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A New Era of Surrogacy in India

INTRODUCTION

Marriage is one of the universal social institutions. The marital commitment between a man and a woman, they claim is consummated by a single purpose, which is expressed by “fulfilling together the behavioral conditions of procreation”[1]. But throughout its trace in history, the sole goal of martial relationship was to produce offspring in context with many of the cultures around the world and the reason behind that practice was to foster the population growth as there was increasing infant mortality rate and for cultural practices. But an infertility couple couldn’t fulfill the desire. The government were morally obliged to fix this issue by enacting adoption laws. However, this has been historically a national issue and gave an entry to Infertility treatment. The development of the surrogacy contracts and introduction of new treating technologies such as intro vitro fertilization IVF brought an enormous change in the society by forming arrangements between infertile couples. Moreover, this artificial modern techniques were socially accepted and hence had legal support and laws.

 LEGAL ATTENTION AND IMPACT ON SOCIETY

Surrogacy is a method of assisted reproduction where the intended parents work with a surrogate mother who will carry and care for their baby until birth. Infertile couples use surrogacy to grow their families when they can’t do so on their own. Surrogacy is the most welcomed technology for such infertile couples and which benefits them greatly. The historical evidences clearly shows that surrogacy had a traditional background. The major types of surrogacy are Natural surrogacy, Gestational surrogacy, Commercial surrogacy, Altruistic surrogacy. This old procedure became successful when India’s first IVF baby Kanupriya alias Durga was born in Kolkata, 1978. Though surrogacy had great impact on society, it had no legal status in India.

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After many efforts on its legislation, India made commercial surrogacy legal in 2002. Where the surrogate mother has to be paid for carrying the child as a monetary compensation and it is came to be called as baby farming. A bill was drafted on guidelines for practice of acceptable Assisted Reproduction technology (ART) methods, but had no legal binding and the rules and regulations were not made compulsory.

In the year 2008, the case of Baby Manji Yamada v. Union of India,[2] Baby Manji Yamada was a child born to an Indian surrogate mother for a Japanese couple who before a month of the child’s birth separated and the future of the child was left in dark. The biological father, Ikufumi Yamada wanted to take the child to Japan but the legal framework had no such provision for such a case nor did the Japanese government permit him to bring the child back home. In the end, the Supreme Court of India had to intervene and the child was allowed to leave the country with her grandmother. The biggest impact of the Baby Manji Yamada decision has been that it spurred the government of India to enact a law regulating surrogacy. The writ petition was accordingly disposed of without any order as to costs.

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The Law commission of India in its 228th report made proper observation on surrogacy. Later, the Assisted Reproductive Technologies bill (2010) was drafted by the Health and Family welfare wherein the rights of the surrogate mother and the intending parents were clearly given including any violation regarding this[3]. Then it will be nursed as cognizable offence and the person will be awarded grievous punishment. In 2016, A Bill was introduced and passed by lower house of the parliament proposing to permit only infertile couple to access altruistic surrogacy.

The surrogacy Regulation bill (2019) was then passed by Ministry of Health and Family that prohibited commercial surrogacy but allowed altruistic surrogacy where there will be no rent given to surrogate mother for care other than medical expenses and insurance coverage which established a ban on commercial surrogacy and allowed surrogacy treatment only for needy and infertile Indian couples.

The union cabinet approved the bill (2020), allowing a willing women to be a surrogate mother and proposing the bill would benefit widows and divorcee besides infertile Indian couple. Therefore, the recent changes in the bill has got a regulatory framework which is accepted to monitor surrogacy.

CONCLUSION

Hence, the bill of 2020 is an ethical, moral, social legislation as it protects the reproductive rights of the surrogate mother as well as the child born through surrogacy. It will be obviously be benefitting to potentially billions of couple who are unable to have children. Surrogacy is a pure blessing to the society due to the fastest technological Development and advancement in the field of science and this solution has saved lot of family issues a d brought happiness in the means of artificial insemination.

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[1] Eric Simpon, The purpose of marriage is not procreation, HuffPost (04/01/2013, 10:22 PM ET), https://m.huffpost.com/us/entry/2973061/amp.

[2] Baby Manji Yamada v. Union of India, (2008)13 SCC 518 (India).

[3] Kapil Sibal, Surrogacy Laws in India, B&B Associates LLP (June 13,2018), https://bnblegal.com/article/surrogacy-laws-india/.


Cite this article (The Bluebook 20th ed.)-

Medha, A New Era of Surrogacy in India, Ex Gratia Law Journal, (September 2, 2020), https://exgratialawjournal.in/blawg/women-and-law/a-new-era-of-surrogacy-in-india-by-medha/.

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Author

Medha
Student - SASTRA Deemed to be University