Concept and History of Surrogacy in India

 Surrogacy, a subset of the new bio market, has contributed to an uptick in reproductive tourism over the last two decades. The act of using a surrogate mother is not new. Women have traditionally been chosen to give birth on behalf of others. Recent increases in surrogacy may be attributed to developments in reproductive technology such in vitro fertilisation (IVF), a lessening of cultural biases, and a delay in having children. In the past two decades, it has spread all over the globe. To put it simply, surrogacy is when a woman gives birth on behalf of a couple who are unable to have children for biological reasons. Although the exact number of children born via surrogacy is unknown, but the approximately 25000 surrogate children are born in India every year under commercial surrogacy, including 50% were for foreign couples. 

The word "surrogate" is a Latin word "surrogatus," which means "a substitute." It is a kind of arrangement, where a woman agrees to carry a child to term for a couple in exchange for legal custody of the child after birth. Parenting via proxy is another phrase for this circumstance. One party pays another party to have a woman carry their kid to term in a surrogacy arrangement. A contract creates legal obligations for one or more parties. To paraphrase, "the only thing in commerce may be the object of conventional obligations." When a child is born via surrogacy, the mother is treated like a commodity and the pregnancy is seen as a business transaction. This kind of agreement requires both a physical relocation of the child and a switch in their loyalty. By definition, after a child is born, the mother hands the infant over to the child's sponsors and disappears from the child's genealogy, which is built from the names of the child's one or two sponsors. This seems to be irreconcilable with human dignity even in the few cases when the woman sincerely desires to get this therapy. In surrogacy, the agreement focuses on the child. It is created, executed, and handed over per the terms of a contract, usually for payment. Meanwhile, the woman is seen as only a tool, a source of potential offspring. 

Surrogacy is defined in the Warnock Report (1984) as “the practise of one woman carrying a child for another with the aim of handing over the child after delivery.”  Black’s Law Dictionary (1999) defines surrogacy as “an agreement wherein a woman agrees to be artificially inseminated with the semen of another woman’s husband.”  The New Encyclopaedia Britannica (2010) defines “surrogate motherhood as the practice of a woman bearing a child for a couple in order for them to have children in the traditional way.” According to Wikipedia, “surrogacy is a method or agreement whereby a woman agrees to carry a pregnancy for another person or persons who will become the new born child’s parents after birth. According to the Oxford Dictionary (2020), surrogacy is the process of serving as a surrogate mother or the action of being a surrogate.”  According to Merriam-Webster Dictionary (2016), “it is a social arrangement, generally governed by a contract, where a woman known as a surrogate agrees to carry and give birth to a child for another person or family via ART (Artificial Reproductive Techniques). The ART Bill has defined surrogacy as an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belongs to her or her husband, with the intention of carrying to term and handing over the child to the person or persons for whom she is acting as a surrogate.” (Legal Definition). The following types of surrogacies depend on how the surrogate mother’s genes affect the baby and how she carries it. 

Surrogacy is a relatively new reproductive option in which a woman's womb is used to carry and deliver a child for another couple. Surrogacy emerged as an option for couples struggling with infertility due to medical or other barriers. Two types of surrogacy are seen in practice. 

“Gestational Surrogacy” is a sort of surrogacy in which one-woman (the genetic mother) fertilises the egg and another woman (the surrogate mother) bears and gives birth to the kid. In Vitro Fertilization is typically used to create the embryo from the intended father’s sperm (IVF). It is then delivered to a gestational surrogate, who serves as a human incubator, carrying the parent’s child until delivery. A gestational surrogate bears a kid who is not her biological child. 

 “Traditional Surrogacy” is a kind of surrogacy in which a woman carries a baby for another person, who pays her to do so, and gives birth to the kid. The egg is fertilised using artificial insemination. A typical surrogate does double duty by also acting as an egg donor. Intrauterine insemination (IUI) was formerly utilised to achieve pregnancy in traditional surrogates. To facilitate natural fertilisation of the egg, a medical professional removes the sperm from the intended father and inserts it into the surrogate's uterus. 

Surrogacy with monetary compensation for services as a surrogate is divided into two types:  

“Altruistic Surrogacy” refers to a form of surrogacy where the surrogate mother does not receive any form of financial compensation or incentive for carrying and delivering the child, and instead does so out of philanthropic motives or emotional attachment. The intended parents bear the financial responsibility for medical expenses, maternity clothing, and other associated expenses incurred during pregnancy and child birth. When a surrogate mother offers to bear a child for the intending parents without being compensated, this is known as altruistic surrogacy. To put it another way, this is practically free surrogacy. 

“Commercial Surrogacy” is a form of surrogacy in which the surrogate mother receives monetary compensation from the biological parents of the child in exchange for allowing them to use her uterus to conceive & carrying the child for nine months, and giving birth to the child. The intended parents force the surrogate to sign a paper promising that they would not take legal custody of the child. The surrogate, in exchange for compensation, waives any parental rights, she may have to the child. A prospective parent gives a cash incentive in return for a willing surrogate in commercial surrogacy. The practise of commercial surrogacy is gaining recognition. Commercial surrogacy was legalised in India between 2002-2015. 

Government of India took a stand to disallow the commercial surrogacy in 2015 by guidelines and produced the Surrogacy (Regulation) Bill 2016 in Lok Sabha, which was passed with several amendments in 2018. Rajya Sabha constituted a committee for discussion on the Surrogacy (Regulation) Bill, 2019, which was ultimately passed in 2021 and released along with Assisted Reproductive Technology (Regulation) Act 2021. The Surrogacy (Regulation) Act, 2021 permits charitable surrogacy, preventing those with financial means from abusing option of surrogacy. It prohibits commercial surrogacy, as well as the trade of human gametes and embryos. To avoid the exploitation of women, it maintains strong check and balance. It makes an effort to cut out the predatory middleman. It safeguards and upholds the value of motherhood as well as any prospective parental right over the child.  This Act also put conditions to utilize surrogacy services. 

https://www.jimsgn.org/

Prof. (Dr.) Pallavi Gupta, HOD, Department of Law