Saturday 24 Feb 2024

The Law of Surrogacy posited against Traditional Fidelity

Adv Moses Pinto | FEBRUARY 04, 2024, 12:12 AM IST

The words of Pope Francis spoken on 8th of January, 2024 pertaining to the practice of Surrogacy are bound to have a resounding effect on the future of commercialising the womb.

The Pope emphatically spoke:

“I deem deplorable the practice of so-called surrogate motherhood, which represents a grave violation of the dignity of the woman and the child, based on the exploitation of situations of the mother’s material needs,”

Further he said: “A child is always a gift and never the basis of a commercial contract.”

Interestingly, and rather as a matter of fateful coincidence, I had the privilege of attending a Seminar entitled: Surrogacy rights and the best interest of the child on the 31st January, 2024.

In the Seminar, the panelists discussed how the human rights of all involved ought to be protected in the surrogacy process while keeping the best interest of the child as the paramount concern.

The focus areas of the Seminar included the child's right to identity and the right to know one’s parentage as well protection from exploitation for donors and surrogates.

The legal position in India remains at the forefront of this edition of ‘Legally Speaking’.

In India, the Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare, in the Lok Sabha on 15th July, 2019.

The Bill defined surrogacy as a practice where a woman would give birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.

The Bill, 2019 prohibited commercial surrogacy, but had allowed altruistic surrogacy.

Altruistic surrogacy is one which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.

According to the Surrogacy (Regulation) Bill, 2019,

Surrogacy is permitted when it is:

(i) for intending couples who suffer from proven infertility;

(ii) altruistic;

(iii) not for commercial purposes;

(iv) not for producing children for sale, prostitution or other forms of exploitation; and

(v) for any condition or disease specified through regulations.

Restrictions envisaged in the Surrogacy (Regulation) Bill, 2019:

Include the impermissibility of Commercial surrogacy which includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) while drawing exception to the basic medical expenses and insurance coverage.

In furtherance of the journey of surrogacy regulation in India, the Rajya Sabha created a committee for discussion of the Surrogacy (Regulation) Bill 2019 with various stakeholders, the conclusion of which led to some more amendments, culminating in its passage into law on 25th December, 2021.

On 25th January, 2022, the new Surrogacy (Regulation) Act, 2021, came into force.

The amended act exclusively permitted charitable surrogacy, while preventing those with financial means from abusing and taking advantage of the surrogacy option. It prohibited commercial surrogacy, as well as the trade of human gametes and embryos.

Consequently, in the Indian law, the definition and requirements for becoming a "surrogate mother" have been updated as follows:

a) Any willing, ever-married woman between the ages of 25 and 35 who has her own child may become a surrogate.

b) May only sign up for surrogacy once in her lifetime, but up to three attempts may be undertaken if embryo transfer does not take place.

c) Must be physically and mentally fit, as attested by a medical practitioner through certification.

d) Prohibited from providing her own gametes for surrogacy by the Act.

e) Not receive any compensation for carrying the child in her womb other than the necessary insurance and medical costs.

f) For a period of 36 months, insurance must cover any difficulties arising from the delivery of the baby, including postpartum complications and even death.

In contrast, it needs to be appreciated that upon reference to the Universal Declaration of Human Rights, 1948 which proclaims that all men and women of full age possess the inherent right to found a family as per Article 16(1).

Concomitantly, the decisions of the Hon’ble Supreme Court of India in declaring that family, procreation and sexual orientation remain integral to the dignity of an individual serve to meld the social fabric into the realm of fidelity.

In addition, the reproductive choice of a woman to give birth has been held to be a dimension of her personal liberty under Article 21 of the Constitution and this need to be safeguarded.

According to the pragmatic views of Supreme Court Senior Advocate Aman Hingorani in his Article entitled: Surrogacy law in India: A teasing illusion? published in the Bar and Bench Website on 8th May, 2023:

“But then, what are the chances that a woman would gratuitously lend her womb to an intending couple/woman to carry and deliver the child and then hand over the child to the intending couple/woman, more so if she is not related to them? Experience shows that it is more likely that the potential surrogate mother (whether herself or through nominees) would take in cash or by way of benefits the reward for bearing and giving birth to the child and thereafter relinquishing the child to the intending couple/woman. After all, neither the intending couple/ woman nor the potential surrogate mother is likely to follow a law the rationale of which they do not understand. Nor would the threat of being booked for violating the surrogacy law be of any deterrence. Surely, the State is aware that no law persuades simply because it threatens.”

According to Dr. P M ARATHI (2018) for NHRC:

“Those participating in this debate need to think whether they have the right to impose their morality on all women (however convincing it might be to them)! We argue that neither a ban nor the money in the hands of a few thousand surrogates is an answer to women’s compulsions for which structural changes are required.”

“A women’s movement that questions and explores all actors involved, helps women gain higher levels of autonomy and better chances of gaining their rights to integrity as workers and citizens against exploitative work, legislation and clinics. This alone lays the ground for questioning commercial surrogacy, a first step towards containing it. She then has a better chance to experience and nurture the non-exploitative aspects of procreation.”

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