IS SURROGACY LEGAL IN INDIA BY RACHITA MATHUR

Abstract:

“The greatest good is what we do for one another.”
Mother Teresa

Surrogacy means it is an arrangement where a woman offers to carry a baby through pregnancy on behalf of couple and then return the baby to the intended couples. Surrogate mother means who is a married woman having her own child. She should be 25 to 35 years old or who has obtain a certificate of eligibility from appropriate authority also she is a relative of intending couple. She must be surrogate once in lifetime. She must possess certificate of fitness for surrogacy she cannot provide her own gametes. Intending couple are those who have obtained both certificate of essentiality and eligibility. Surrogacy Arrangement means a arrangement which is made between concerned parties before a surrogate mother who agrees to carry the child in ques. This article provides evolution of surrogacy, any recent amendment, or is there any Act or case law related to it.

Introduction:

Earlier in the year 2002 commercial surrogacy was legalized with the rapid growth of surrogacy in India. A commercial firm starts claiming that there should be some laws which help foreign tourist to guide and assist who are in search for Indian mother womb for rent for blessing of the child. This diminishes the dignity of women reproductive capabilities. Such arrangements were considered exploitive in nature. After that a law 228th Law Commission Report of India has recommended that there should be ban on commercial surrogacy and altruistic surrogacy should be adopted. In 2005 the Indian Council of Medical Research (ICMR) issued certain guidelines to regulate surrogacy arrangements which 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 further specified that the surrogate mother cannot donate her own egg for the surrogacy and that she must give up all parental rights related to the surrogate child.

Surrogacy Regulation Bill Amendment 2020:

The bill was approved by union cabinet on 26th February 2020. The major features proposed by the legislation under this Bill are as follows:

  • A regulatory body (National Surrogacy Board) should be established at central and state levels by one or more levels of appropriate authority for each union territory. The main emphasis of this was on roles of advisory, supervisory and administrative.
  • Ban on commercial surrogacy and altruistic surrogacy should be followed.
  • Under 2019 surrogacy amendment the word infertility was defined but now after the new amendment 2020 the word infertility is now been removed.
  • 2020 Amendment has widened the scope by including both intending woman and intending couple.
  • Rights of surrogate child were also discussed as when a child born out of such surrogacy procedure he/ she shall be the biological parent of such surrogate child. Although surrogacy will held illegal if done with the intention to exploit such child or surrogate mother. Certain penalties shall also be levied in such case.

According to my view, legislation has made an effective effort to harmonize conflicting interest with a view to inherent process of surrogacy; also for the child betterment legal status and various rights are being provided to surrogate mother and the surrogate child.

The Surrogacy Act 2021:

This Act was passed by parliament on 5th February 2021, while the Act came into force on 9th February 2021. The main object of the Act was:

  • To regulate surrogacy arrangement in Gibraltar,
  • To establish legal parenthood
  • To make provision for Parental Orders and transfer parental responsibility to the applicants.

Surrogacy Arrangement is made between concerned parties before surrogate mother agrees to carry the child in question, the Act supports that commercial surrogacy should be banned , it is on the discretion of parties which that what kind of surrogate arrangement they want to do. If they want to do surrogacy arrangement then must know that according to Gibraltar law such agreement cannot be enforced even if signed by the parties. The Act futher states that legal mother of the child will be the women who carried the child irrespective of the fact whether she is genetically related to it or not. In case of married woman or civil partnership here the women and the spouse will be second parent of the child. Exception of this can be:

  • In case of same sex female couples there is no need of the parties to proceed with joint application for adoption.
  • In case where surrogate mother is unmarried or not in civil partnership here the commencing father will be the biological father of the child.

The Act legalized the parental order passed by the court within proper time frame. In case of disagreement the court will need to determine the issue with child interest. If there is no person related to child whether genetically or not then anyone can became legal guardian of that child under Parental Order Act.

Case Law:

Baby Manji Yamada v. 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 Childs birth separated and the future of the child was left in dark. The biological father, Mr.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. Supreme Court of India in 2008 had to intervene and the child was allowed to leave the country with her grandmother. It was held that surrogacy permissible in India after Manji case which increased the international confidence in going in for surrogacy in India.

Conclusion:

At the end I want to conclude that from the above we can say that surrogacy in India is legal and various amendments and Act were also being introduced.

References:

http://www.legalserviceindia.com/legal/article-782-surrogacy-in-india.html.

https://www.triay.com/news/the-surrogacy-act-2021-49.

https://blog.ipleaders.in/rights-of-a-surrogate-mother/amp/.

 

 

 

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