SURROGACY IN INDIA

INTENDED PARENTS

ALL YOU NEED TO KNOW ABOUT COMPLETING A SURROGACY IN INDIA

Surrogacy in India has been a popular option for intended parents, but is it possible for you?

 Surrogacy Surrogate mother is the substitute for the genetic-biological mother. There are two types of surrogacy- traditional surrogacy and gestational surrogacy.

In traditional surrogacy, the child is thereby genetically related to both the surrogate mother, who provides the egg, and the intended father or anonymous donor.

In gestational surrogacy, the child is thereby genetically related to the woman who donated the egg and the intended father or sperm donor, but not the surrogate.

Commercial surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents.

Legal Insights (Evolution of Surrogacy Laws)

India legalised commercial surrogacy in 2002, the immense growth of surrogacy in India led to an impeccable growth of several commercial firms and firms claiming speciality in surrogacy law and guiding and assisting foreign tourists who came in search of having an Indian mother rent her womb for the blessing of a child. Such arrangements can be considered to be exploitative in nature as they are not only encouraging baby selling but also diminish the dignity of women's reproductive capacities and the inherent value of the children by modifying them. This paved way for the establishment of various foreign companies in India, assisting people coming round the globe and help them find a surrogate Indian mother, assisting the foreigners in paper work related to surrogacy and assisting the child in acquiring a passport and a visa to depart from the country.

The 228th report of Law Commission of India has recommended for prohibiting commercial surrogacy and allowing ethical altruistic surrogacy by enacting suitable legislation. One of the prime reasons for surrogacy services to bombard in India is poverty, which makes poor Indian women rent her womb for money or other essential commodities.

In 2005, the Indian Council of Medical Research (ICMR) issued guidelines to regulate surrogacy arrangements. The guidelines stated that the surrogate mother would be entitled to monetary compensation, the value of which would be decided by the couple and the surrogate mother. The guidelines also specified that the surrogate mother cannot donate her own egg for the surrogacy and that she must relinquish all parental rights related to the surrogate child.

Case Laws
# Baby Manji Yamada vs Union of India (AIR 2009 SC Page 84)
Baby Manji Yamada was a child born to an Indian surrogate mother for a Japanese couple who before a month of the child’s birth separated and the future of the child was left in dark. The biological father, Ikufumi Yamada wanted to take the child to Japan but the legal framework had no such provision for such a case nor did the Japanese government permit him to bring the child back home. In the end, the Supreme Court of India had to intervene and the child was allowed to leave the country with her grandmother. The biggest impact of the Baby Manji Yamada decision has been that it spurred the government of India to enact a law regulating surrogacy.
The Supreme Court of India in 2008 held surrogacy permissible in India after Manji’s case which increased the international confidence in going in for surrogacy in India.

# Jan Balaz Vs Anand Municipality
Gujarat High Court ruled that the birth certificate of the child born through surrogacy will carry the name of the surrogated mother as against the biological mother and the child would be granted a passport of India which certifies him as the Indian Citizen and the surrogate mother in turn had to give the child to German couple in adoption, who had sought the sercices of Indian surrogate mother.

The Supreme Court is still seized of an appeal against this decision and during its hearing Supreme Court felt a grave need on the subject which made way for the proposal of the bill of Parliament.

All these cases have provoked academic interest and has brought the surrogacy ban bill into existence that rules out surrogacy rules for foreign citizens approaching Indian mother.
The ban is already in place through a letter dated 28th September,2015 from ICMR to all clinics in India that directs them not to assist foreign couples on having a child through an Indian surrogate mother.

For those considering an international surrogacy, there’s usually one specific process they consider first: surrogacy in India.

Indian surrogacy has long been a popular option for international intended parents but, like most international surrogacies today, has recently gone through major legislative reform to bring regulation to the surrogacy process. Because of this, if you’re an international intended parent considering surrogacy in another country, surrogacy in India likely won’t be the answer for you.

Here’s what you need to know if you’re considering a gestational surrogacy in India:

Is Surrogacy Legal In India?

What had once been a popular destination for international intended parents no longer became an option in 2015, at which time the Indian government passed new regulations on the surrogacy process. Today, Indian surrogacy laws make it illegal for foreign intended parents to complete a surrogacy in India. The only people who can complete a commercial surrogacy in India today are Indian intended parents who have been married for at least five years.

The ban on foreign intended parents in 2015 was only the start of legislation regulating surrogacy. In December 2018, after almost two years of debate, an Indian surrogacy law was passed that:

• Made commercial surrogacy illegal
• Only allows altruistic surrogacy for needy, infertile Indian couples
• Requires intended parents to be married for five years and have a doctor’s certificate of their infertility
• Restricts women to being surrogates only once, and only if they are a close relative of the intended parents, are married and have a biological child
• Bans single parents, homosexualsand live-in couples from surrogacy

These changes reflect a new era of surrogacy in Asia; other countries like Thailand and Nepal have recently implemented surrogacy bans, as well.

Why Has Indian Surrogacy Been Banned?

It’s hard to pinpoint exactly one reason why surrogacy in India has been banned for international intended parents, but it’s easy to identify some reasons that may have played a role in this decision by legislators.

Like all international surrogacies in lesser-developed countries, the protections available for intended parents and surrogates are less available — and have led to harmful results. When Indian surrogacy first became a booming industry, there were no regulations in place, and unsafe and unethical practices developed in response.

The women who chose to become surrogates in India during this time were subjected to unethical treatment, poor living conditions and exploitation. To keep up with demand from international intended parents, Indian surrogacy agencies effectively ran “baby factories,” where Indian women were forced to live until they gave birth to the intended parents’ babies — with usually no assistance for the family they had left behind while pregnant.

In addition, the surrogates in India only received a fraction of the expenses that intended parents paid the surrogacy agency — only $4,000 to $5,000 for compensation. With agencies charging more than double that in total, surrogates were commonly exploited in commercial surrogacy. Their poverty and lack of education drew them back into the surrogacy process over and over again for this financial gain, and their health declined as they effectively became “baby-making machines” year after year. They also did not receive the kind of supportive services they needed for themselves and their family during this emotional journey.

In response to these stories emerging over time, the Indian government attempted to take steps to make the process safer for all involved. Unfortunately, that resulted in a restrictive process that has made the process more difficult or completely impossible, rather than safer.

Will Indian Surrogacy Ever Be Legal Again?

It’s hard to speculate about where the Indian surrogacy laws will go from here. If the recently passed bill is any indication, it seems like surrogacy in India won’t be possible any time soon for international intended parents.

This is why many surrogacy professionals recommend working in an area that has regulations aimed to protect those involved — rather than working with a surrogate in a location that has banned the process outright. It’s not unreasonable to predict that surrogacy will continue in India, even if it’s illegal, putting more intended parents and surrogates at risk than before. In this way, the surrogacy laws in India likely won’t succeed in their goal, and the controversies surrounding Indian surrogacy may not dissipate as quickly as planned.

If you’re considering surrogacy in India as a foreign intended parent, it’s best to consider other locations to complete your surrogacy goals, so as to avoid legal repercussions. The United States is one of the best options available to complete your surrogacy in a safe, well-regulated way, and many surrogacy professionals advise it be at the top of your list.

• The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare, Dr. Harsh Vardhan in Lok Sabha on July 15, 2019. The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
   
• Regulation of surrogacy: The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.  Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.  Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.
   
• Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.
   
• Eligibility criteria for intending couple: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
   
• A certificate of essentiality will be issued upon fulfilment of the following conditions: (i) a certificate of proven infertility of one or both members of the intending couple from a District Medical Board; (ii) an order of parentage and custody of the surrogate child passed by a Magistrate’s court; and (iii) insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
   
• The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions: (i) the couple being Indian citizens and married for at least five years; (ii) between 23 to 50 years old (wife) and 26 to 55 years old (husband); (iii) they do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness; and (iv) other conditions that may be specified by regulations.
   
• Eligibility criteria for surrogate mother: To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be: (i) a close relative of the intending couple; (ii) a married woman having a child of her own; (iii) 25 to 35 years old; (iv) a surrogate only once in her lifetime; and (v) possess a certificate of medical and psychological fitness for surrogacy.  Further, the surrogate mother cannot provide her own gametes for surrogacy.
   
• Appropriate authority: The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act.  The functions of the appropriate authority include; (i) granting, suspending or cancelling registration of surrogacy clinics; (ii) enforcing standards for surrogacy clinics; (iii) investigating and taking action against breach of the provisions of the Bill; (iv) recommending modifications to the rules and regulations.
   
• Registration of surrogacy clinics: Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority.  Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.
   
• National and State Surrogacy Boards: The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively.  Functions of the NSB include, (i) advising the central government on policy matters relating to surrogacy; (ii) laying down the code of conduct of surrogacy clinics; and (iii) supervising the functioning of SSBs.
   
• Parentage and abortion of surrogate child: A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.  An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority.  This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971.  Further, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.
   
• Offences and penalties: The offences under the Bill include: (i) undertaking or advertising commercial surrogacy; (ii) exploiting the surrogate mother; (iii) abandoning, exploiting or disowning a surrogate child; and (iv) selling or importing human embryo or gametes for surrogacy.  The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.  The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.

The amendments that have been made (through the parliamentary and select committee processes) are pretty good because they allow any willing woman, and not necessarily only a relative, to be a surrogate. And surrogates can be compensated (for the service they provide). The other thing is that there is no need to bring along an ‘infertility’ certificate and to declare everywhere that 'I am infertile and need a surrogate.’ The committee has recommended waiving off that certificate requirement which was, I think, very traumatic to most women who are looking for a surrogate. The 'five years' waiting period clause has also been removed because these days, people marry late and then to have to wait for five years to have a child through a surrogate is not good for the infertile couple.

What clauses still need to be reconsidered?

A couple can opt for one child through surrogacy only if their first child is handicapped or mentally or physically challenged. I do not like this discrimination because (if this becomes law) a woman who doesn't have a uterus but still wants two children cannot do so. You are allowed to adopt three children, so why not the same through surrogacy.

A single woman opts for surrogacy despite the fact that she can conceive, and this is mainly due to the stigma attached. However, under the clause in the draft law, only a widow or a divorcee comes under the 'single' category.

Single women and men, who do not opt for marriage, are barred. In all these areas, if they (the government) had just scrutinized the issues and put in some strict criteria for surrogacy (rather than barring them completely), then such men and women would benefit. Personally, I think, the single woman clause is good, but it needs to be revisited.

Besides, embryo-freezing should not be kept out of the surrogacy law ambit. Storing of embryo should be allowed.

The penalties proposed for doctors, couples, etc., should also be looked into.

You are considered a pioneer in IVF and surrogacy. Did the Select Committee meet you and take your suggestions?

The members of the Select Committee visited us in Anand, Gujarat, and they visited a couple of other places in Hyderabad and Mumbai. They made field visits and heard first-hand some practical ideas. They met couples and surrogates and then came up with these amendments. We had pointed out to them several impractical provisions in the draft law which, thankfully, have been taken care of in the amendments suggested. I hope that these amendments become the law.

Do you think the concerns about the exploitation of surrogates in the surrogacy industry have been addressed?

I fail to understand this notion that surrogacy is an industry. Yes, there is give and take of money and there are some procedures or arrangements. But a woman is willingly doing (a service) and she has to be compensated accordingly with the best food, best care and insurance. This is a health service because science has advanced and has opened up this possibility of ‘compensatory surrogacy.’ It is like organ donation.

We can say that if you keep all arrangements transparent, follow procedure at every stage and notify the authorities, it will be good for everyone involved, including doctors and surrogates. This will not only prevent exploitation but also people indulging in illegal activity.

Important Provisions of Bill

Section 3 of the Act provides for:
1) Compulsory Registration of Surrogacy Clinic,
2) No surrogacy at other place than registered clinic, no Specialist or medical practitioner shall perform commercial surrogacy
3) No Specialist or medical practitioner to perform without qualification
4) No promotion or aid or advertisement
* of commercial surrogacy in any way by clinic or any person
* That encourage a women to be a surrogate mother
* Seeks a women to Act as a surrogate
* Implies the willingness of a women to become a surrogate
5) No abortion without consent of mother and Appropriate Authority (such authorisation should comply with the provisions of the Medical Termination of Pregnancy Act, 1971)
6) NO storage of Human Embryo or Gamete is allowed for surrogacy purpose.

Regulation of Surrogacy and Surrogacy Procedures

Section 4- Under following purposes surrogacy is permitted- Infertile, Altruistic (Unselfish) purpose, No commercial surrogacy, No prostitution or sale of born surrogate child, for any other purpose or disease for which regulation made by Board allows.

Sec 4(3) Director or In-charge of clinic and specialist of clinic are satisfied that following Conditions are fulfilled-
Certificate is issued by competent Authority after confirming the below conditions-
1) Certificate of infertility to the couple intending surrogacy by District Medical Board,
2) Order of Court passed by a Magistrate of the first class or above, regarding custody and parentage of child,
3) Insurance of Surrogate mother and child.

Eligibility certificate of surrogate mother by Appropriate Authority

1) Ever married woman having own child (25-35 age).
2) Close relative (Not defined in this Act)
3) One surrogate birth in her life time (no limit for attempts)
4) Medical and psychological Fitness certificate of intending surrogate mother.

Eligibility of Intending couple Appropriate Authority

1) Age women 23 to 50 man 26 to 55,
2) 5 years of marriage,
3) Indian citizen,
4) No child before by any way (exception- child having life threatening disease or disorder with no cure with certificate of district medical Board)

Section 6: Written consent of surrogate mother is necessary and she shall be told all the side effects of the birth.
Section 7: No child shall be abandoned (Defined under Section 2(a) of the Act) by the intending parents after birth for any reason or defect or gender. (Child born by surrogacy shall be deemed to be a natural child)
Section 9: No person shall in any way force the surrogate mother to abort the child.

Protection of surrogate mother

Section 35
Prohibition of commercial surrogacy and exploitation of surrogate mother, child born.
1. No person or group shall undertake commercial surrogacy or provide any relating service.
2. No advertisement or publication for commercial surrogacy
3. No person shall disown abandon exploit in any form the child
4. No person shall exploit the surrogate mother
5. No person shall sell human embryo or gamete for surrogacy
6. No person shall import or help in import of human embryo or gamete for surrogacy
These Acts are punishable with Imprisonment of not less than 10 years and fine may extend up to 10 lakh.

Section 36 - Punishment for contravention of any provisions of the Act
Imprisonment of not less than 5 years and fine may extend up to 10 lakh.

Section 37

Punishment for initiation of commercial surrogacy

Any person who seeks commercial surrogacy shall be punishable with imprisonment for a term which shall not be less than five years and with fine which may extend to five lakh rupees for the first offence and for any subsequent offence with imprisonment which may extend to ten years and with fine which may extend to ten lakh rupees.

Section 38
Penalty for Contravention of provisions of Act or rules for which no specific punishment is provided shall be punishable with 3 years + 5 lakhs continuing contravention 10,000 for every day.

Section 39

Presumption in case of surrogacy

Notwithstanding anything contained in the Indian Evidence Act, 1872, the Court shall presume, unless the contrary is proved, that the woman or surrogate mother was compelled by her husband, the intending couple or any other relative, as the case may be, to render surrogacy services, procedures or to donate gametes for the purpose other than those specified in clause (ii) of Section 4 and such person shall be liable for abetment of such offence under Section 37 and shall be punishable for the offence specified under that Section.”

The Bill is yet to be introduced in Rajya Sabha and after the accent of president the bill will become an Act.