A Critical Study on The Socio-Legal Impact of Legalizing Surrogacy in India

Abstract

In India, bearing children acknowledges a woman's femininity and makes marriage worthwhile. Indian society is so embedded with the necessity for genetic offspring that "infertility" is stigmatized as a marital issue. According to the Indian Constitution of 1950 and the Universal Declaration of Human Rights of 1948, every person has the freedom to create a family of his or her choosing using any method of reproduction. The quote of Saint Augustine that "A marriage without children is like the earth without the sun" is true. Artificial insemination (AI), often known as assisted reproductive technology (ART), is the second option available on the market to replace natural conception. The intending parents favor surrogacy as a different way to have a biological kid. Due to issues including irregular menstrual cycles, low sperm counts, low-quality egg/sperm production, lifestyle changes, postponed weddings, late motherhood, and other associated issues, surrogacy is very common in both rural and urban India. In a recent study report, Global Market Insights, Inc. anticipated that by 2025, there will be more than 27.5 million surrogates in the world. Surrogacy has been used in homosocial cultures in India since ancient times, but it was subjected to legal scrutiny and ethical debate in the case of Baby Manji Yamada v. Union of India (2008). The ambiguous result of this case, as well as the lucrative surrogacy market, pushed the Indian government to legalize transnational surrogacy in India. By 2010, Gestation for Others (GPA), also known as surrogacy, had become a common practice in the Indian market, with no laws in place to regulate or govern it, paving the way for a new line of work for poor women who acted as substitute mothers (surrogates) and carried a child for the intending couple in exchange for 'yellow metal'. In 2012, India was designated as a "surrogacy center" or "baby cradle". Due to an increasing number of examples of Indian surrogates being exploited by intending foreigners, the Indian government barred international gay couples and single persons from using surrogacy services in India in 2015, marking the first move in curbing the expanding surrogacy market. The lucrative surrogacy sector suffered a second significant setback in 2018 when the Lok Sabha passed the Surrogacy (Regulation) Bill 2018, outlawing commercial surrogacy entirely and only allowing altruistic forms of replacement reproduction. This ban was enacted in reaction to a few occurrences in which vulnerable, destitute surrogates who were compensated were used, harassed, and regarded as mere carriers (womb for hire). The rich intended parents treated the surrogate child as though it were a product for "sale." In regard to the act of paid surrogacy, the moral, ethical, and degrading aspects of motherhood were examined. Attempts to pass substantive legislation between 2008 and 2020 failed due to changes in strategy and shifting conditions. In the first Surrogacy (Regulation) Bill of 2014, which permitted married couples, live-in partners, and abroad couples to choose paid or altruistic surrogacy, the concepts of infertility, intended parents and surrogate moms were not specified. Surrogacy could be performed by a woman for up to four live births. This law's draught version was the most liberal. In the second and third Surrogacy (Regulation) Bills from 2016 and 2019, the idea of infertility was reduced to a maximum of five years of unprotected coitus. It also provided surrogate mother insurance coverage (up to 16 weeks) and defined the intended relationship. Surrogacy was denied to live-in partners, LGBT couples, and international couples. It let Indian couples who did not have a surviving healthy biological or adopted child use close relatives as surrogates in a humanitarian capacity. Women were allowed to be surrogates once in their lifetime; however commercial surrogacy was completely prohibited. This was a harsh law that outlawed both paid and international surrogacy. On December 8, 2021, the Rajya Sabha passed the fourth Surrogacy (Regulation) Bill, which included the Select Committee's (2020) recommendations. This measure repeals the term "proven infertility" as well as the 5-year waiting period for using a surrogate. Infertility is considered a "medical condition" that must be approved by the District Medical Board. Before beginning the surrogacy procedure, the intending parent must get a Certificate of Need and Eligibility. With the concept of 'insurance' enlarged to include medical fees, health concerns, and other authorized charges given to the surrogate mother during the surrogacy procedure, the surrogate's insurance coverage has been increased from 16 to 36 months. The National Surrogacy and Assisted Reproduction Commission supervises and controls surrogacy and assisted reproduction. According to the foregoing, the legislature's intentions were vague and strongly impacted by the situation at the time the law was passed. The commoditization of the womb and the true need of the infertile group to start a family, which extends beyond patriarchal undertones, are not differentiated in an intelligible way by drafters. The Legislature has taken away the right to bodily autonomy, the freedom of LGBT persons to pick their own partners for live-in relationships, and the rights of single men, divorcees, widowers, and parents of biological or adopted children. However, the surrogate, the core character of this entire story, has been forced into reproductive trafficking (altruistic surrogacy) or has been denied a source of money (livelihood through paid surrogacy). In both cases, she had denied her right to life and liberty, in violation of Article 21 of the Indian Constitution, making her life unpleasant and vulnerable to abuse. In the case that the intended couple's marriage fails, the surrogate child's best interests are not considered. In these cases, the law does not take supportive parenting of the abandoned child into account. The 1989 United Nations Convention on the Rights of the Child (UNCRC) does not consider a child's linked rights, such as the right to care, the right to know one's origin, the right to identity, and the right to be advised before/after tracing origin. The establishment of counseling facilities and sessions for surrogates and surrogate children is not included in the statute. Through the course of this dissertation, the researcher is striving to identify adequate responses to the aforementioned concerns. To begin, the term "commercial" will be modified to "compensatory" to allow the surrogate mother to exercise her right to bodily autonomy while also earning a living (remuneration for her services). A Surrogacy Arrangement Contract has been designed to notify the parties, including Assisted Reproductive Technology clinics, the Surrogate, and the intended parents, of their rights and obligations, and to hold them accountable for any violations. The building of counseling centers which is required by assisted reproductive technology clinics, as well as procedures to achieve supportive parenting for the surrogate child, are also underlined. At level 1 (ground level), this thesis offers a point on how to understand infertility and how to deal with it. Surrogacy is required due to women's inability to conceive naturally as a result of a number of problems that have gone unresolved by the time, they reach adolescence. Infertility is recognized and treated utilizing other means at a higher level, increasing the need for surrogacy. The Central and State Governments bear major responsibility for addressing infertility through public education programs, sensitization health clinics, and camps, with the goal of treating any difference in reproductive health at its early stage (puberty level) and preventing primary infertility. The State should consider the challenges of labor well as the opinions of the surrogate women who serve as the story's protagonists. Instead of portraying these women as oppressed and defenseless state should offer them with true empowerment and rights