This article has been written by Ms. MAHANKALI LIKITHA, a 5th year student of KLEF College of Law (KLEF Deemed to be University), Guntur district, Andhra Pradesh.

ABSTRACT

This comprehensive article explores the multifaceted dimensions of surrogacy in India, encompassing legal, medical, and emotional considerations. India has emerged as a prominent destination for surrogacy, offering advanced medical infrastructure and ethical practices. The legal landscape permits altruistic surrogacy, prioritizing the well-being of all parties involved. The historical roots of surrogacy in India are traced, highlighting its deep-seated cultural acceptance. The surrogacy process involves meticulous documentation, medical screenings, and legal agreements. Various types of surrogacy are outlined, emphasizing ethical practices. The article delves into the eligibility criteria for intended parents and surrogates, underscoring the importance of a trustworthy surrogacy agency. Legal formalities, medical procedures, and post-birth considerations are elucidated, emphasizing transparency and emotional support. The intersection of legal and medical aspects ensures a structured and ethical framework for this transformative journey, ultimately realizing the shared dream of parenthood.

• INTRODUCTION

Surrogacy, a multifaceted reproductive alternative, offers hope to individuals or couples encountering challenges in conceiving a child. Notably, India has risen as a prominent destination for surrogacy in recent years, leveraging its advanced medical infrastructure, seasoned professionals, and cost-effectiveness.

The legal landscape of surrogacy in India is crucial to understanding the procedure. The country permits altruistic surrogacy, wherein the surrogate mother is not compensated beyond medical and other reasonable expenses. Commercial surrogacy, however, is prohibited for foreign nationals, preventing exploitation and ensuring ethical practices.

Medical processes in Indian surrogacy involve a rigorous screening of both intended parents and surrogate mothers to ensure physical and emotional well-being. The established medical facilities in the country adhere to international standards, offering in vitro fertilization (IVF) and embryo transfer with high success rates.

Emotionally, surrogacy involves delicate considerations. Open communication between intended parents and surrogates is encouraged, fostering a supportive environment throughout the process. Mental and emotional well-being is prioritized for all parties involved, recognizing the profound impact of surrogacy on their lives.

In this article provides insight into the comprehensive procedure of surrogacy in India, navigating the legal, medical, and emotional dimensions. With a robust framework and commitment to ethical practices, India stands as a promising destination for those seeking the transformative journey of surrogacy.

• MEANING AND CONCEPT OF SURROGACY

Surrogacy represents a remarkable stride in scientific advancement, utilizing a woman’s womb to facilitate childbearing for another individual or couple. This innovative method serves as an effective solution for both biological and social infertility challenges. Couples grappling with the inability to conceive through artificial reproduction and in vitro fertilization find a ray of hope in surrogacy, which enables them to have a child genetically connected to them.

Increasingly, surrogacy has become an appealing option for those longing to experience biological parenthood. This globally recognized concept has evolved into a revolutionary avenue for individuals and couples, offering the prospect of having a child who shares their genetic makeup. Surrogate motherhood, seen as a blessing by those facing infertility issues, signifies a transformative hope for fulfilling the dream of parenthood.

The term ‘surrogate’ is derived from the Latin word ‘surrogatus,’ indicating a substitute or a person appointed to act on behalf of another. Traditionally, surrogate motherhood involves an agreement between a couple unable to conceive due to the wife’s infertility and a fertile woman. This arrangement entails the fertile woman conceiving the husband’s child through artificial insemination, carrying the pregnancy to term, and relinquishing all parental rights to the child.

• DEFINITIONS OF SURROGACY

According to Black’s Law Dictionary, ‘surrogate motherhood’ is described as an agreement wherein a woman consents to artificial insemination using the semen of another woman’s husband. 

The New Encyclopedia Britannica defines it as the practice where a woman carries a child for a couple, allowing them to conceive children in the conventional manner. 

In medical terms, surrogacy refers to the use of a substitute in place of the natural mother.

As per the ART Bill, surrogacy is specifically defined as an arrangement in which a woman commits to a pregnancy achieved through assisted reproductive technology. In this process, neither of the gametes belongs to her or her husband. The primary intention is to carry the pregnancy to term and then transfer the child to the person or persons for whom she is acting as a surrogate.

• TYPES OF SURROGACY

Surrogacy is a reproductive arrangement where a woman (the surrogate) carries and delivers a child for another person or couple (the intended parents). There are distinct types of surrogacy, each with its own set of procedures and ethical considerations:

1. Traditional Surrogacy: This method involves the insemination, either natural or artificial, with the sperm of the intended husband or donor sperm, fertilizing the surrogate mother’s eggs. However, due to ethical complications arising from genetic relatedness to the surrogate mother, traditional surrogacy is not commonly practiced today.
2. Gestational Surrogacy: In this prevalent form of surrogacy, an embryo is created using the eggs and sperm of the intended couple or through donor gametes. The fertilization occurs outside the body in an infertility laboratory via in-vitro fertilization (IVF), and the resulting embryo is then implanted into the surrogate’s uterus. This process ensures that the child born has no genetic relation to the surrogate mother, making it a popular choice for international intended couples. Most agencies primarily focus on facilitating gestational surrogacy.
3. Altruistic Surrogacy: This form involves no monetary compensation for the surrogate mother beyond covering medical expenses and providing insurance coverage during pregnancy. The altruistic nature emphasizes support without financial gain.
4. Commercial Surrogacy: Contrastingly, commercial surrogacy entails undertaking surrogacy and associated procedures for financial benefit or rewards, often in the form of cash or other considerations. Typically, the benefits provided in commercial surrogacy extend beyond covering medical expenses and insurance.

For those seeking information on surrogacy, surrogates, gamete donors, in-vitro fertilization (IVF), and laparoscopy, a free consultation is available by booking an appointment through our provided application form.

• HISTORY OF SURROGACY IN INDIA

The historical roots of surrogacy in India reveal its long-standing role as a source of hope for infertile couples. Surrogacy, defined as the process wherein a woman carries a baby for others by transferring embryos or gametes created using the intended parents, has deep historical roots in the country, known in ancient times as Niyoya Dharma.

In the ancient Indian narrative, a notable instance is found in the tale of Devki and Vasudev, where the seventh child, Balram, was transferred into the womb of Rohini, Vasudev’s first wife, while still an embryo. This practice was undertaken to safeguard the baby from the threat of being harmed by Kansa. Another historical account in the Mahabharata involves Gandhari, who delivered a mass after an extended two-year pregnancy. Rishi Agyasa discovered that this mass contained 101 cells, which, when placed in a nutrient medium, grew outside the womb, resulting in the development of 100 male babies known as Kauravas and a female body named Dushala.

Furthermore, the birth of Kartikey, often revered as the god of fertility, is cited as another example of surrogacy in ancient times. Kartikey was born through the surrogacy process involving Shiva and Ganga, with Ganga serving as the surrogate mother.

These historical instances demonstrate that surrogacy was not only present in ancient India but also coexisted harmoniously with socio-religious norms. The historical backdrop underscores the enduring nature of surrogacy as a method to address infertility concerns and fulfill the aspirations of couples seeking to build a family.

• LAWS OF SURROGACY IN INDIA

The legalization of Commercial Surrogacy in India in 2002 marked a turning point, meeting the rising demand from infertile couples unable to conceive biologically. The surge in both national and international demand positioned India as the global hub for surrogacy, attributed to a well-established framework and legislation. The Indian Council for Medical Research (ICMR) introduced guidelines in 2005, lacking an accompanying Act for governance.

The legal landscape saw a pivotal moment in the “Baby Manjhi Yamada vs Union of India” case, where the Supreme Court affirmed the legality of commercial surrogacy in India. This development coincided with the initiation of the “Assisted Reproductive Technology Bill” in 2008, though parliamentary steps were not taken. In response, the Law Commission of India took up the matter for further research, culminating in a report on surrogacy legislation in 2009.

In 2010, ICMR revised guidelines, introducing a legal agreement between intended parents, surrogate mothers, and ART clinics before embarking on the surrogacy process. The Ministry of Health and Family Welfare proposed amendments to the draft Act Bill. However, in 2012 UN study exposed the economic scale of the Indian Surrogacy Industry, amounting to 400 million dollars annually, with over 3000 fertility clinics across the country.

In 2015, the Indian government imposed a ban on commercial surrogacy, restricting participation to Indian married infertile couples. The “Surrogacy Regulation Bill” received approval in 2016, exclusively catering to the needs of Indian couples. Although different from the 2014 version, the 2016 Bill faced delays in the Rajya Sabha. Consequently, a replica, the “Surrogacy (Regulation) Bill, 2019,” was reintroduced in the Lok Sabha, emphasizing the protection of women vulnerable due to their financial circumstances. This bill was passed by the Union Cabinet as a crucial step in regulating surrogacy in India.

• SURROGACY PROCESS IN INDIA

The surrogacy process in India has gained popularity due to its affordability and advancements in medical interventions. While it’s crucial to consult a legal practitioner for specific guidance, the general surrogacy procedure in India involves several key steps.

1. Documentation: Intended parents must meet government criteria, submitting essential documents such as medical records and legal agreements with the surrogate mother. This step ensures eligibility and adherence to legal requirements.
2. Finding a Suitable Surrogate: Surrogate selection can occur through agencies or fertility clinics. Typically, surrogate mothers receive financial incentives, turning surrogacy into a profession.
3. Medical Screening: Both the surrogate mother and intended parent undergo thorough medical and psychological screenings to ensure fitness for the surrogacy process.
4. Legal Agreements: Government-endorsed legal agreements are established between parties, delineating roles, responsibilities, and financial arrangements to prevent future conflicts.
5. Cultured Embryo Transfer: Following alignment of all aspects, the surrogate undergoes necessary treatments alongside the intended parent. Harvested eggs are fertilized by the biological father to create a healthy embryo, with one to two selected embryos implanted in the surrogate’s uterus.
6. Pregnancy Period: The surrogate undergoes routine check-ups throughout the pregnancy, ensuring a healthy gestation and minimizing complications.
7. Delivery: After the surrogate delivers the baby, a legal process initiates the transfer of paperwork to establish the intended parents’ legal status. This includes legal agreements, the baby’s birth certificate, and other requisite documentation.

1. WHO CAN OPT FOR THE SURROGACY PROCESS IN INDIA

Many couples aspire to experience a natural birth, yet various circumstances may make it impractical. Reasons include the absence of a uterus, unexplained uterine abnormalities, repeated unsuccessful in vitro fertilization (IVF) attempts, medical conditions discouraging pregnancy, and individuals who are single or in same-sex partnerships. In these instances, surrogacy emerges as a viable solution, providing hopeful couples with the opportunity to realize their dreams of parenthood by facilitating the birth of a child through the assistance of a surrogate.

• ELIGIBILITY CRITERIA

The eligibility criteria for participants in a surrogacy arrangement are carefully defined to ensure the well-being of all parties involved.

1. Intended Parents:

For intended parents, age considerations typically range between 23 and 50 years. A comprehensive medical examination is a prerequisite, evaluating both physical and mental fitness. This scrutiny ensures that the prospective parents are capable of undertaking the responsibilities associated with the surrogacy process. Marital status is not a limiting factor, welcoming both married couples and single individuals to pursue surrogacy as a viable option for building their families.

1. Surrogate:

Surrogates, on the other hand, are generally selected within the age bracket of 21 to 35 years. Rigorous health screening is imperative, emphasizing both physical and mental well-being to ascertain the surrogate’s fitness for the surrogacy journey. Another crucial aspect is the surrogate’s reproductive history, requiring a successful prior pregnancy to demonstrate her ability to carry a pregnancy to term. This criterion ensures the surrogate’s experience and capability to navigate the challenges associated with gestational surrogacy, providing a reassuring foundation for the entire process. The meticulous selection and evaluation of both intended parents and surrogates contribute to the ethical and responsible practice of surrogacy.

• FINDING A SURROGACY AGENCY

Embarking on the journey of surrogacy involves a meticulous process in finding a trustworthy surrogacy agency, and the following steps are essential for a well-informed decision.

1. Research and Recommendations:

Conducting thorough research is the initial phase. Utilize online resources to explore reputable surrogacy agencies in India. Seek recommendations from medical professionals, such as fertility specialists, and connect with support groups where individuals share their surrogacy experiences. This multifaceted approach ensures a comprehensive understanding of the agencies available.

Once potential agencies are identified, the next step involves a detailed evaluation. Scrutinize the agency’s track records, assessing success rates and reviewing client testimonials to gauge the overall satisfaction of previous clients. This step is crucial in establishing the agency’s credibility and reliability in facilitating successful surrogacy journeys.

1. Legal Consultation:

Legal consultation is paramount in navigating the complex legal landscape of surrogacy. Seek advice from legal experts who specialize in reproductive law to comprehend the legal implications and understand the rights and responsibilities of all parties involved. Clear communication and transparency are essential in this phase to ensure that all legal aspects are addressed comprehensively.

Additionally, during legal consultations, it is imperative to clarify financial arrangements, including compensation for the surrogate and agency fees. Understanding the financial aspects upfront helps in making informed decisions and prevents potential conflicts later in the surrogacy process. Overall, a combination of thorough research, recommendations, and legal consultations forms a robust foundation for selecting a surrogacy agency that aligns with the needs and expectations of intended parents.

• MEDICAL EVALUATION AND SCREENING

The medical evaluation and screening process for both intended parents and surrogates is a critical component of a successful surrogacy journey, ensuring the well-being of all parties involved.

 

1. Intended Parents:

For intended parents, the process begins with a fertility assessment. This evaluation helps determine the specific reasons for pursuing surrogacy, identifying any fertility challenges that may necessitate this reproductive alternative. Additionally, if the intended parents plan to use their genetic material, genetic testing may be recommended. This testing assesses the presence of potential hereditary issues, offering valuable insights into the overall health and genetic compatibility of the intended parents.

1. Surrogate:

Surrogates undergo a comprehensive health checkup as part of their medical evaluation. This thorough examination includes tests for infectious diseases to ensure the surrogate’s physical well-being and eligibility for the surrogacy process. Beyond physical health, a crucial aspect of the screening involves a psychological evaluation. This assessment aims to gauge the surrogate’s mental preparedness for the emotional aspects of surrogacy, confirming her ability to navigate the unique challenges associated with carrying a child on behalf of the intended parents.

In essence, these medical evaluations and screenings play a pivotal role in creating a safe and healthy environment for the surrogacy process. They provide the necessary foundation for informed decision-making and contribute to the overall success and well-being of both the intended parents and the surrogate.

1. LEGAL FORMALITIES

Legal formalities in surrogacy are crucial to establishing a clear framework and protecting the interests of all parties involved.

1. Surrogacy Agreement:

The surrogacy agreement, a foundational document, undergoes a meticulous drafting process. This comprehensive agreement delineates the rights, obligations, and expectations of the intended parents and the surrogate. It serves as a legally binding contract, outlining the responsibilities each party holds throughout the surrogacy journey. To ensure equitable representation, legal counsel is sought by each party. This step is essential in guaranteeing that individual rights and interests are safeguarded, and the agreement aligns with legal standards and regulations.

1. Consent:

In the context of consent, informed consent plays a pivotal role. All parties involved, including the intended parents and the surrogate, provide explicit and informed consent. This formal acknowledgment signifies a thorough understanding and acceptance of the terms and conditions stipulated in the surrogacy agreement. The emphasis on legal documentation and consent is integral to fostering a transparent and ethically sound surrogacy process.

• MEDICAL PROCEDURES

The medical procedures involved in surrogacy predominantly revolve around the intricate process of In Vitro Fertilization (IVF).

1. In Vitro Fertilization (IVF):

In the initial phase of IVF, ovum and sperm collection occur. Eggs are retrieved from the intended mother or a donor, and sperm is collected from the intended father or a sperm donor. In a laboratory setting, these collected components are skillfully combined, fostering the creation of an embryo through fertilization.

1. Implantation:

The subsequent step is the critical process of implantation. The developed embryo is delicately transferred into the uterus of the surrogate, initiating the gestational phase of the surrogacy journey. Following this pivotal step, the surrogate undergoes regular medical checkups for diligent monitoring of the pregnancy’s progress. These checkups serve to ensure the surrogate’s well-being and the optimal development of the embryo, contributing to the overall success and health of the surrogacy process.

• PREGNANCY AND BIRTH

The journey through pregnancy and childbirth in surrogacy involves several key elements to ensure a supportive and well-organized process.

1. Prenatal Care:

During the prenatal phase, the surrogate receives meticulous prenatal care, including regular medical checkups and emotional support. These comprehensive checkups aim to monitor the surrogate’s health and the developing fetus, promoting a healthy pregnancy experience. Depending on the arrangement, intended parents may actively participate in the pregnancy, attending medical appointments and fostering a bond with the surrogate, enhancing the collaborative nature of the surrogacy journey.

1. Childbirth:

As childbirth approaches, a detailed delivery plan is discussed and agreed upon in advance. This plan outlines the roles and expectations of all involved parties during childbirth. Legal documentation is a critical component immediately upon the child’s birth. This documentation is meticulously completed to establish and formalize the intended parents’ legal rights to the child, ensuring a smooth transition and legally recognized parentage following the surrogacy process.

• POST-BIRTH PROCEDURES

The post-birth procedures in surrogacy encompass essential legal and emotional aspects to ensure a smooth transition for all parties involved.

1. Legal Formalities:

Legal formalities commence with the issuance of the birth certificate, bearing the names of the intended parents. This legal document solidifies the parentage and lays the foundation for the child’s legal identity. Subsequently, the intended parents initiate the process of obtaining a passport and citizenship for the child, further establishing their legal rights and responsibilities.

1. Emotional Support:

Emotional support is a paramount consideration during the post-surrogacy phase. Counseling services are offered to all parties involved, assisting them in navigating the emotional aspects of the surrogacy journey. Intended parents actively engage in bonding with the child, fostering a meaningful connection. Ongoing communication with the surrogate may also be facilitated, providing a supportive environment for all individuals as they navigate the complexities of post-surrogacy emotions and relationships.

CONCLUSION

Embarking on surrogacy in India entails a comprehensive and meticulous process, weaving together legal, medical, and emotional dimensions. Prospective parents should approach this transformative journey with meticulous planning, emphasizing the importance of seeking guidance from reputable surrogacy agencies and legal professionals. The intersection of legal and medical considerations ensures a structured and ethical framework for the surrogacy process. It is essential to recognize that while surrogacy offers hope for individuals grappling with infertility, a paramount focus must be placed on safeguarding the well-being and rights of all parties involved. Prioritizing transparency, communication, and ethical practices contributes to a positive surrogacy experience, fostering a supportive environment for intended parents, surrogates, and the child, ultimately culminating in the realization of the shared dream of parenthood.

 

REFERENCES

file:///C:/Users/HP/Downloads/COMMERCIALIZATION_OF_SURROGACY_IN_INDIA.pdf 

file:///C:/Users/HP/Downloads/SSRN-id3726683.pdf 

Surrogacy in India: From Conception to Birth within Legal Boundaries | Birla Fertility & IVF

Surrogacy Process – The 6 Steps of Surrogacy | Surrogate.com

Surrogacy process in India | Fertilityworld

Surrogacy In India (legalserviceindia.com)

What is surrogacy? – What is it and How it Works? (fertilitydost.com)

Surrogacy Process Steps in India – Raipur IVF Centre

https://www.medicoverfertility.in/blog/surrogacy-process-in-india