The Current Status of Commercial Surrogacy in India

Commercial surrogacy is a modern practice as opposed to traditional surrogacy. Infertility of either of the partners and the desire for a child has led them into looking for alternate ways of child bearing. The development of assisted reproductive technology has made it possible for a child to be born through a surrogate mother to whom it is not genetically related. This is known as gestational surrogacy. The practise of commercial surrogacy was legalised in India in 2002. This practise was supported to promote medical tourism in India which led the country to become ‘the hub of surrogacy’. The reason for this was the low cost of the procedure and absence of strict legislation regulating it.

The unregulated business of surrogacy raised concerns like unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy to name a few. The middlemen and commercial agencies were profiting through running rackets like organ trade, embryo import, etc.

The relevance of this case lies in it being not only the first decision relating to surrogacy made by the Supreme Court of India but also in bringing to light the absence of regulation of the existing surrogacy industry in India. In the year 2008, a surrogacy case came forward named as ‘The Baby Manji case’ in which a baby named Manji was born through surrogacy to a Japanese couple. The couple got separated before the birth of the child. The father was barred from taking custody of the child as Indian Law bars single men from taking custody of a girl child and the Japanese Law did not recognize surrogacy.

Subsequently, a Habeas Corpus Writ Petition was filed before the High Court of Rajasthan challenging the legality of surrogacy and criticising it as feeding an illegal industry in India and stressed the need for the enactment of a law pertaining to the issue.

The baby got a visa but the case underscored the need for a framework to regulate surrogacy in India. Therefore the above case can be said to be the genesis of the Assisted Reproductive Techniques (Regulation) Bill, 2014.

The Surrogacy (Regulation) Bill of 2019 was adopted to incorporate changes aimed at banning commercial surrogacy in India and allowing altruistic surrogacy for Indian couples. The fundamental difference between altruistic surrogacy and commercial surrogacy is that 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. There were some prerequisites were laid down by the bill:

• To be eligible for altruistic surrogacy, the couple needs to have been married for at least 5 years and needs to obtain certificates verifying either partners’ infertility from new regulatory bodies.
• The bill stipulates that LGBTQ+ families, single parents, unmarried couples, foreign citizens and people outside the age groups of 23-50 for females and 26-55 for men are not permitted to seek surrogacy.
• Only ‘close relatives’, which the bill did not define, can be altruistic surrogates of the intended parents.
• A surrogate woman must be between the age of 25 and 35 and can only be surrogate once.

1. The Surrogacy Clinics, ART Clinics, IVF Clinics or any other clinical establishment, offering surrogacy services will not impose human embryo for offering surrogacy services.

2. No visa should be issued by the Indian mission/ Posts to foreign nationals intending to visit India for commissioning surrogacy.

3. No permission should be granted by the Foreigners Regional Registration Officers (FRRO)/FRO to Overseas Citizen of India (OCI) cardholders to commission surrogacy in India.

4. No exit permission should be granted by the FRRO/FROs to the child/children born through surrogacy to foreign nationals including OCI cardholders. However, for children already born through surrogacy on or before the issue of this circular, the question of exit permission will be decoded by the FRRO/FRO on a case to case basis.

5. Visa if granted after the issue of this circular may be cancelled and applicants may be informed of the position immediately.

6. If the clinics, prior to the issue of the circular, have already initiated any surrogacy process, they will be allowed to complete the processes already started to avoid medical complications. Though, all such cases will approach the state Health Authorities for permission. The State Health Authorities will decide such cases on a case by case basis.

The Assisted Reproductive Technology (Regulation) Bill, 2020 (ART) was introduced in the Lok Sabha on September 14, 2020 and it seeks to provide for the regulation of Assisted Reproductive Technology services in the country.

The Bill defines ART to include all techniques that seek to obtain a pregnancy by handling the sperm or the oocyte (immature egg cell) outside the human body and transferring the gamete or the embryo into the reproductive system of a woman.  Examples of ART services include gamete (sperm or oocyte) donation, in-vitro-fertilisation (fertilising an egg in the lab), and gestational surrogacy (the child is not biologically related to surrogate mother). 

A child born through ART will be deemed to be a biological child of the commissioning couple and will be entitled to the rights and privileges available to a natural child of the commissioning couple.  A donor will not have any parental rights over the child.

Offences under the Bill include:

• abandoning, or exploiting children born through ART,
• selling, purchasing, trading, or importing human embryos or gametes,
• using intermediates to obtain donors,
• exploiting commissioning couple, woman, or the gamete donor in any form, and
• transferring the human embryo into a male or an animal. 
  
  

These offences will be punishable with a fine between five and ten lakh rupees for the first contravention. For subsequent contraventions, these offences will be punishable with imprisonment for a term between eight and 12 years, and a fine between 10 and 20 lakh rupees.

The legal issues relating to surrogacy are very complex and need to be addressed by a comprehensive legislation. It can be said that this new guideline would have both positive and negative repercussions. It would be unfortunate for a multi-crore industry. As the circular states that if any surrogacy process has started before the circular is issued, in that case the parties would have to approach the State Health Authorities for permission after completion of the other formalities. Similarly it would create problems for the women who have already rented their womb as after the child is born it won’t be easy for them to get the exit permission. However, at the same time it will prevent the cases of trafficking, abandonment of children after birth through surrogacy by restricting it only to needy infertile parents.