Issue of Surrogacy

Issue of Surrogacy and Surrogacy Law in India

This article deals with ‘Issue of Surrogacy and Surrogacy Law in India  – UPSC.’ This is part of our series on ‘Science and Technology’ which is important pillar of GS-3 syllabus . For more articles , you can click here

 

 

Surrogacy  and Issues

  • In surrogacy: Wife’s egg is fertilized with husband’s sperm through in-vitro fertilization (IVF) and an embryo is created. This embryo is implanted in the womb of a “surrogate mother” who will carry it for nine months and deliver the baby.
  • Surrogacy in India was estimated to be a $ 2.3 billion industry, but surrogate mothers were paid tenth of what they get in  US.
  • India has emerged as reproductive tourist industry.

 

 

Issues

  • Exploitation of Surrogate Mothers
  • Medical problems wrt foetus (eg : Surrogate child is disabled or having any genetic disease) and parents refuse to accept child
  • Citizenship Issues in case of foreign couples
  • Homosexual couples and single parent going for surrogacy

 

Anti Surrogacy vs Pro Surrogacy Debate  (General)

Anti-Surrogacy
  • Physical stress , risk and emotional trauma to surrogate mother on  abrupt separation from  baby carried in the womb for nine months .

 

  • It is inhumane to use a woman’s social and economic vulnerability to commercially exploit her womb 

 

  • Child face health concerns such as the need for the child to be breast-fed for at least six months

 

  • The use of surrogacy  cheapening the idea of having child to commodity 

 

  • Sex selection is the ‘dirty secret’ of commercial surrogacy. (foetus that is discarded usually being female).

 

Pro-Surrogacy
  • Surrogate mother is asserting her independent agency to make choices to better her life

 

  • If Government  makes a law to ban surrogacy in India, then market will go underground and the surrogate mothers would be exploited  further. Surrogacy should not be banned, it should be regulated.

 

Need for Law

Post 2000
  • Surrogacy became an important medical industry in India with revenue of more than $ 2.3 Billion
2008
  • Baby Manji Case (explained below)
  • Need was felt to have a comprehensive law on Assistive Reproductive Techniques (ART)
2014 Assisted Reproductive Techniques Bill was introduced (covering all aspects)
2016 Surrogacy Bill was introduced by NDA government banning commercial surrogacy and allowing just Altruistic Surrogacy .
Present Status 2019  : Passed

 

 

 

Earlier there wasn’t any law regarding Surrogacy. In absence of law many problems were coming

  • Medical problems wrt foetus (eg : Surrogate child is disabled or having any genetic disease) and parents refuse to accept child

 

  • 2008 Baby Manji Case –  Baby Manji was commissioned by Japanese parents (through an unknown egg donor and husband’s sperm) and was born to a surrogate mother in Gujarat. The parents divorced before the baby was born. The genetic father wanted the child’s custody, but Indian law barred single men from it, and Japanese law didn’t recognise surrogacy. The baby was ultimately granted a visa, but the case underscored the need for a regulatory framework for surrogacy in India.

 

  • Exploitation of women by commercialising their womb.

 

Provisions of the Surrogacy  Bill

  • It bans commercial surrogacy.
  • Foreigner nationals including NRIs can’t get Indian surrogate mothers. 
  • It legalises surrogacy for heterosexual  Indian couples with proven infertility
  • The length of your marriage matters. You have to be married for at least five years
  • You can’t pay a surrogate mother
  • You can only approach a close relative for surrogacy
  • If you have a child, you can’t try for another one via surrogacy. 
  • Surrogacy will be allowed only once. 
  • Surrogacy Regulatory Bodies: The government has proposed that it will establish a
        • National Surrogacy Board at the central level
        • State Surrogacy Boards in the states  

They will overlook all cases of surrogacy and regulate hospitals and clinics that offer this in India.

 

Against Points

  • Outright ban on surrogacy  will  push this industry underground  , increasing the vulnerability of women even more. This happened in Thailand

 

  • Bill  borrows heavily from UK’s altruistic surrogacy Bill, but has changed the British provision of allowing only blood relatives to “close relatives” . Close Relatives is a vague term open to legal challenges

 

  • Violates Right to Equality: Restricting surrogacy to married Indian couples and disqualifying others on the basis of nationality, marital status, sexual orientation or age, does not appear to qualify the test of equality .

 

  • Violate Article 21right to life includes the right to reproductive autonomy 

 

  • Supreme Court decriminalised homosexuality. Unfortunately, the Bill, scarcely bears any imprint of the verdict & continues to speak the discriminatory language of Section 377.

 

  • Don’t cover all aspects of Assisted Reproductive Technniques : ART is complex subject . Surrogacy is only one part of it

 

  • The bill violates  UNDHR.  Articles  16 of the United Nations Declaration of Human Rights, gives right to men and women of full age to found a family. 

 

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