Surrogacy in India and other European States

1.Introduction

Let us meet Madhav and Sujata. They really want to have a baby and experience the joy of parenthood and bring life into their dull lives. But it is not easy for them to have a baby, They are not able to conceive children due to the problems they have. Now this is where surrogacy comes in helping Madhav and Sujata in having a child of their ow. Similar to Madhav and Sujata many other families face problems due to which they are not able to conceive children and the aim of surrogacy is to address these problems.

2.Main Body

Surrogacy is an arrangement in which a women agrees to deliver a baby in behalf of a couple or person so that they can have the child after it is delivered and raise them on their own and the person or couple will become the parent or parents of their newborn child. People seek surrogacy when the couple or person does not wish to carry a pregnancy themselves, when pregnancy is medically impossible , when it may harm the mother or when a single man or a same male sex couple wish to have a child. The surrogate sometimes also called a gestational carrier is a women who conceives and gives birth to a child for the couple or person who intend to be the parents of the newborn child. Although the process of surrogacy seems to be a win win situation for all the parties concerned it involves various social ethical and moral issues. There are mainly two types of surrogacy Traditional and Gestational surrogacy. In traditional surrogacy, the surrogates egg is fertilised with the help of the person intending to be the father or with the help of a donors sperm (1). Insemination of the egg of the surrogate can be either through the natural insemination which is through sexual intercourse or Artificial insemination. Gestational surrogacy is also known as full surrogacy is a process in which an embryo is implanted into the uterus of the surrogate through IVF also known as in vitro fertilization(2) In gestational surrogacy, the child is not biologically related to the surrogate, who is often referred to as a gestational carrier. Instead, the embryo is created via in vitro fertilization (IVF), using the eggs and sperm of the intended parents or donors, and is then transferred to the surrogate(3). Many people opt for surrogacy for various reasons. They are mostly due to the fact that the women is not able to conceive children due to medical reasons such as risk of death , infertility, same sex relationships. Surrogacy can be widely classified into two categories on the basis of cost. The first is commercial surrogacy in this the surrogacy agreement involves there being a legal arrangement in which the person is compensated monetarily in addition to the medical cost of reimbursement for the purpose of providing this service. When a surrogate mother participates in commercial surrogacy, she signs a legal document in which she denounces any parental rights towards the child born afterwards. World wide commercial surrogacy is banned in some places and is accepted in others. But many international parents who wish to get a surrogate child travel to other nations in order to conceive the surrogate child and to use commercial surrogacy(4). India too offered commercial surrogacy between the time periods of 2002- 2015 and after that commercial surrogacy was banned in Inda. Some countries that offer commercial surrogacy are some states in USA, Greece, Ukraine and Kenya. The other form of surrogacy cost wise is Altruistic surrogacy. In this form of surrogacy the surrogate mother is not paid anything except the cost of reimbursement of medical costs incurred for the process and the reasonable expenses associated with pregnancy including the medical insurance. When a surrogate chooses an altruistic type of surrogacy, their aim is to assist the person in achieving their goal of being a parent or parents. It can be a friend, a relative or even someone unrelated. The surrogate does not receive any sort of financial compensation in the process of being a surrogate from the to be parent or parents. It is more widely accepted in various legal jurisdictions and it is legal in India too(5). Other countries in which altruistic surrogacy is legal in is Greece, UK, Belgium and Denmark.

Surrogacy in India is regulated by the Surrogacy Regulation Act 2021. Under this act, a woman who is a widow or a divorcee between the age of 35 to 45 years or a couple, defined as a legally married woman and man, can avail of surrogacy if they have a medical condition necessitating this option. The intended couple shall be a legally married Indian man and woman, the man shall be between the ages of 26-55 years and the woman shall be between the ages of 25-50 years, and shall not have any previous biological, adopted, or surrogate child(6). Right now, in India commercial surrogacy is banned and can be punishable with fine or jail or both but between the time period of 2002 and 2015 it was legal and was one of the major places of international surrogacy. Right now in India altruistic surrogacy is the only legal way to have a surrogate child.

The banning of commercial surrogacy in India moves from the right based approach to a needs way approach thus removing a womens right to autonomy to make their own reproductive decisions and right to parenthood. This act reinforces traditional patriarchal norms of our society that attributes no economic value to womens work and, directly affecting the fundamental rights of the women to reproduce under Article 21 of the constitution. The biggest critique to the present act is that it excludes some people from availing the form of surrogacy like people from LGBTQ+ committee, unmarried women , single men and same sex couples from availing the same. This amounts to discrimination based on marital status, gender, and sexual orientation, and denies them the right to form a family of their choice(7).

3.CONCLUSION

While the Surrogacy (Regulation) Act of 2021 attempts to regulate surrogacy in India, it falls short of meeting the Golden Triangle Test of protecting fundamental rights guaranteed by the Indian Constitution. The government should update the law to make it better and fairer for everyone. This means recognizing where it falls short, fixing the problems, and finding a fair balance for everyone involved. The new rules should also consider how society is changing to make sure they still make sense and work well for everyone. It's important to protect people's rights while dealing with the issues around surrogacy(7.Narayan et al).

CITATIONS

1. Creative family connections. Traditional Surrogacy vs. Gestational Surrogacy: Faqs. Creative Family Connections, 29 Nov. 2023, www.creativefamilyconnections.com/blog/traditional-surrogacy-vs-gestational-surrogacy/#:~:text=A%20traditional%20surrogate%20typically%20becomes,then%20implanted%20into%20her%20uterus.

2. Brinsden, Peter R. Gestational Surrogacy. Textbook of Assisted Reproductive Techniques, Taylor and Francis, London, UK, 2005, pp. 855-867.

3. Global star surrogacy, Global star surrogacy. What Is Surrogacy? Global Star Surrogacy, 2 Dec. 2023, globalstarsurrogacy.com/what-is-surrogacy/.

4. Brando, Pedro, and Nicols Garrido. Commercial Surrogacy: An Overview. Revista Brasileira de Ginecologia e Obstetricia?: Revista Da Federacao Brasileira Das Sociedades de Ginecologia e Obstetricia, U.S. National Library of Medicine, Dec. 2022, www.ncbi.nlm.nih.gov/pmc/articles/PMC9800153/#:~:text=Objective%20Surrogacy%20is%20the%20process,is%20known%20as%20commercial%20surrogacy.

5. Tieu, M. M. Altruistic Surrogacy: The Necessary Objectification of Surrogate Mothers. Journal of Medical Ethics, vol. 35, no. 3, 2009, pp. 17175. JSTOR, http://www.jstor.org/stable/27720287 . Accessed 16 Jan. 2024.

6.Indulia, Bhumika, et al. Surrogacy (Regulation) Act, 2021. SCC Blog, 27 Dec. 2021, www.scconline.com/blog/post/2021/12/27/surrogacy-regulation-act-2021/.

7. Narayan, Gaurang, et al. The Surrogacy Regulation Act of 2021: A Right Step Towards an Egalitarian and Inclusive Society? Cureus, Apr. 2023, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10199460/.