December 27, 2023

Surrogacy and Hindu marriage laws

This article has been written by Ms. Hitika Agrawal, a Second-year student of National Law Institute University, Bhopal.

INTRODUCTION

Every other couple in the world wants to have offspring of its own but due to some unforeseen circumstances, their wish to be a parent does not get fulfilled. Different types of health-related problems can be a reason for this like male infertility, problems in the uterus that can be related to weak ovaries, and many others. Through the advancement in technology in the field of artificial reproductive procedures there is an alternative present in the form of surrogacy. Surrogacy is a method in which the surrogate mother bears the child in her womb and after the delivery of the child gives it to the intending couple. Surrogacy has helped many couples fulfill their wish for parenthood and is now a practice that is not unheard of. Earlier surrogacy was unregulated and various malpractices and mistreatment was done to ensure that this was stopped a legislature named Surrogacy (Regulation) Act 2021 and Assistive Reproductive Technology (Regulation) Act 2021 (ART Act) were passed. While the first law specified the criteria for the “intending couple” and “surrogate mother” many other regulating provisions are mentioned while the ART Act deals with the regulation and supervision of assistive reproductive clinics and banks. Although these laws were brought to regulate the surrogacy practice, they are not free from loopholes which are very much evident. We have to see whether the two acts will succeed in their aim or not.

 

TYPES OF SURROGACIES

There are two types of surrogacies based on genetic relationships. They are:

  1. Traditional surrogacy: In this kind of surrogacy, the intending father’s sperm is artificially inseminated, and the surrogate mother utilizes her own eggs to give birth. This means that the child is genetically related to the surrogate mother and after delivery, the child which is her biological child has to be given to the intending couple.
  2. Gestational surrogacy: In this type of surrogacy through the use of In Vitro Fertilization (IVF) the embryo is formed by using the eggs and sperms of the intending couple and after the embryo is formed it is inserted in the uterus of the surrogate mother. In this way, the surrogate mother is not the biological mother of the child and will create fewer problems in the future regarding the rights of the surrogate mother over the child. This is the only method that is legal in India.

While based on payment there are 2 types:

  • Altruistic surrogacy: This type of surrogacy is only allowed in the surrogacy act. In this, there are no monetary expenses given to the surrogate mother apart from regular medical expenses during the pregnancy and insurance coverage for the surrogate mother. This is generally done not for money making.
  1. Commercial surrogacy: In this, there is additional payment apart from the medical expenses that occur due to pregnancy or other prescribed expenses in the act. This includes the purchase and sale of human embryos for surrogacy. This is not allowed in India.

 

HISTORY OF SURROGACY IN INDIA

Earlier surrogacy was not regulated in India which caused various problems. The absence of legislation caused a rampant increase in surrogacy clinics and the exploitation of surrogate mothers also increased as the women were mostly in abject poverty and illiterate. Earlier even cross-border surrogacy was also allowed which caused a series of problems like the foreign couple refusing to take the baby with them. Commercial surrogacy was legal between 2002 to 2015 which caused a lot of problems as a large number of surrogacy clinics opened which were not even having certificates for running them. This caused a rise in the commercialization of surrogacy and increased the exploitation of poor and underprivileged women. There was no data on how many births happened or who all availed the surrogacy procedure and this caused a serious problem. There were many problems like the couple may not accept the baby after delivery, may even change their mind before the delivery, refuse to accept if the baby might be mentally or physically challenged, etc. These types of malpractices were also highlighted in an Indian movie called “Mimi” which portrays how women faced problems earlier when there was no regulation of the surrogacy procedure. As surrogacy was not seen in a bright light the procedure was mostly done in secrecy and in poor conditions and for an even lesser sum than should be given. In 2005 some guidelines were given by the Indian Council for Medical Research to look into this matter but as they were directory in nature the impact was not that much. 

In the case of Baby Manji Yamada v. Union of India, the SC acknowledged the practice of altruistic and commercial surrogacy and even said that the intending couple can be a single male, a homosexual couple, or woman who does not want to go for pregnancy even though they are infertile. In another case, Jan Balaji v. Anand Municipality the court dealt with the problem of commercial surrogacy and how there was a need for clear laws for surrogacy in India and that the focus should be on the welfare of the child who often becomes the biggest victim in the surrogacy arrangements.

Due to these kinds of different problems that arose because of commercial surrogacy, the issue was raised and finally, a bill called Surrogacy (Regulation) Bill, 2016 was made after several amendments were made to it and was finally passed by both houses and along with it ART Act was also passed. Both acts aim to regulate the surrogacy procedure and the legal enforceability of the agreements so that the practice is not exploited. It is a matter of time whether the acts will prove useful and will curb the malpractices done in surrogacy.

 

SURROGACY (REGULATION) ACT 2021 AND ITS FEATURES

The current act imposes a complete ban on the practice of commercial surrogacy and allows only altruistic surrogacy. It also defines the qualifications of who can be an “intending couple” and “surrogate mother.” 

  • The bill provides for the formation of a regulatory body at the central level, at the state level named the National Surrogacy Board and State Surrogacy Board respectively, and other authorities at the Union Territories.
  • The bill also has provisions for surrogacy clinics regarding the minimum standard for physical infrastructure, diagnostic equipment, and professional staff.
  • The bill states that the intending couple shall be a married Indian couple and that the age of the male should be between 26 and 55 years and the women between 25 and 50 years. 
  • The intending couple needs to have two certificates before they can avail of surrogacy the certificate of eligibility and the certificate of essentiality which means that the couple is proven infertile.
  • The intending couple should be married for at least 5 years and should not have any living children biological, adoptive, or surrogate. In only case, this will not apply if the child has a mental or physical disability or has a condition that is likely to have the risk of causing death.
  • The term “intending women” will include an Indian widow or divorcee falling between the ages of 35 and 45 years.
  • The surrogate mother should be an ever-married woman between 25 and 35 years and should be having a child of her own. She can only once become a surrogate mother.
  • The bill also provides that the intending couple will provide insurance coverage for a period of 36 months to the surrogate mother which will include postpartum complications from a recognized insurance company or agent.

CHALLENGES TO THE ACT

Although the act was made to regulate the surrogacy procedure and to make it more transparent and safer the act is not free of challenges as there are provisions on which there is a debate that has sparked since the passing of the bill. The challenges are the following:

  • The fact that only a couple who is having some problem can go for surrogacy and not the case if the woman does not want to go through pregnancy or the surrogate woman can only be a surrogate once in her lifetime is considered to be violative of Article 21 of the Constitution as held in the cases of K.S. Puttaswamy v. Union of India and Suchita Shrivastava v. Chandigarh Admn. that women have the right to reproductive choices and that it is part of “personal liberty” under Article 21. 
  • The act also does not homosexuals to be eligible for surrogacy which is violative as held in the case of Navtej Singh Johar v. Union of India that sexual orientation is also part of privacy and any discrimination based on it is highly offensive to the individual. The Universal Declaration of Human Rights under Article 16 (1) states that men and women of full age have a right to have a family without any restriction due to race, ethnicity, etc.
  • The fact that the couple should be married means that the live-in couples cannot adopt this procedure. Live-in relationships are not illegal in India as held in various cases. A live-in relationship can even be considered at par with a valid marriage if certain conditions are fulfilled as held in the landmark case of D. Velusamy v. D. Patchaiammal regarding live-in relationships. So, the fact that the surrogacy act does not allow live-in couples to go for surrogacy is not reasonable as the courts have not termed them as illegal and have even recognized their status.
  • Even single males are kept outside the purview of the act even though they are allowed to adopt a child under the Hindu Adoption and Maintenance Act, of 1956. So, it is difficult to understand on what basis the classification is done and they are kept outside.
  • Single unmarried women are also not eligible under this act to avail of surrogacy and even to become a surrogate mother which is quite unreasonable as even under the Medical Termination of Pregnancy Act, of 1971 unmarried women have the right to abortion subject to some conditions. Article 21 is being violated as it deals with the right to life and it includes the right to reproductive choices as held by various courts.
  • As the act does not have provision for transgenders as the word men and women is used is violative of their rights. Article 14 which provides for equality before the law and equal protection of the law is violated as there is discrimination based on gender identity and sexual identity. Transgenders are given the status of “third gender” by the court in the case of National Legal Services Authority v. Union of India.

 

CONCLUSION

Parenthood has been a dream of every couple and the process of surrogacy can help in fulfilling this dream if there are some complications in having a child. The Surrogacy (Regulation) Act 2021 has two aims in mind namely to prevent the exploitation of women by regulating the procedure and to prevent the equation of surrogacy with renting of womb. While the intention is good and many provisions will fulfill these goals, some provisions are not well thought out and are violative of the rights of the people. While the state should make provisions for the welfare of the people the provisions should not be discriminating and inimical to others and violate their fundamental and legal rights. 

While the thought of curbing the unethical practices that were going on was very thoughtful yet instead of imposing a complete ban on commercial surrogacy, it should be regulated as it is known that there are very few women who will want to go for altruistic surrogacy as most of the women willing to be surrogates are from poor families. The complete ban is not something that is going to be of great success as has been the case with sex-determination tests and organ donations that have pushed the entire market underground and unregulated. Also, the discrimination and violation of Articles 14 and 21 when the bill implicitly outlaws, homosexuals, foreigners, single parents, unmarried couples, and live-in couples from availing services of surrogacy cannot be turned a blind eye to. 

The bill has prima facie some provisions that disregard the constitutionally guaranteed rights and the principles laid by the Supreme Court in various cases. There is a need for amendments to the act by keeping in mind the shortcomings, addressing the problems, and ultimately striking a balance between the rights of different stakeholders. The new changes need to take into account the changing social patterns and that they take into account the rights of all the people into account.

REFERENCES

Case laws:

  • Baby Manji Yamada v. Union of India., (2008) 13 SCC 518
  • Jan Balaji v. Anand Municipality., (2009) SCC Guj 3913
  • K.S. Puttaswamy v. Union of India 2017 10 SCC 1 
  • Suchita Shrivastava v. Chandigarh Admn 2009 9 SCC 1
  • Navtej Singh Johar v. Union of India 2018 10 SCC 1
  • D. Velusamy v. D. Patchaiammal 2010 10 SCC 469
  • National Legal Services Authority v. Union of India. 2014 5 SCC 438

Articles:

  • This article was originally written by Gaurang Narayan, Hara Prasad Mishra, Sahil Kumar, Nidhal A Amanullah, Tarun Kumar Suvvari, Ishika Mahajan, Smruti Sikta Mishra, and Mrinal Patnaik published on the National Institute of Health website. The link for the same is herein https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10199460/

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