy’ is offered by the American law report in the following manner;
“.. a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights after the child’s birth”
HISTORICAL PERSPECTIVES ON SURROGACY IN HINDU CULTURE:
Surrogacy has found its roots in india from very ancient time. From the emergence of Brahma, from Vishnu’s navel to the creation of mind-born sons. In manusmriti there is a mention of a shloka(verse)-
Putreṇa lokānjayati pautreṇānantyamaśnute,
atha putrasya pautreṇa bradhnasyāpnoti viṣṭapam.
“It states that the production of a son was a dire necessity of a couple. It says that through a son, a man conquers the world, through son’s son he obtains immorality but through his grandson’s son he gains the world of Sun. It is also believes that a son delivers his father from hell called Put, he is therefore known as Putra by self existence himself” .
In the Bhagavata Purana, there is mention of a incident of the saga of King Kansa. A tyrant ruler of Mathura, Kansa orchestrated the exchange of fully grown embryos between the wombs of two mothers. Locked in a prison cell, his sister Devaki faced a dire prophecy, leading to the ruthless elimination of her progeny. The seventh pregnancy saw the divine intervention of Vishnu, orchestrating the transfer of the fetus from Devaki to Rohini, Vasudev’s other wife, establishing Rohini as the surrogate mother of Balaram. The Bhagavad Gita further unfolded the miraculous birth of Lord Krishna without a conventional sexual union.
Another remarkable instance involved the birth of God Kartikeya through surrogacy, where Lord Shiva and Goddess Parvati entrusted the womb of the surrogate mother Ganga with a divine bija. Miraculous births adorned the epics, such as the birth of Rama and his brothers, facilitated by a sage’s magical pudding in the Ramayana. In the Mahabharata, surrogacy and unconventional fatherhood took center stage, from Sage Vyas aiding Queen Satyavati to Kunti’s use of mantras for niyog.
The narratives went beyond conventional norms, showcasing instances like Gandhari’s gestation of 101 children from a lump of flesh, revealing an ancient concept reminiscent of test-tube babies. Even unmarried Kunti, through a boon from Sage Durvasha, invoked gods for niyog, demonstrating the flexibility of family creation in exceptional circumstances.
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LEGAL LANDSCAPE:
LEGAL FRAMEWORKS GOVERNING SURROGACY IN INDIA
India’s journey in regulating surrogacy has witnessed significant developments over the years. The absence of a comprehensive legal framework led to the legalization of commercial surrogacy in 2002, turning India into a global hub for surrogacy. However, the lack of regulation prompted the Indian Council for Medical Research (ICMR) in 2005 to draft guidelines that aimed to ensure ethical practices and protect the rights of all parties involved.
The legal landscape continued to evolve, with the Supreme Court’s affirmation of the legality of commercial surrogacy in the “Baby Manji Yamada vs Union of India” case. This coincided with the introduction of the Assisted Reproductive Technology Bill in 2008, though subsequent steps were slow to follow.
The Law Commission of India took up the issue of surrogacy in 2009, providing valuable insights for further research. In 2010, the ICMR revised its guidelines, emphasizing the importance of a legal agreement between surrogate mothers and intended parents before commencing the surrogacy process.
The economic scale of India’s surrogacy industry, estimated at $400 million annually with over 3,000 fertility clinics, came to light in a 2012 UN study. Subsequently, in 2015, the government imposed a complete ban on commercial surrogacy, barring foreign nationals from participation.
The Surrogacy Regulation Bill of 2016 aimed to address the lacunae in surrogacy laws. However, it faced delays and underwent significant changes, leading to the introduction of the Surrogacy (Regulation) Bill, 2019. This bill, passed in Lok Sabha, underwent further scrutiny and recommendations by a selected committee in Rajya Sabha in 2019.
The Surrogacy (Regulation) Bill, 2020, marked a paradigm shift by imposing a complete ban on commercial surrogacy. Only altruistic surrogacy was permitted, wherein surrogate mothers would receive compensation solely for medical expenses and insurance coverage. The bill introduced eligibility criteria for couples, extended insurance coverage, mandated certificates of eligibility and essentiality, and prohibited the selection of a child based on gender or the rejection of a child due to disabilities.
Furthermore, the bill proposed the establishment of National and State Surrogacy Boards to advise the government and supervise surrogacy clinics. Offenses under the bill carried severe penalties, including fines and imprisonment.
CASE LAWS RELATED TO SURROGACY IN INDIA:
In the case of Suchita Srivastava vs Chandigarh Administration, the court asserted that the right to make reproductive choices falls within the realm of personal liberty guaranteed by Article 21. This includes a woman’s entitlement to decide whether to carry a pregnancy to its full term. The court recognized these rights as integral components of women’s right to privacy, dignity, and bodily integrity.
Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors is a significant case in which the court held that requiring couples to obtain a ‘certificate of infertility’ from the district medical board violated the right to privacy. This right was acknowledged as a fundamental right that needed protection.
The case of Baby Manji Yamada vs Union of India involved a Japanese couple who had their child through surrogacy in India. However, the couple separated before the child’s birth, creating a complex legal situation as both Japan and India had regulations affecting the child’s future. The Supreme Court intervened, allowing the child to leave the country with her grandmother. This case prompted the government to consider regulating surrogacy.
In Jan Balaz vs Anand Municipality, the Gujarat High Court ruled that the surrogated child’s birth certificate should carry the name of the surrogated mother. In return, the biological parents would be granted Indian passports for the child. The child was intended for adoption by a German couple. Although an appeal was filed in the Supreme Court, the case is still under consideration.
CHALLENGES FACED BY SURROGATE WOMEN IN HINDU MARRIAGES:
Surrogacy, while offering a ray of hope for childless couples, presents a myriad of challenges for the surrogate women involved, particularly in the context of Hindu marriages. The challenges can be broadly categorized into the following dimensions:
A .Lack of Comprehensive Legal Protection:
One of the primary challenges faced by surrogate women in Hindu marriages is the inadequacy of comprehensive legal protection. While there have been attempts to regulate surrogacy in India, the legal framework often falls short of providing robust safeguards for the rights and well-being of surrogate mothers. Ambiguities in the legal landscape can leave these women vulnerable to exploitation, unclear contractual agreements, and inadequate compensation. There is a pressing need for legislation that clearly defines the rights and obligations of all parties involved, ensuring fair treatment and protection against potential abuses.
- Exploitative Practices and the Need for Ethical Guidelines:
The commercialization of surrogacy in Hindu marriages has, in some instances, led to exploitative practices. The lack of stringent ethical guidelines exposes surrogate women to the risk of being subjected to unfair treatment, both medically and financially. In the absence of a well-defined code of ethics, there is a potential for surrogate women to be pressured into unfavorable agreements or to undergo medical procedures without adequate information or consent. Establishing and enforcing ethical guidelines is crucial to maintaining the dignity and rights of surrogate women and preventing their exploitation within the surrogacy process.
- C. Social Stigma and Its Impact on Surrogate Women’s Well-being
Surrogate women in Hindu marriages often grapple with social stigma attached to their involvement in the surrogacy arrangement. Traditional societal norms and perceptions surrounding motherhood can lead to judgment and isolation for these women. The emotional toll of carrying a child for another couple while facing societal disapproval can significantly impact their mental well-being. Addressing and challenging these societal stereotypes is essential to creating an environment where surrogate women are respected, supported, and shielded from the detrimental effects of social stigma.
EMPOWERING SURROGATE WOMEN:
In the realm of surrogacy within Hindu marriages, it is important to make a transformative journey that empowers surrogate women and upholds their rights. This begins with a resounding call for legislative reforms, urging policymakers to craft comprehensive laws that safeguard the well-being of surrogate mothers. Simultaneously, there is a need to advocate for ethical surrogacy practices embedded within the cultural framework of Hindu marriages, ensuring fair treatment, transparency, and just compensation. Breaking free from societal stereotypes demands a concerted effort to raise awareness about the noble and selfless act of surrogate motherhood, fostering an environment of understanding and acceptance. Drawing inspiration from successful models, both nationally and globally, offers valuable insights into creating effective solutions while addressing challenges head-on. The story of Elizabeth Katkin , an advocate and author who openly shares her positive surrogacy experience, exemplifies how personal narratives can challenge societal norms surrounding motherhood. By amplifying such stories in the Indian context, we can combat social stigma and ensure that surrogate women are respected for their invaluable contribution.
CONCLUSION:
In context of Indian women who act as surrogates, there have been questions as to whether surrogacy is a form of exploitation or empowerment of women. This question is addressed by the Honourable Supreme Court of India which states that, “A woman has the right to make choices regarding her body and also the right of procreation under the right to life as guaranteed by Article 21 of the Constitution of India”..
The journey of surrogate motherhood is not a fleeting development; rather, it has traversed a considerable historical distance to arrive at its present position. The nuanced approach of the Supreme Court acknowledges the problems involved in surrogacy, recognizing the autonomy and agency of women in making decisions about their bodies and reproductive choices.
In the relm of surrogacy in India, it is crucial to embrace a perspective that acknowledges the diverse experiences and choices of women involved. By doing so, we can foster an environment that respects individual autonomy, upholds constitutional principles, and promotes a holistic understanding of the complex dynamics surrounding surrogate motherhood. In shaping the discourse on surrogacy, it is imperative to move beyond dichotomies and embrace a narrative that captures the essence of personal agency and empowerment within the realm of reproductive choices.
REFERENCES:
https://wbhf.walterbushnell.com/publications/fertility-blaze/item/351-surrogacy-the-indian-scenario
http://dlmssv.inflibnet.ac.in/bitstream/123456789/56/11/11_Chapter-II.pdf
https://www.brainboosterarticles.com/post/legal-analysis-of-surrogacy-in-the-indian-context
https://nhrc.nic.in/sites/default/files/Report_NHRC_Surrogacy_24122018.pdf