THE COMMERCIAL SURROGACY LANDSCAPE IN INDIA: OPPORTUNITIES AND ETHICAL CONCERNS

AUTHOR: Prateek Bal, SOA NATIONAL INSTITUTE OF LAW, SOA UNIVERSITY

The Paper is centred on the “Commercial of Surrogacy in India”. Following a brief introduction to the topic briefly, it clarifies the meaning and concept of Surrogacy. After that, the paper focuses on the different definitions of Surrogacy. The three types of surrogacies are also covered, and then the historical relevance of the practice is also covered. Following an analysis of the history of both India and the context all over the paper covers the commercialization of surrogacy in India. The Surrogacy Supermarket, which is common in India, is also mentioned in the paper. Following that, several moral and ethical concerns surrounding surrogacy were examined. Additionally, it talks about Indian surrogacy laws. There has also been discussion about India’s judicial stance on surrogacy, followed by a few recommendations and ideas. 

Commercial surrogacy, India, Ethical concerns, Surrogate mothers, Reproductive rights, Surrogacy, Surrogacy Regulation Act, Altruistic surrogacy.

Women possess the extraordinary ability to create life, making motherhood a valued experience for many. The right to reproduce is a fundamental personal right, and the desire for children is a shared aspiration among couples, while parenting brings immense joy, the struggle with infertility can lead to deep emotional pain, affecting around one single couple who encounter difficulties in conceiving.

Children have always been viewed as a source of joy and essential to continuing family heritage. According to experts, the birth of a child can strengthen a couple's bond. However, social stigma associated with infertility frequently results in pressure and, in certain situations, the dissolution of marriages. According to the World Health Organisation (WHO), approximately 10–15% of couples globally experience infertility. Adoption used to be the primary choice for childless couples, but advancements in artificial reproductive technologies (ART) have created new avenues for conception. Infertility issues can now be effectively resolved with techniques including embryo transfer, in-vitro fertilization, and artificial insemination.

A key development in reproductive medicine is surrogacy, which enables one woman to bear and give birth to a child on behalf of another. It works well for both social and biological infertility problems. Through surrogacy, couples who are unable to conceive through in vitro fertilization or artificial reproductive procedures can have a kid that is genetically linked to them. For people and couples who want a biological relationship with their kids, this option is becoming more and more appealing.

Around the world, surrogacy is now a commonly acknowledged idea. An incredible opportunity to become parents through surrogacy is presented to many infertile couples. Originating from the Latin word "surrogatus," which means "a substitute"—someone designated to act on behalf of another—the word "surrogate" was born. A married couple who are unable to conceive because of the wife's infertility and a woman who can carry a pregnancy are the parties involved in surrogacy. Through artificial insemination using her husband's sperm, this lady consents to become pregnant, bring the pregnancy to term, and then relinquish all parental rights to the kid.

The literature on commercial surrogacy in India shows a clear conflict between its economic benefits and ethical concerns. Studies indicate that commercial surrogacy offers significant financial opportunities for women, particularly those from low-income backgrounds. However, it also raises important issues about exploitation and informed consent. The introduction of altruistic surrogacy in 2021 has changed the landscape. These laws limit payment to surrogate mothers and enforce strict protections for their rights, complicating the situation further.

Review key studies on the topic, focusing on

Economic impact: How surrogacy supports local economies and improves; livelihoods by providing financial assistance to surrogate mothers and creating related jobs.

Ethical Concern: The moral implication of commercializing reproduction, including the risk of exploiting vulnerable women and the responsibilities of agencies and intended parents 

Legal Frameworks: Changes in laws affecting surrogacy practices, the Surrogacy Regulation Act of 2021, and its impact on surrogate mothers and intended parents. 

The section 2, of this act states the definitions 

S.2(b) of SRA: “altruistic surrogacy” means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative;

S.2(g) of SRA: “commercial surrogacy” means commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother; 

S.2(r) of SRA: “intending couple” means a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy;

S.2(s) of SRA: “intending woman” means an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy; 

S.2(zd) of SRA: “surrogacy” means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth;

S.2(zg)of SRA: “surrogate mother” means a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb and fulfils the conditions as provided in sub-clause (b) of clause (iii) of Section 4; 

S.38.of SRA: prohibits commercial surrogacy and exploitation of surrogate mothers and children born through surrogacy. It also outlines the penalties for contravening the Act. 

The penalties for contravening the Act include:

• Imprisonment for up to 10 years and a fine of up to INR 10 Lakhs for:

  • Undertaking or advertising commercial surrogacy

  • Sex selection of the child

  • Abandoning or disowning a child born through surrogacy

  • Exploiting the surrogate mother

• Imprisonment of up to 3 years and a fine of up to INR 5 Lakhs for contravening any other provisions of the Act

S.40. OF SRA: deals with the punishment for not following altruistic surrogacy or conducting surrogacy procedures for commercial purposes: 

• The punishment for the first offense is imprisonment for up to five years and a fine of up to Rs. 5,00,000. 

• The punishment for any subsequent offense is imprisonment for up to 10 years and a fine of up to Rs. 10,00,000. 

• Additional fines of up to Rs. 10,000 may be imposed for continuing contraventions. 

The Surrogacy (Regulation) Act, of 2021, permits only altruistic surrogacy. This means that there is no financial compensation involved, and the surrogate mother must be genetically related to the individuals seeking a child. The act also prohibits commercial surrogacy and aims to prevent the exploitation of surrogate mothers and their children born through surrogacy.

This article employs a qualitative research approach, to examine commercial surrogacy in India. It compiles data from academic journals, government reports, and news articles for a comprehensive overview. The analysis highlights key themes, including economic benefits, ethical issues, and regulatory challenges. 

Children are created out of love, not commerce, therefore it's hard to see them as commodities. Poor families, on the other hand, traditionally viewed the children as possible financial assets, balancing the expenses of raising them against the future contributions they could make. Political discussions have been sparked by the commercialisation of surrogacy in nations like India. Experts in law study jurisdictional and contractual difficulties, while feminists analyse the ramifications of women’s bodies being perceived as alienable. The market for surrogates is large and growing, and many would-be parents are keen to use surrogates.

In India, the commercial surrogacy sector, sometimes referred to as "wombs for rent," is expanding quickly. Critics have called it 'parenthood by proxy' and a 'baby booming business,' among other things. This technique transforms a biologically natural function into a business agreement, allowing agencies to make large profits while advertising surrogate services and recruiting women. 

The exploitation of poor women who serve as surrogates, the possibility of a black market, and baby selling are some of the worries surrounding commercialization. Due to the ease of finding women and the inexpensive cost as compared to other nations, India has seen a sharp increase in demand for surrogates. 

Since its legalization in 2002, commercial surrogacy has grown to be a $445 billion industry with at least 350 clinics providing services; India is now the only country to have legalised this practice. 

THE SURROGACY SUPER MART:

India is becoming a surrogacy supermarket with a wide range of alternatives for potential parents to select from:

Charges for surrogates range from INR 1,00,000 to INR 3,50,000, depending on the city, clinic, and brokers. Surrogates need to be married, healthy and have at least one child. Certain couples may prefer the surrogate's history and lifestyle. An estimated INR 66,000 is spent on the IVF procedure, which frequently involves several attempts at embryo transfer.

• The Surrogacy Regulation Act,2021

• The Surrogacy Regulation Rule,2022

• Recent Amendment

The Surrogacy Regulation Act,2021

The Act only allows altruistic surrogacy, which means that the surrogate mother can only get paid for pregnancy-related medical costs because cash or in-kind compensation is not allowed. 

Before proceeding, intended parents need to get two certificates: an eligibility certificate and a certificate of essentiality. A District Medical Board certificate of infertility and a Magistrate Court custody order are required to get the certificate of essentiality. The surrogate also needs to have insurance that covers postpartum issues for 16 months following delivery. The law prohibits commercial surrogacy advertisements and carries fines of up to 10 lakh rupees and a maximum prison sentence of ten years. Practitioners must fulfill certain requirements, and clinics must be registered. Intending spouses should not have any previous children through adoption or surrogacy, be lawfully married, and be of legal age.

According to the Surrogacy Regulation Rules, 2022, registered surrogacy clinics must have a minimum of one gynaecologist, anaesthetist, embryologist, and counsellor on staff. A postgraduate degree in gynaecology and prior expertise with ART procedures are prerequisites for gynaecologists. Clinics must be registered with the relevant government, provide their registration certificate, and have 30 days to contest any decisions made either the rejection of their application or the cancellation or suspension of their registration. Clinics may be inspected without warning to make sure that stored gametes or embryos are not at risk. There can only be three surrogacy efforts, and surrogate mothers must give their free and informed permission. Usually, only one embryo is implanted, but under rare circumstances, three may be permitted. 

The Medical Termination of Pregnancy Act of 1971 must be followed if the surrogate decides to end the pregnancy. Additionally, the intended couple or woman must secure a 36-month surrogate health insurance.

On October 10, 2022, the first change to the Rules was notified, which updated Rule 5(2) on surrogacy insurance coverage. As of the right moment, intending couples must get 36-month insurance and provide an affidavit attesting to it. This affidavit was previously required to be sworn in front of a Judicial or Metropolitan Magistrate. The change streamlines the application process for couples by permitting affidavits to be sworn before a Notary Public or an Executive Magistrate.

In March 2023, the second amendment was issued, which forbids intended couples from using donor gametes as surrogates. This takes the place of a previous clause that permitted the husband's sperm to fertilize a donor oocyte, which had caused ambiguity about the use of donor gametes. It is also made clear by the 2023 amendment that gametes cannot be obtained from surrogate moms. Because of this, parents who have health problems with their gametes may find it difficult to pursue surrogacy in India, where eligibility requirements are now based on age, marital status, and health concerns. 

Baby Manji Yamada v. Union of India 

A Japanese couple in this case went to India to look for surrogacy services. After their divorce, a legal dispute arose over custody of the surrogate child. Increased attention and eventual legislation against commercial surrogacy in India resulted from the Supreme Court's emphasis on the need for thorough laws governing surrogacy.

Jan Balaz v. Union of India 

In this instance, twins born to a surrogate mother for a German couple were granted Indian citizenship by the Gujarat High Court. The decision emphasized parental rights and citizenship complexity in surrogacy agreements, highlighting the pressing need for unambiguous legal frameworks.

It is essential to recognize that the Bill has significant and complex drawbacks, even if its benefits are few. According to Article 21 of the Constitution, the right to life encompasses the rights to procreation and parenthood, as well as the concept of reproductive autonomy. It is important to understand that the government should not interfere with these fundamental rights. Ultimately, individuals should have the freedom to make their own decisions regarding parenthood, whether they choose to pursue it naturally or through surrogacy.

Under the Bill, only married couples are permitted to use surrogates. This exclusion means that LGBTQ individuals, live-in couples, and single, divorced, or bereaved parents are unable to exercise their reproductive autonomy in this way. Article 14 of the Constitution safeguards the fundamental right to equality. However, the Bill restricts surrogacy to married Indian couples, disqualifying everyone else based on age, marital status, sexual orientation, or nationality. This discrepancy raises concerns about the equality requirement and the standard of fair classification under this Article.

Moreover, the Bill conflicts with India's adoption laws. Conditional adoption is allowed for single and divorced parents under Sections 7 and 8 of the Hindu Adoption and Maintenance Act, 1956, as well as Section 57 of the Juvenile Justice Act, 2015. By enforcing strict criteria and eligibility requirements, the Bill significantly limits the autonomy of married couples and prospective surrogates. Critics have highlighted these rigorous conditions, which include stipulations such as being childless, the intended parents having no children for five years, and the surrogate being a close cousin, among other restrictions.

Many women who choose to become surrogate mothers come from low-income families, which is an important issue that the Bill overlooks. These women depend on surrogacy as a crucial source of income. A complete ban on commercial surrogacy would take away their means of support and would compel them to engage in reproductive work without any compensation.

In summary, surrogacy regulations are always changing and differ between nations and areas. Every aspect of the surrogacy procedure is governed by the Surrogacy Regulation Act of 2021 and its implementing regulations, which provide a thorough legal framework for surrogacy in India. However, additional limitations brought about by recent changes to these regulations could present difficulties for those who need donor gametes to become parents. Laws pertaining to surrogacy are designed to balance the interests and rights of all parties. To guarantee adherence to the pertinent rules and regulations, anyone contemplating surrogacy must consult a lawyer.

1. Dev, Surrogacy in India, Legal Service India - Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-782-surrogacy-in-india.html (Accessed: 06 November 2024). 

2. Legality of surrogacy in India: Everything you need to know (no date) Khurana and Khurana. Available at: https://www.khuranaandkhurana.com/2023/06/16/legality-of-surrogacy-in-india-everything-you-need-to-know/ (Accessed: 06 November 2024). 

3. The Surrogacy (Regulation) Act,2021, No.47, Acts of Parliament,2021(India).

4. The Hindu Adoption and Maintenance Act,1956, No.78, Acts of Parliament,1956.

5. The Juvenile Justice (Care and Protection of Children) Act, 2015, No.2, Acts of Parliament,2015