Author- Shreya Jha, law student, Symbiosis Law School, Hyderabad
Introduction
The Surrogacy (Regulation) Act, 2021, received the acclamation of the President on December 25, 2021. The rules and regulations are checked by the National Assisted Reproductive Technology and Surrogacy Board and the State Assisted Reproductive Technology and Surrogacy Boards. The concept of Surrogacy started back in 1978 with the birth of Kanupriya, alias Durga, with the help of IVF. The step towards legalizing surrogacy was a colossal crossover because India is a country with copious ethnicity, religions, differences, and a blanket of conservatives. Legalized surrogacy was not enough to be implanted in such a way that it worked proficiently. Therefore, proper functioning is required of surrogacy centers, hospitals, pediatricians, gynecologists, embryologists, and registered medical practitioners; everyone should be registered under the National Assisted Reproductive Technology and Surrogacy Board and State Assisted Reproductive Technology Surrogacy Boards. The Surrogacy (Regulation) Act, 2021, which still acknowledges altruistic surrogacy as lawful, is introduced concurrently with this Act. Although the Acts eventually enforce existing laws, they also raise a variety of legal issues, such as rights, scientific breakthroughs, interstate surrogacy, liabilities, and moral conundrums. But there are still many cons to the Surrogacy Act, such as restricting people’s rights, loopholes, and proper clauses for the protection of the child born as well as the surrogate mother. The amended laws are flawed, which lets the wrongdoers get away from legal action. The Surrogacy Act may have come into existence from the West, and that’s why when it landed in our state, we changed it accordingly to meet the needs, taking into account that we must keep an ethical society, which is sometimes bombarded by conservative thoughts and views over surrogacy. These were some matters that were outspoken on a general basis, but when it comes to pen and paper, things are even more cursed than they appear.
Relationship with previous legislations
The union cabinet approved the surrogacy regulation bill on February 26, 2020, and it became law in January 2022. As a result, this measure has become a law that specifies the requirements to be met to become a surrogate parent. However, after it was enacted, the act received scathing treatment for not meeting the worries of its diverse participants. This law was passed to limit the use of surrogates for profit and to protect the interests of the fetus, but it also restricts the woman’s ability to control her reproductive process and her ability to become a parent. Concisely, India’s regulation of surrogacy has struggled to perceive an equilibrium between these opposing interests. The Surrogacy Regulation Act had certain legal issues, one of them being that it proscribed commercial surrogacy. Commercial surrogacy is when a surrogate mother continues to carry a child to term before giving the child over to the authorizing parents in exchange for something, especially money, rather than just covering medical costs and general liability during the pregnancy. However, under the law, as it stands, only altruistic surrogacy is permitted, and the surrogate must be hereditarily related to the intended parents. Such limitations would strip a female of their freedom in making conception choices and emphasize conventional communal values of women’s work in the private sphere having no commercial value. Prohibiting commercial surrogacy won’t be beneficial since there are a lot of women who have to some extent enhanced their lives by earning a satisfactory amount as surrogates; furthermore if done in a precise manner, commercial surrogacy can bring bliss to couples who are unable to conceive as well as supply financial support to the underprivileged women. But by prohibiting commercial surrogacy, the fundamental rights of women are violated since “the right to make reproductive choices is a fundamental right under Article 21 of the Indian Constitution. Reproductive choices like giving birth to a child are the right of a woman and are a matter of personal liberty”.
The ongoing flaws with this act include the fact that it mandates a man and a woman to be married for five years before they can go for surrogacy. This clause does not consider the reality of contemporary relationships. In today’s scenarios, couples who tend to marry quite late, in their thirties or even forties, and who may go for surrogacy due to the advancing age of the mother, where carrying a child would be a bit riskier since the fetus may not be easy to bear, must wait for 5 years to have a child through surrogacy, which is quite problematic and something the law is obstinate on. This requires the surrogate to be genetically related to the parents of the child, ignoring the fact that it could be difficult for people to advance a relative or a known woman to be the surrogate mother. As a result, couples tend to make use of illegal practices by going for commercial surrogacy. The infertile couple must resort to these restricted practices, and to suffer so much emotional trauma just for the sake of fulfilling their dream of parenting is quite disturbing and saddening. Leaving this aside, there are also many other legal obstacles concerning surrogacy in India, like ill-treatment of the surrogate, as there have been cases where the surrogate mother is said to be at risk of offensive sexual advances, not recompense, illicit selling of cells released from the female’s reproductive organ, etc. These assertions have given rise to threats to surrogacy, which stands as a helping hand for infertile couples, single parents, and people belonging to the LGBTQ+ community. Furthermore, the right to life also comes into the picture, as the only relationship between a surrogate and the child is that she is supplying her womb for delivering the child and giving it to the intended parents. This must be understood and made clear to the surrogate; if not, perhaps she would be interested in claiming the child belongs to her as well. Finally, the right to equality is an extremely critical right of an individual that shouldn’t be compromised. With surrogacy, the privileges to raise a child via contract are chartered with parents even before the process starts.
Ethical Problems
Surrogacy-related ethical difficulties have come up on many occasions. Arguments about surrogacy often break out between proponents and opponents of the practice. Supporters of surrogacy think that this medical procedure enables infertile couples to become parents. However, those opposed to surrogacy frequently express concerns about altruistic surrogacy and the payment of surrogate moms. Protesters against surrogacy claim that commercial surrogacy pushes women to work in this field not to serve others but rather to make a large lump sum of money. The level of pay raises ethical concerns as well. Debates opposing surrogacy are almost always primarily motivated by concerns for the child’s rights and the surrogate mother’s concerns. One should also be aware that not all reproductive facilities offer guaranteed programs. You will only be able to try a certain number of embryo transfers as a result. You will have to restart and invest in a second cycle if they are ineffective or the pregnancy is stopped; this occurs for no explicable reason even in extremely healthy women with strong embryos. Both monetarily and mentally, it is expensive. So give importance to fertility centers that provide programs with guarantees. They entail paying a certain fee in return for the birth of a child. That is, all treatments will be carried out repeatedly until a normal fetus and birth are achieved. In India, the governmental clinics deployed for officially practicing surrogacy are framed not to advertise anything about their work on surrogacy, so it makes it impossible for many couples to know if they are getting their service under the law or not. Still, people in the state see it with all the disgrace in society, believing in the tradition of being of the same blood and not adopting the fact that the child born has different blood. Science and tradition had their clashes with each other but have affected people gravely, dividing the groups in two, one following the traditions and the other being the servants of science. The government is raising issues about not displaying surrogacy in good faith but giving permission in secrecy because people are still unaware of the practice. Einstein once said, “Science without religion is lame; religion without science is blind.” Only if people and society embrace the science of surrogacy can it succeed. The best way to reap its benefits is to use it morally and without sacrificing human values. An in-depth discussion of the ethical, sociological, and emotional concerns generated by surrogacy techniques is provided in the essay. The reality, though, is that to have the best technology, a good balance must constantly be maintained.
Medical centers being a support these practices
Major agitation over the excessive and unethical use of commercial surrogacy, which is made possible by dishonest medical centers, is of utmost importance in a country with a rich cultural heritage like India. To grow the market and increase revenue, surrogacy has become a viable alternative to conventional assisted reproductive technologies, but there are concerns that it could get out of hand. Women may be forced to become surrogates by their spouses or families in underdeveloped nations like India, where indigence is a major concern. Situations like agreement violations committed by the intending couple or the surrogate mother must not be disregarded. The challenges should be managed according to relevant standards: In the absence of an external entity, problems such as the surrogate child’s well-being are at risk due to the unwillingness on behalf of the surrogate mother to deliver a child to the licensing parents as a result of the mother’s deep depression. Numerous ethical and social issues need to be resolved, including whether it corresponds to the sale of a child as well as whether denying the mother the child’s custody violates a bargain. The legislation must be strictly applied; otherwise, surrogacy would become a major tourist attraction in India. It is suggested that childbearing should be prohibited on moral grounds since it is stigmatized in societal structures and is compared with brothels. Contrary to human rights laws, surrogate moms are kept apart from households and only permitted to visit them on rare occasions.
Situation abroad
Surrogacy has faced problems in every country, whether it be a developed country or a developing country. Still, some countries have fewer complications and offer economical yet legitimized surrogacy to countless couples. One state where surrogacy is extensively governed by legislation is Ukraine. Coupled heterosexual couples with infertility issues may participate in the procedure if they give DNA (at least one member of the couple). Typically, the husband supplies the genetic material, and the female provides medical documentation to show pregnancy is either impossible or poses major health hazards. In Russia, both the corporate and charitable uses of surrogacy are covered by clear, comprehensive legal regulations. It is a nation with comprehensive medical assurances in conjunction with its monitoring and enforcement. The facilities are of very high caliber, and clients undergo special, individualized care. The laws governing surrogacy are consistent and peacefully developed in this area of law. Some states in the USA, but not all, have legalized surrogacy. In many of these states, the child’s fatherhood is validated judicially while the birth mother is pregnant since there is no surrogacy law in place (usually during the sixth month). The adjudicator bases their ruling on the parties’ understanding and the standards established by US courts (the Anglo-Saxon Common Law system). This makes picking the jurisdiction where surrogacy procedures will take place extremely important. With non-discrimination laws, same-sex marriage, and adoption, Canada is regarded as one of the most gay-friendly nations in the world. Canada was the first state to permit marital relationships between LGBT spouses from abroad and the fourth jurisdiction overall to legalize identical unions on a national level. Surrogacy is legal in all provinces and territories of Canada, except Quebec. Surrogacy is exclusively permitted in charitable initiatives, outlawing all trading transactions.
Conclusion
Surrogacy outsourcing is an unethical practice in India. In a thriving nation like India, where impoverishment is still a big issue, weaker spouses are compelled to suggest their wives become a surrogate as a means of generating revenue. The health of the pregnant woman is impacted, and the lengthy effects of several pregnancies are unknown. The ramifications of giving up the child at birth must be carefully considered, as must the clinical, mental, legal, and economic concerns. The impact on any current children, the prospective surrogate mother’s spouse, relatives, and acquaintances must also be considered.