LEGAL POSTION IN INDIA ON SURROGACY
Surrogacy is a type of agreement between a couple /a person &a woman to deliver a child. Surrogacy can be commercial or altruistic. it is commercial surrogacy if the surrogate mother demands /receives compensation along with the reimbursement of the medical &other related expenses during the course of pregnancy, and when the surrogacy is not commercial its altruistic.
Commercial surrogacy is legal in India (without any legislation), Ukraine, &California while it is illegal in England, Germany, Sweden, Norway, Italy, many states of United States &Australia
Commercial surrogacy is deemed legal in India since 2002. There is no codified surrogacy law in India as the ART Bill is yet to be placed &passed in Parliament. ‘Surrogacy Agreement’, is the only base which governs the parties. Supreme Court of India by virtue of case, “Baby Manji vs. Union of India”, has made commercial surrogacy legalized in India and over a period of 10 years, India has become a favorite destination of fertility tourism. Each year, couples from abroad are attracted to India by so-called surrogacy agencies because cost of the whole procedure in India is as less as one third (10-20 lakhs) of what it is in United States &United Kingdom. Upto 65-70% of the contractors looking for surrogate mothers are foreigners. Considering the growing number of surrogacy cases in India and the challenges that the surrogacy would face in future, the government of India decided to come up with a law which would govern the surrogacy and ART in India. The Indian Council of Medical Research (ICMR) issued Guidelines in 2005 which prescribed conduct and use of ART procedures or treatment by fertility clinics. In addition to these, there is Law Commission Report No. 228 of the year 2009. Subsequent to this the ART (Regulation) Bill 2010 was formulated by the Union Ministry of Health & Family Welfare to legalized commercial surrogacy. Later upgraded it to The Assisted Reproductive Technologies (Regulation) Bill – 2013, 2014 and then to 2015. However in March 2014, Home Ministry guidelines was passed, which are applicable only to foreign couples restricts the choice of surrogacy to heterosexual couples whereas the ART Bill permits surrogacy by all including single or unmarried; there is no bar on sexual orientation and on nationality. Subsequently in draft bill 2015, the government tightened visa regulations for foreign couples desirous of commissioning surrogacy. They were required to travel on medical visa instead of a tourist visa for the purpose. In November 2015, going a step further, the government has barred surrogacy for foreigners. The Government wants to limit surrogacy to infertile Indian married couples.
In a developing country like India where poverty is a major concern, the poorer husbands are motivated to direct their wife for surrogacy as an income generating option, ignoring health and long-term consequences from repeated pregnancies with the excess &inappropriate use of commercial surrogacy facilitated by unscrupulous fertility clinics for greater profits and exploitation for surrogate mother by keeping them in isolation. Hence, there are number of ethical, social, legal, medical and psychological (emotional) issues associated with surrogacy, which require urgent need for implementation of law in order to protect for interest of surrogate mother commissioning parents and surrogate child.
This Seminar aims to discuss a comprehensive law which will deal with problems and need of surrogacy, present law, policy & regulation of surrogacy, judicial perspectives, medico-ethical issues, international dimensions and psycho-social issues. Whereby discussing efficacy and efficiency of proposed Bill and reporting the recommendation of the said seminar to concerned authorities and Govt. of India.
Advocate Hema Sahu
Supreme Court of India