Childbirth is an essential aspect of human life. For centuries, surrogacy has been used to aid birth children in cases where pregnancy is impossible or might entail fatal risks for the child-bearer. It has become a blessing in disguise for many people who wish to have children but are unable to do so for a variety of reasons. However, it has become a topic of a lot of great debates and deliberations, with lawmakers and the general public often falling in a state of confusion - given its sensitive nature and societal factors that make it a taboo subject.
Surrogacy is an assisted reproduction process where prospective parents work with a gestational carrier (also called a surrogate) who bears their child until birth. These carriers often have no genetic relation with the unborn child. The relationship between the intended parents and the surrogate is mostly guided with legally binding documents.
Broadly, surrogacy can be classified into two categories – traditional and gestational.
In traditional surrogacy, the egg of the surrogate is in vivo fertilised by the sperm of the intended father or a donor. The surrogate may be inseminated by either naturally or artificially. As a result, if a donor’s sperm is used, the child is not linked to the prospective parent(s) biologically. If the sperm of the intended father is used in insemination, both the father and the carrier are biologically related to the resulting child.
Gestational Surrogacy occurs when a gestational carrier is implanted with an embryo formed through in vitro fertilisation technology. There are many types of gestational surrogacy, and the resulting offspring is biologically unrelated to the surrogate in each case.
Surrogacy can also be classified according to its nature. Commercial surrogacy is an arrangement where the surrogate is paid to carry the child. However, this type of arrangement is illegal in a lot of countries, including the European Union. Altruistic surrogacy is an arrangement where monetary compensation is not provided to the carrier. In this scenario, the surrogate is a near relative or friend of the intended parents in most cases.
Surrogacy around the World
Around the globe, the legality of surrogacy varies. Many nations do not have regulations that deal with surrogacy directly. Some countries explicitly forbid surrogacy, whereas others prohibit commercial surrogacy, but permit altruistic surrogacy. Some nations, with few constraints, permit commercial surrogacy.
In the US, surrogacy and its related legal concerns fall within the ambit of individual states and the legal position on surrogacy differs widely from state to state. Some states promote arrangements for surrogacy contracts and others explicitly decline to enact them, going as far as and penalising commercial surrogacy. In more liberal states, both commercial and altruistic surrogacy contracts are allowed to ensure easy acceptance of the prospective parents as the legal parents of the child. However, only married heterosexual couples receive funding from certain fairly surrogacy-friendly states and only gestational surrogacy is accepted, with little or no legal protection is offered for traditional surrogacy.
Ukraine is another country with liberal laws pertaining to surrogacy, which makes it a very sought after destination for international couples. Surrogacy is legally controlled by Clause 123 of the Family Code of Ukraine and the Order of the Ministry of Health of Ukraine of 09.09.2013 No 787 on the approval of the use of assisted reproductive technologies in Ukraine. Intended parents can choose between Gestational Surrogacy, Egg/sperm Donation, and variations of specialized embryo adoption services. No special authorization is necessary for this reason from any regulatory body. However, written consent is compulsory for all parties involved in the arrangement.
Gestational surrogacy in Russia is permissible in compliance with the terms of the federal law on the Basics of Health Protection of Citizens. The legislation offers couples, including foreign nationals and unmarried couples, the right to engage in the country’s gestational surrogacy arrangements, provided that the ones seeking such an arrangement are heterosexual couples or single females. Same-sex partners are not listed as possible intended parents.
In Hong Kong, under the Human Reproductive Technology Ordinance 2000, commercial surrogacy is illegal. The law is worded in a way that nobody can pay a surrogate, no surrogate can accept payment, and no one can arrange for a commercial surrogacy arrangement, regardless of whether inside or outside Hong Kong.
All jurisdictions in Australia, other than the Northern Territory, permit altruistic surrogacy; commercial surrogacy is a criminal offence. There is no surrogacy law in the Northern Territories. It is a crime in New South Wales, Queensland and the Australian Capital Territory to engage in international commercial surrogacy arrangements with maximum punishments ranging to up to one year in prison in the Australian Capital Territory, up to 2 years’ imprisonment in New South Wales and up to three years in jail. Since 2017, gay couples are also legally eligible to opt for altruistic surrogacy.
Surrogacy in India
India legally permitted commercial surrogacy in 2002, which eventually led to India becoming a very sought after destination for international couples intending to have a child through surrogacy. India was also a relatively inexpensive location for surrogacy when compared to its western counterparts. However, in 2015, foreign nationals were banned from commercial surrogacy arrangements in India.
In 2008, the Supreme Court of India agreed not only to make the first judgment on surrogacy but also to illustrate the lack of regulation in the case of Baby Manji Yamada v. Union of India. Baby Manji Yamada was born to an Indian surrogate mother and her intended parents were a Japanese couple who divorced a month before the child was born. Ikufumi Yamada, the biological father, tried to take the child to Japan, but for such a situation, the legal system had no such arrangement, nor did the Japanese government authorise him to bring the child back home. In the end, the Supreme Court of India had to interfere and the child was permitted to leave the country with her grandmother. The largest impact of the Baby Manji Yamada judgment was that it forced India’s government to enact a surrogacy regulatory law.
The Law Commission of India in its 2009 report stated the legal problems relating to surrogacy are very complicated and a detailed law needs to be resolved. In the report, the commission demanded an active regulation by legalising altruistic surrogacy arrangements and banning commercial ones, saying that the need of the hour was to take a proactive approach. Eventually, The Assisted Reproductive Technology Bill was drafted in 2008 to examine the privileges and responsibilities of the surrogate mother in order to ensure that there is a law to protect the needs of the surrogate mother and the infant born through surrogacy. The bill also sought to prevent unmarried couples, homosexuals, live-in partners and widows from opting for surrogacy. However, the bill has still not been ratified by the parliament.
Over the years, many laws have been drafted to regulate surrogacy in India. One of the most prominent bills in this regard is the impending Surrogacy (Regulation) Bill of 2019. The bill was initially introduced in 2016 with the intention of only allowing heterosexual couples who had been married for 5 years and were struggling with infertility to opt for an altruistic surrogacy arrangement and banning commercial surrogacy. The bill also makes it compulsory for intending couples to not abandon the child under any circumstances. However, the bill lapsed due to adjournment sine die of the parliament session in progress. Eventually, the bill was reintroduced in the lower house of the parliament in 2019.
The Bill describes surrogacy as a procedure in which a woman gives birth to a child for an intended couple in order to give the child to the couple after the birth. The bill permits altruistic surrogacy but bans commercial surrogacy. The bill also mandates the constitution of surrogacy boards on national and state levels. It also requires the prospective carrier to be a married woman, between the ages of 25-35, with children of her own and no record of previous surrogacies.
The reason for introducing such a drastic bill was to ensure the protection of the unborn children and the surrogate. In quite a few cases, the surrogate was treated poorly, which ultimately led to her demise. Indian surrogacy agencies effectively worked “baby factories” growing demands of foreign intended parents. With no support for the family, Indian women were compelled to live in bad conditions until they gave birth to the intended parent’s babies. Thus, in an attempt to stop this menace, this bill was introduced in the parliament. However, the bill is still full of issues.
The first issue comes with the visible exclusion of homosexual couples from becoming parents under this law. Given the fact that in the case of Navtej Singh Jauhar v. Union of India, the Apex Court decriminalized consensual sexual activities between two people of the same-sex, this move comes as a low-blow. The bill also excludes widows and live-in couples from its purview, and the grounds of these exclusions are yet to be understood.
The next issue comes with the scope of “infertility” as provided under Section 2(p) of the bill, which states defines infertility as, “the inability to conceive after five years of unprotected coitus or other proven medical condition preventing a couple from conception.” While this definition can cover the issue of infertility, it does not extend to medical conditions like polycystic ovarian syndrome and hypothyroidism which can impede a person’s ability to carry a child after its conception.
Finally, another issue that the bill presents comes with Section 4 (iii)(b)(II) which says, “No person, other than a close relative of the intending couple, shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act”. This provision can set a very dangerous precedent, especially in a country like India, where women still hold a very vulnerable position in a family. Many women can be forced to enter such an arrangement for another member of the family – which challenges her bodily autonomy.
Surrogacy has gained momentum across different countries in the world. Although it has existed for centuries, it is only in the last 5 decades that countries across the globe have made an effort to regulate such agreements. Various social, cultural and religious reasons contribute to a country’s laws on surrogacy. While most nations permit altruistic surrogacy, commercial surrogacy is still a topic that is taboo across the globe. The concept of “rent a womb” is frowned upon immensely since it is viewed as an attempt to exploit a person’s reproductive capabilities. However, what we must note here is that informed consent, in cases of such agreements, cannot be disregarded.
If the parties involved in such agreements are in a position to carry a child and take care and provide for the child, without external exploitative influences, then such arrangements can be very beneficial. Thus, lawmakers across the globe should work towards creating legislation that can protect and ensure a surrogate’s rights, put intending parents on the same pedestal as other parents and safeguard the resulting child’s rights, instead of drafting hasty and misguided laws that are superficial in nature and harm all the parties involved.