Since time immemorial, every living being on this planet has been endowed with the irreplaceable gift of- reproduction. Homo-sapiens are not exceptions and rather have enjoyed this gift more than any other creature. Man and woman have entered conjugal relationships to procreate and enjoy the boundless joy of parenting. Unlike animal world, humans are most concerned with their ability to reproduce and if for any reason they are devoid of this capability, it wreaks havoc in their life. Adoption surely is an alternative but remains deeply unpopular among couples seeking to have a biological child of their own. However, advancement in technology has given fillip to science of assisted reproduction where different methods are employed to incubate either egg or embryo. This has contributed in a major fashion to allay anxiety and fear among childless couples who earlier felt helpless. Surrogacy is one such method which has been tremendously famous among barren couples both in India and other countries.
Surrogacy can be explained as a contractual agreement between commissioning parents and the surrogate mother whose womb is hired to give birth to the child sharing DNA with commissioning parents. There are two types of surrogacy. First is Gestational Surrogacy – in layman words it is IVF (In-Vitro Fertilization). This kind of technique involves transfer of embryo through IVF with child not genetically linked to the surrogate mother. Second is Traditional Surrogacy employing infusion of eggs naturally or artificially with child genetically related to the surrogate mother. With commodification of surrogacy, it has shaped into a fledgling industry with estimated annual turnover of around $2 billion. Stricter control over surrogacy in foreign countries and no legal mechanism in place to regulate this new-born industry in our country, India has become one of the most favored nation among international clients with their share as high as 80%. Believe it or not India is International Surrogacy destination.
According to Indian Council of Medical Research (ICMR) Guidelines the commissioning parents will be the legal parents of the child; even the birth certificate will carry their names. The child will be legal heir of the commissioned parents and share nationality of his/her parents. Under the Indian Law, the child has right to seek information about surrogate mother after completing 18 years of age. To safeguard the rights of the child, Indian law makes it mandatory for the commissioned parents to take the responsibility of the child. In case of abandoning of child, the intended parents can be challenged in court on the basis of the surrogacy contract signed by them.
Surrogacy Bill 2016
What is surrogacy bill and what premise led to its birth. With increase in number of potential commissioning parents seeking to hire the services to fulfill their dreams, number of cases involving violation of contract has come to light. In one such case, a Japanese couple divorced while the surrogate mother was gestating, ensuing a prolonged legal battle with child being handed over to the grandmother. The child however will not be given the citizenship of Japan as surrogacy is not recognized. In another incident, Australian couple fled from the country with only one of the twins exposing vulnerabilities in the extant surrogacy system in our country. There was an exigent requirement to rein in this industry with tighter controls with proper checks and balances. Therefore the government of India proposed Surrogacy Bill 2016, passed by cabinet and pending for ratification in the parliament. The most poignant feature of this bill is Altruistic Surrogacy limited to only Indian couples. The bill permits Indian couples to seek help within their family and will not involve any monetary benefits for the surrogate mother other. Commissioning parents will not be allowed to award any gifts other than cost of medical expenses. Following riders has been placed for couples seeking surrogacy:-
- Couples who cannot naturally have child or have lack of or do not have access to other Assisted Reproductive Technologies.
- Indian infertile couple between the age of 23-50(woman) and 26-55 (man) married for 5 years or more and do not have a surviving child.
- Surrogate mother should be a close relative; she need not be a blood relative.
Although benign in its intentions this bill has raised eyebrows from all sections of the society. Many have hailed it as a measure that will thwart exploitation of women in the name of commercial surrogacy. They argue that in the patriarchal structure of our society where women does not have representation for even her rights, she may be forced to enter in commercialized surrogacy. Others however do not have favorable opinion of the bill. Their argument is pivoted on the fundamental right to reproduction and classification of couples on the basis of sexuality as only heterosexual couples are entitled under the provisions of the bill. How this bill proves to be an effective deterrent against violations remains to be witnessed. The bill has stirred a nationwide debate with experts, human rights activists, women from all spheres of society bandying pros and cons. It however remains beyond doubt that Surrogacy should have some regulations so that nobody in the society is exploited. For couples who do not fulfill the requirements/ criterions can always go for adoption, not only completing their family but also giving a happy and prosperous life to an orphan child.