• Author Name: Anupama Kumari Rai
  • Details:  Advocate, Bombay High Court, B.Sc, LLM



 

All we know that, from the ancient period motherhood is an instinct driven physiological phenomenon, Instinct of motherhood is the most powerful desire amongst all the desires of the living creatures including animals and human beings. According to ancient Indian philosophy, the biological purpose of life is to propagate once own genes, to transfer their genes to the next generation. Each living creature desires to be a part of this biological transition phase but sometimes they cannot fulfill their biological role of parenthood because of the infertility, which is a social stigma in India and inflicts devastating influence on life of an individual for their failure in fulfilling the biological role of parenthood.

There are different types of infertility, in some cases it would be physically or medically impossible, undesirable to carry a baby to term, hence surrogacy played an important role in fulfilling the desire of such infertile couples to have a child.

Surrogacy as we know is carrying pregnancy for intended parents. In Latin “surrogate “means “substitute” i.e. a person appointed to act in place of another. As per the Black’s law dictionary, “surrogacy” means process of carrying and delivering the childe of another i.e.  by giving womb on rent nurture the fertilized egg of another couple in your womb and give to the child with specific intention, which may be money, service or altruistic reason.

There are two types of surrogacy 

  1. Altruistic Surrogacy – in which surrogate mothers do not receive any financial rewards for her pregnancy or relinquishment   of child to genetic parents except medical expenses.
  2. Commercial Surrogacy – in which surrogate mothers get paid over and above medical expenses.

In India in year 2008, ‘The Manji Case’ underscored the need for  framework to regulate surrogacy in India, hence Assisted Reproductive Techniques(Regulations) Bill 2014came to an existence and rules stated that, any foreign couple must be a man or woman duly married and marriage should sustained at least 2 years. In recent years the number of foreign couples seeking legal & uncomplicated methods of parenthood has attracted to India because the cost of surrogacy in India is very less as compared to the other countries and it is the cheapest destination for intended parents.  The reason behind drastic attraction towards India for surrogacy by international intended clients was easy legal procedure and cheapest rate; poverty in India is the root cause for the booming of surrogacy in India. Overseas people find it very easy to rent a womb in India as many women earn their major part of livelihood through surrogacy only.

Getting saddened by the present situation Indian Government moved a petition in 2015 to ban commercial surrogacy, a service in India restricting it only to needy, infertile Indian couples . It is very difficult to find the reason why commercial surrogacy in India has been banned for international intended parents, but some reasons can be identified to understand the decision taken by the legislature. Due to less available protections to intended parents and surrogates led to harmful results in India, when surrogacy became a booming industry , there were no regulations and in response unethical and unsafe practices developed. The surrogate mothers were subject to unethical practices, poor living conditions, and exploitation. To fulfill the demands of the international intended parents, Indian surrogacy agencies ran “Baby – Factories'' where, surrogate mothers were forced to live until they give birth to intended parents’ babies – with usually no assistance from the family, they left behind while pregnant .In addition surrogates were get paid very poorly, while agencies were charging more than the double amount and surrogates were get exploited in commercial surrogacy . Their poverty and lack of knowledge threw them into the surrogacy process repeatedly for financial gain, their health declined, and they became “Baby –Making Machines” year after year. They did not receive any support or service from their family during their emotional journey.

As a result of these stories emerging over the time, the Indian Government attempted to take steps to make the process safer for all involved. Unfortunately that resulted in the restrictive process that has made the process completely impossible, rather than safer. 

The ban on the foreign intended parents in 2015 was only the start of the legislation regulating surrogacy. In December 2018 after 12 years debate the Indian Surrogacy Law was passed that :

  1. Made commercial surrogacy illegal.
  2. Only allowed altruistic surrogacy for needy infertile Indian couple 
  3. Requires intended parents to be married for 5 years and have the doctor’s certificate for their infertility.
  4. Restricts women to be surrogate only once and only if they are the close relative of the intended parents, married and have a biological child.
  5. Bans single parents, homosexuals and live in from surrogacy.

These changes reflected a new era of surrogacy in Asia, other countries like Thailand and Nepal recently implemented surrogacy bans as India. It can be said; that these new guidelines can have both positive and negative repercussions.