Yogita Sharma

B.Sc. LL.B.

Himachal Pradesh University

Synopsis 

1. Introduction. 

2. Types of Surrogacies. 

3. Exploitations of Surrogacy. 

4. Benefits of Surrogacy. 

5. Laws of Surrogacy in India. 

6. Conclusion. 

INTRODUCTION

On the 25th January, 2022, the Surrogacy Regulation Act, 2021 came into force. The current Surrogacy law, contained in the Surrogacy (Regulation) Act, 2021 and the supported Reproductive Technology (Regulation) Act, 2021. 

The word “ surrogate ”, is deduced from Latin word “ subrogare ”, which means “ appointed to act in the place of ”. The intended parent(s) is the individual or couple who intends to rear the child after its birth. Surrogacy is a well- known system of reduplication whereby women agrees to become pregnant for the purpose of gestating and giving birth to a child she’ll not raise but hand over to the contracted part. Surrogacy is marketable which has been allowed in India since 2002. Wherever, gestational surrogacy is permitted as a legal surrogacy operation in India. 

TYPES OF SURROGACIES 

1. Traditional surrogacy – It is also called as straight method of surrogacy which is a technique that begins with artificial or natural inseminations continuously till birth of a baby. Such conventional practise of surrogacy is not permitted in India. 

2. The Gravid Surrogacy – also known as host surrogacy was first fulfilled in the time 1986. The entire procedure begins with the generation of an embryo using In-Vitro Fertilisation (IVF) technology. The embryo is latterly implanted into the surrogate uterus. Such surrogacy is permitted in India. 

BENEFITS OF SURROGACY 

Surrogacy is surely a boon for those parents who want to have a child but are n’t suitable to conceive one naturally due to any reason. The gestational surrogacy provides natural connection between the parents and child. This is not the case in traditional surrogacy. The child is actually free from any health threat because the law orders screening or health checks of the surrogate mother and child. Another benefit is the financial factor that’s associated with surrogacy. The surrogate mother is monetarily backed in every step of the gestation and is also, in utmost cases, in return paid for her services.

EXPLOITATIONS OF SURROGACY 

In India, women were easily available to act as surrogate mothers till 2021. There were excellent medical installations, and it was all available at a much lower cost than in developed countries. Inadequate governance over surrogacy and wide unethical medical practices made the country one of the top global destinations for surrogate parenthood. The main characteristics of children such as sex, weight, and skin colour determined the final price to the surrogate mothers. Children born through surrogacy were therefore commodified and treated like products. The distribution of benefits was extremely uneven and illegal the surrogate maters entered a veritably small share (15 to 25%) in the surrogacy contract compared to the hospitals. Surrogate person, substantially the poorest of the poor, endured several health problems that eventually affected their capacity to earn a livelihood. They suffered from thyroid conditions, high blood pressure, diabetes, cancer, and indeed HIV. The hormones that surrogate mother were given to prepare their body for gestation and keep the baby in their womb played annihilation with their health. Surrogate women often experience nearly death. Trafficking of women was rampant when there were no provisions on surrogacy. A 13- time-old from Jharkhand was traded to Delhi, ravished, enslaved by the merchandisers, and made to deliver six times. When couples choose to live without children, they are frequently labelled as abnormal. Women carry a double burden because they get targets of abuse and their bodies are subordinated to treatments, irrespective of whether they’re infertile or not. Women going through IVF treatment face social smirch, and experience cerebral problems due to the hormone treatment and physical stress due to the pregnancy treatment. If individual reproductive rights violate other people’s human rights and social justice, it cannot be considered a constitutional right. Surrogacy promotes a deeply embedded classist, pronatalist, patriarchal, racial, and ableist social hegemony.

LAWS OF SURROGACY IN INDIA 

Surrogacy is one of the most debated issues in India as it is connected with many other social, moral and legal issues against women. In India Surrogacy is controlled by either the Indian Council of Medical Research (ICMR) recommendations or opinions issued by the Supreme Court or High Courts. Numerous surrogate women suffer as a result of this gap in the legislation since they’re unfit to assert any rights before the courts or any other authority. Some relate to the Universal Declaration of Human Rights publicizing that all men and women of full age have the right to set up a family [Article 16(1)] and to the opinions of Indian Supreme Court declaring that family, gravidity and sexual exposure are integral to the dignity of an individual. The reproductive choice of a woman to give birth has been held to personal liberty. The Surrogacy (Regulation) Act, 2021 is a veritably detailed law, and it stipulates rules that IVF conventions, intended parents, and surrogate maters are anticipated to follow. Hospitals and clinics required to be registered with the National supported Reproductive Technology and Surrogacy Registry (NARTSR). As with the Pre-conception and Antenatal individual ways (PC- PNDT) Act, 1994, applicable authorities (AAs) have been appointed to cover the perpetration of the Act. The AAs have the power to suspend or cancel enrolments, probe complaints, take applicable legal action, supervise the perpetration of the rules, and recommend changes required in them by the Board. There can be no revocation conducted without the written concurrence of the surrogate mother and it has to be in agreement with the Medical Termination of Pregnancy (MTP) Act, 1971, amended in 2021. Surrogacy is banned for marketable purposes and the trade of a child, any affiliated harlotry, and any other form of exploitation can be penalized. Still, the forms of exploitation have not been specified. Any use of brokers or agents to arrange for surrogate mother is not allowed and hospitals are confined from dealing embryos or gametes for surrogacy purposes. Children are defended from abandonment and exploitation under the Act. NRIs are allowed to mileage themselves of humanitarian surrogacy in India.

The punishment for escaping the law is 10 years imprisonment and a Rs. 10 lakh fine for clinics and five years in jail and a Rs. 5 lakh fine for intended parents. 

CONCLUSION

The legislation of surrogacy is a unique mix of social, moral, ethical, legal, scientific issues, and is an effective attempt to balance of interests in the process of surrogacy to ensure the betterment of the child while also guarding the rights of the surrogate mother and parents. The strict penalties under various provisions will act as interference for implicit violators and ensure all the parties exercise the process fairly and nicely.