INTRODUCTION
Nature has granted women the opportunity to bring an entirely new being into the world. This is a life-changing experience for a couple, introducing them to the world of parenthood. The pain of not being able to experience this wonderful and joyful moment as a family is disheartening and occasionally even leads to broken marriages. Being able to conceive a child strengthens the bond between the struggling couple which can save the marriage. There are various reasons why some women are unable to reproduce, and that is when surrogacy is presented as a potential solution in the form of a blessing, providing them a chance to have a child. Surrogacy as a concept is on the rise, being a viable solution in making a family by, In Vitro Fertilization (IVF) of the respective parents to produce their offspring. There are certain other procedures for individuals and couples to have a biological child, such as embryo transfer, which are encompassed under the term Assisted Reproductive Technology (ART).
LEGAL CHANGES AND THEIR IMPACT
According to Section 2(zd) of the Surrogacy Regulation Act, 2021 Surrogacy is “a practice whereby one woman bears and gives birth to a child for an intending couple to hand over such child to the intending couple after the birth”(Surrogacy Regulation Act, 2021). In my viewpoint, the rise of surrogacy, especially in India, has been beneficial to many spouses facing biological challenges.
Even though surrogacy is a boon to individuals and couples striving for a baby, it is perceived as a controversial topic globally, including in India. It was legally accepted back in 2002, which is when India started to become the prime spot for surrogacy. Back then, as surrogacy had recently been legalized, there weren’t many provisions to supervise the activities. Along with that, there was a comparatively low cost of living, skilled doctors at very affordable rates, and a nurturing environment. Due to all these reasons, there was the growth of clinics, offering surrogacy to parents across the globe for a generous amount or a reward, giving rise to a new challenge of commercialization of surrogacy. In this unsupervised system, there were issues of objectification of children, as merely an object that can be bought or traded and abusive practices in surrogacy affecting the lives of the women who were often from rural areas and were used only as a means of reproducing. India, being a hub spot for surrogacy back then, had no choice but to take serious measures to control the unethical practices occurring.
The Ministry of Health and Welfare finally introduced the Surrogacy Regulation Act, 2021, taking a huge step and completely banning surrogacy tourism in India. The provisions introduced and included eligibility criteria for parents and surrogate mothers, ensuring safe and ethical practices. Foreigners from all over the world, arriving in India for cheap surrogacy, totalled up to 80 per cent of the births. India, from being once known as, “commercial surrogacy” capital, to now being stringent with its rules, allowing only for altruistic surrogacy. Unlike commercial surrogacy, only medical expenses are covered by the parents in altruistic surrogacy with no compensation or rewards.
LEGAL ISSUES AND CHALLENGES
Firstly, there is an absence of a global agreement that specifically regulates surrogacy. It means that there is no single set of laws or guidelines that govern the practices on an international level. Each country has its laws governing surrogacy. This indicates that there are conflicting national laws. While one country permits surrogacy with minimal rules, another country might ban it outright. Such rules of one country may not resonate well with another causing potential legal challenges. Secondly, surrogate mothers from economically disadvantaged countries enter into agreements with parents-to-be from wealthier regions. This could lead to power imbalance and exploitation. Generally, such surrogate mothers have limited literacy, making them vulnerable while entering into surrogacy contracts, as they are unable to comprehend the terms and conditions without legal counsel, which again they cannot afford. Reports say that only 10% of the commission is received by the surrogate mothers leaving them with an unfair portion. Most of the commission falls in the hands of middlemen and clinics, who also manipulate surrogates into such agreements. Thirdly, there are instances where these parents-to-be refuse to accept a child with disabilities. One very well-known case is the Baby Gammy case where an Australian couple refused to accept one of the twins because the baby had Down syndrome. This case created an international outrage raising ethical questions about the legal protection of surrogate children in cross-border surrogacy arrangements. Another challenge occurring is the domicile of the surrogate child, complicating his/her integration into the new family.
CASE STUDIES AND REAL-LIFE EXAMPLES
Foreign nationals, who played a significant role in boosting surrogacy tourism in India, are now restricted from accessing surrogacy services in the country. The reason behind the ban could include various factors, including real-world scenarios where complications arose due to the unregulated environment of surrogacy. Below is a major case law that played a significant role in changing the landscape of surrogacy in India:
Baby Manji Yamada v. Union of India
It is regarded as the most notable landmark case highlighting the social-legal implications of international or cross-border surrogacy. This case focused on the custody of a Japanese child, whose parents were Yuki Yamada and Ikufumi Yamada. This child was born through a surrogate mother in Gujarat, with no genetic link between the child and the surrogate mother. Before the birth of baby Manji, the couple had a couple of disagreements, leading to the breaking down of their marriage and, ultimately leading to a divorce. The main issue in this case was how to handle such complex scenarios in India when there existed no legal framework and regulations on surrogacy at the time. Custody was also a major issue as the couple had divorced, thus raising the question of who the child would belong to. Another issue was the citizenship of the child, as it was born to an Indian surrogate, and at that time, India did not have any laws to regulate the same. The intervention of the Supreme Court was when the grandmother, Emiko Yamada, filed a petition to obtain legal custody of the child and demanded a passport and other travel documents for the child. The case was in favour of the grandmother as there was no right to deny custody, as the child was not genetically linked to the surrogate mother. This case highlighted the urgent need to introduce regulations regarding surrogacy. This case is considered a stepping stone for creating stringent regulations and banning commercial surrogacy once and for all.
CONCLUSION
Surrogacy, overall has provided lots of benefits for couples unable to have children due to infertility or other reasons. Commercial surrogacy, on the other hand, treats children as a commodity and women as just a means to produce them. In my take, commercial surrogacy could have been beneficial to both foreign couples willing to have a child and surrogate mothers struggling financially. If the process was managed responsibly, without taking an unfair advantage of women as a mere way of breeding, commercial surrogacy could have been an extraordinary opportunity. Willing women who are ready to become surrogate mothers could have taken this opportunity to maintain their livelihood. The challenge lies in treating women with dignity and just a vessel.
In a country like India, banning commercial surrogacy was probably a good decision, keeping in mind the illiteracy rate. Many women, especially from rural areas, would not have the knowledge or awareness on how to take commercial surrogacy to their advantage and could end up being exploited. The transformation of surrogacy and its regulations in India is something every country must implement in themselves for the social protection of surrogate women and children.
Author(s) Name: Aishwarya MD (BMS College Of Law)
