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Published : June 21, 2010 | Author : sujay_ilnu
Category : Woman Issues | Total Views : 12482 | Rating :

Sujay Dixit, BA.LL.B(Hons in Corporate Law) Institute of Law,Nirma University

Surrogacy in India:

Surrogacy or Surrogate means substitute. In medical parlance, the term surrogacy means using of a substitute mother in the place of the natural mother.

Commercial surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This procedure is done in a large scale in several countries including India where due to high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms "wombs for rent", "outsourced pregnancies" or "baby farms". India is foremost in surrogacy because of the low cost treatment and ready availability of women opting to be surrogate for childless foreigners. By some estimates Surrogacy in India is already $ 445 million business. In India Surrogacy costs about $ 12,000 compared to US where it is $70,000. Moreover laws in US and UK do not allow the surrogate woman to charge the childless couple; whereas in India there are no laws preventing a surrogate woman in accepting compensation for renting her womb. Dr. Nayna Patel, medical Director, Akanksha clinic in Anand, Gujarat receives 40-50 requests per month from couples from world over and She says that the childless couples offer Rs.3, 00,000 to Rs.4,00, 000 and sometimes even funds for education to the surrogate woman and there should be laws in India protecting not just the couple but also the woman opting to be surrogate keeping in mind the economic compensation and help that it offers to not just the illiterate women but also their families in India[1].This industry is also flourishing because Commercial surrogacy has been legal in India since 2002[2].

The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY .” The following observations had been made by the Law Commission:

[1] Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

[2] A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

[3] A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

[4] One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

[5] Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

[6] The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

[7] Right to privacy of donor as well as surrogate mother should be protected.

[8] Sex-selective surrogacy should be prohibited.

[9] Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

The Report has come largely in support of the Surrogacy in India, but it is lacking the legal hold on many aspects such as strengthening laws regarding commercializing surrogacy. India currently is in heavy need of laws which can regulate and can have a check on this activity in India because in India it is now increasing as a industry and here many clinics are providing these services to foreign couples who don’t want to compromise their carrier and they find it more easy to give their eggs and sperms and which is then fused clinically and then planted in the womb of the women ready to give her womb on rent ,and Indian clinics are acting like agents and in order to provide such services they charge good amount from foreigners, in India surrogacy is very easy where you contact any clinic and they will then take your case and they will provide you a woman ready to give birth to a baby for them and most of such women are from poor background and they usually indulge into this business for earning money because mostly they are illiterate and they find it a easy way to earn more. But it is a exploitation of women because mostly they are forced by their families to do so and due to their ignorance of medical complications they readily approve to surrogate. In India Anand District of Gujarat is a big hub of surrogacy. In India surrogacy is increasing like industry because due to lack of laws and poor law enforcing agencies.

Case decided by Gujarat high court regarding surrogacy-In a landmark judgment in a case which had no precedents in the country, the Gujarat State High Court in India conferred Indian citizenship on two twin babies fathered through compensated surrogacy by a German national in Anand district. Raising a lot of questions related to surrogacy, the bench observed, “We are primarily concerned with the rights of two newborn, innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. Emotional and legal relationship of the babies with the surrogate mother and the donor of the ova is also of vital importance.” After considering the case laws related to surrogacy of countries like Ukraine, Japan and the USA, the court decided the case at hand by inclining to recognize the surrogate mother as the natural mother of the children. And since the woman is Indian, the children were granted Indian citizenship and passports under the legal provisions[3].However as India does not allow full fledged dual citizenship[4], the children will have to convert to Overseas Citizenship of India[5] if they are also going to be taking foreign citizenship of their biological parent's country. So far no case has been come before court regarding surrogacy.

In 2008, the Supreme Court of India in the Manji's case[6] (Japanese Baby) has held that commercial surrogacy is permitted in India. That has again increased the international confidence in going in for surrogacy in India.

Conclusion-There is concern if this practice keeps growing the way it is, it could change from a medical necessity for infertile women to a convenience for the rich with specially the wealthy couples of the West choosing commercial surrogacy over a natural childbirth because of the pain and stress of natural childbirth causing the whole industry to be farmed out. Some bioethicists are concerned that Indian surrogates are being badly paid for their surrogacy and that they are working as surrogates in a country with a comparatively high maternal death rate[7]. However high maternal death rate is found in the poorest of the poor section of the population in India who may not get access to proper medical facilities in time or from amongst many who opt not to access them because of superstition and illiteracy. And mostly women from poor background do this work.

[2]. The Associated Press (2007-12-30). "India's surrogate mother business raises questions of global ethics".
[3]. HC confers Indian citizenship on twins fathered through surrogacy; Express News Service; Nov 12, 2009; Ahmedabad; Indian Express Newspaper
[4]. OCI just a recognition of Indian roots: Vayalar; by Rema Nagarajan, The Times of India
[5]. Overseas Citizenship of India (OCI); Ministry of Home Affairs, Government of India website
[6]Full Text Decision of the Manji Case By G R Hari, Indian Surrogacy Law Centre, Indiansurrogacylaw.com
[7]. "Unicef - India - Statistics.

Authors contact info - articles The  author can be reached at: sujay_ilnu@legalserviceindia.com

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