Surrogacy laws-in-India

1. SURROGACY LAWS IN
INDIA
BY
APARNA VENKATARAMAN

2. WHAT IS SURROGACY?
• Surrogacy is defined as “the practice by which a woman
(called a surrogate mother) becomes pregnant and gives
birth to a baby in order to give it to someone who cannot
have children.”
• It is one of the types of Assisted Reproductive
Technologies, commonly referred to as ART.

3. ASSISTED REPRODUCTIVE TECHNOLOGY - ART
• The second baby born through ART in the entire world was in India.
• ART is the collection of all the procedures, which allow for infertile couples to become
parents. It consists of
- IVF (In Vitro Fertilisation)
- Ovulation Induction (OI)
- Reproductive Surgery
- Gamete Intrafallopian Transfer (GIFT)
- Surrogacy
- Artificial Insemination (AI)
- Preimplantation Genetic Diagnosis (PGD)

4. ORIGINS OF SURROGACY AND ART
• Surrogacy can be found in the Babylonian Code.
• It is claimed in the Bhagvata Purana that the birth of Lord Krishna involved surrogacy.
When Krishna, the 7th son of Devaki and Vasudev was born, the Gods interfered (for
Kamsa had killed the previous six children) and ensured that Krishna was transferred to
the womb of Rohini, who lived with Yashodha (Rohini’s sister).
• The birth of the 100 children of Gandhari and Dhirutharashtra, the birth of Drishtadyumna
and Draupadi, also are through a form of ART as well.
• Surrogacy has been evidenced in various tribes, where the families wished to carry on
their family line.

5. TYPES OF SURROGACY
• Medically speaking, there are two types of surrogacy – traditional and gestational.
• Traditional Surrogacy involves using the egg of the surrogate mother and the sperm of the
father.
• Gestational Surrogacy involves placing a fetus creating using IVF in the womb of a
carrier, or the surrogate mother. This means that the baby is not genetically related to the
surrogate mother, as opposed to following the traditional method.
• Legally speaking, there are two types of surrogacy – altruistic and commercial.
• Altruistic Surrogacy refers to the surrogate mother being one, without taking any
compensation for this process. The medical expenses and the insurance can be borne by
the commissioning parents.
• Commercial Surrogacy refers to the process where the surrogate mother does take
compensation for the process of birthing the child/children.

6. WHY IS IT IMPORTANT?
• In the Indian context, being a surrogate means money, especially for the people who are below the poverty line.
• These people, mostly in the age group of 26 to 30, lend their wombs to ensure that they can avail the basic
necessities of life.
• The surrogate women are mostly married, whose husbands have deemed that surrogacy is the best way of
earning money. This is because, their financial situation is next to hopeless, which leaves them desperate for
money, for they are jobless or have very low income jobs.
• Moreover, these surrogates already have their own child/children which is a method of proving their fertility.
They seem to at least have two children, and they enter into at least one surrogacy contract in their life.
• These people are made aware of this option through agents. These agents are the link between the
commissioning parents as well as the surrogate mother. He delivers the baby/babies to the parents and the
money to the surrogate, while taking a huge commission.
• There have been various suits filed as well, by the parents stating that the child is born with an anomaly or that
the child is the wrong gender. All these problems make this a problem that needs to be given attention to.

7. ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION ) BILL, 2010
- RELEVANT SECTIONS
• Legally enforceable agreement between the commissioning parents and the surrogate mother (21-35 age
group).
• The mother must undergo tests that will prove whether or not the pregnancy will be a healthy one.
• Relinquishment of all rights to the child by the surrogate mother. Only 5 times can a surrogate mother
become pregnant, either through surrogacy or in her marriage, and only thrice can she agree for surrogacy
to the same couple.
• The child so born, regardless of any issues that the child might have, has to be accepted by the parents and
is considered to be the legitimate child of the parents, regardless of their status.
• The hospital/clinic, where the surrogate mother seeks medical assistance from must be made aware of the
fact that she is a surrogate mother, and the details of the commissioning details must be made available
too.

8. ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION ) BILL, 2010
- RELEVANT SECTIONS (CONTD.)
• A couple can go for surrogacy only with one person at any point of time.
• The surrogate mother has to agree that no task that could potentially harm the fetus will be undertaken by
her in the course of the pregnancy.
• A foreigner(s)/NRI, who seek surrogacy will have to appoint a local guardian to whom the baby/babies
will be delivered upon the birth. The local guardian will be responsible for the child, till the parents take
the custody of the child. If the child is not taken by the parents within 1 month of its birth, then the child
should be handed over to the adoption agency. The country that the foreigner belongs to must be a country
that allows for surrogacy. The proof of the parents claiming themselves to be foreigner(s)/NRI should be
furnished to the hospital/clinic or wherever the surrogate mother is availing medical assistance from.
• The child will not be considered to be an Indian. The nationality of the child will be that of the
father/mother as the case maybe.

9. THE SURROGACY REGULATION BILL, 2016 – RELEVANT SECTIONS
• S 4(b): Only Altruistic Surrogacy is allowed
• S 4(iii)(a), S 4(iii)(b), & S 4(iii)(c): Both the surrogate mother and the commissioning parents need to
apply and obtain the certificates from the appropriate authority – these certificates state that these
participants are eligible for surrogacy
• S 7: The parents are prohibited from abandoning the child after the birth by the surrogate mother; S 9: The
surrogate mother cannot abort the child, unless specified by the Medical Termination of Pregnancy Act.
• S 4(i), 10, 11, 12, & 13: Surrogacy Clinics
• S 14 & S 23: Creation of National Surrogacy Board (NSB) and respective State Surrogacy Boards (SSB),
with the NSB laying down guidelines and the SSB ensuring that these guidelines are implemented.
• S 14(2): Constitution of the NSB; S 24: Constitution of the SSB

10. THE SURROGACY REGULATION BILL, 2016 – RELEVANT SECTIONS (CONTD.)
• S 35: It is an offence to practice commercial surrogacy and exploit the surrogate mother as
well as the children (fine payable till Rs. 10 Lakhs and imprisonment of not less than 5
years – S 36)
• S 40: Cognizable, non-bailable, non-compoundable offence
• S 39: The BOP is on the spouse of the surrogate mother / commissioning parents /
relatives of the surrogate mother to prove that she was not forced.

11. ANALYSIS OF THE BILL – PROS
• This Bill bans Commercial Surrogacy, based on the moral considerations involved.
• Strict penalties have been imposed in the form of payment of a fine that might extend to
Rs. 10 lakhs and an imprisonment period of not less than five years, which will
substantially reduce the exploitation that takes place in this “business”.
• Allowing altruistic surrogacy would be like a light in the end of the tunnel for infertile
couples to have a child of their own.
• The scope is wider than adoption in a sense, for it allows for couples who have not found
the right child to have one for themselves.

12. ANALYSIS OF THE BILL – CONS
• This Bill prohibits Commercial Surrogacy, which is according to the Law Commission Report,
“ART industry is now a 25,000 crore rupee pot of gold.” The accounting of this income would
boost India’s economy.
• The altruistic surrogacy is only allowed for straight couples – it is not allowed for the LGBTQ
community or single parents as well.
• There is no time limit within which the afore-mentioned certificates will be granted, and more
so, there is no redressal option available to the parties involved as well, in the event of the
certificate not being granted.
• The definition of infertility as given in the act is inadequate – it does not account for all the
opportunities whereby the couple would want to opt for surrogacy, thereby restricting the
scope of altruistic surrogacy as well.

13. CONCLUSION
• This Bill is a good start for regulating the surrogacy business in India.
• But there are internal flaws in the Bill, which have been mentioned in this presentation,
that should be rectified before the Bill becomes an Act.
• The moral perspective of surrogacy should change – people must not treat it with disdain;
they should appreciate it for the benefits that it is creating across the world.

14. THANK YOU!