SCRUTINY OF SURROGACY – EXPLOITING WOMAN’S BODY

Introduction

The introduction of newborn infant is often a very special, extremely and fascinating occasion for everyone. Shockingly few couples, because of specific bodily functions and physiological conditions, cannot give birth to their own offspring. Infertility influences around 1 out of every 6 couples. Surrogacy is a technique or method of assisted reproduction. The significance of the “surrogate” is “deputy or substitute” and this word originates from Latin word surrogates which signifies “to act in the place of” or “substitution” in English. Thus, this implies surrogate mother is virtually a “substitute mother”. The term surrogacy is utilized when a woman conveys a pregnancy and gives birth to an infant or baby for another woman who is unable to conceive and convey a child for different reasons, for example, the failure of the embryo to implant, pelvic disorder, repeated miscarriages, hypertension, high blood pressure, hysterectomy, heart and liver sicknesses. In such cases, the routine is to go for adoption or the unconventional is Assisted Reproductive Technology (ART) in which pregnancy is caused by artificial or partially artificial means. The most commonly used ART strategies procedures are Intrauterine Insemination (IUI), Tubal Embryo Transfer (TET), In Vitro Fertilization (IVF), Zygote Intrafallopian Transfer (ZIFT), Gamete Intrafallopian Transfer (GIFT) and Gestational Surrogacy.

To many infertile people, their condition affects their most essential feelings about who they are and what their part in the family is? It impacts one’s personality and the extent of fulfillment. For that reason, infertility is regarded a major health problem. Consequently, it makes it clear why individuals who cannot have children the natural way look for other ways in order to become a parent. Before, couples unable to conceive were expected to turn to adoption to achieve their parenthood dreams. These days there are numerous choices for infertile couples, as well as singles and homosexuals who need children. The desire of parenthood leads them to look for options including ART, IVF and IUI. Development in medicinal sciences and innovation, especially in assisted reproductive techniques, with techniques like donor insemination and embryo transfer strategies have revolutionized the regenerative environment and have prompted an expanding prominence of surrogacy. With the presentation of financial agreements in return for the surrogate child, the child becomes a saleable commodity. Therefore, complications emerge and questions must be raised regarding the rights of the surrogate mother, the child and the authorizing parents. Amid the analysis and scrutiny on the topic several ethical pitfalls identified associated with the Indian maternal surrogacy model. The two most glaring was:

  1. The inadequacy of the medical informed consent model to mull over the social risks postured by maternal surrogacy; and
  2. The absence of autonomous backing, for the purposes of contract negotiation and medical decision-making, with respect to the surrogate.

Situation of Surrogacy in India

The Indian situation in surrogacy field is bleak and very hopeless. The Delhi artificial insemination (Human) Act, 1995 is the only statutory act exists and prevailing in India. There is no interior administrative regulatory body like Interim (Voluntary) Licensing Authority (V.L.A) in United Kingdom, moreover Indian Infertility specialist have rather contradicted the decisive strides towards direction of practice in this field.

  • Litigation against doctors and specialists – doctors confront litigations like – Not taking legitimate informed assent, after duly counseling the couple and / or oocytes / semen donor and informed and written assent ought to be taken from both the life partners as well as donor.
  • Legitimacy – The child born by ART is considered honest, legitimate with all the privileges of parentage, support and inheritance, provided he is born during lawful wedlock and with consent of both the spouses.
  • Inheritance of property – Since the child is illegitimate if born out of Artificial Insemination by Donor (AID), it can’t acquire the property of his father.
  • Consummation of marriage – Conception of the spouse by Artificial Insemination by husband or Artificial Insemination by Donor does not amount to consummation of marriage, if there is no successful sexual act due to the impotency of husband.
  • Rights of an unmarried woman to AID – There are no lawful bar on an unmarried lady going for AID. A child born to a single woman through AID would be deemed to be legitimate.
  • Ground for divorce and judicial separation – Mere Artificial Insemination is not a ground for nullity of marriage and separation/ divorce since sterility is not a ground, notwithstanding if Artificial Insemination is because of impotence of husband, it turns into the ground. AID without husbands consent can be a ground for separation/ divorce and legal detachment.
  • Maintenance and custody of child – Under Hindu Adoption and Maintenance Act, 1956 the maintenance of the dependents is the obligation of the parents, whether legitimate or illegitimate, till the child stays minor and girl child is unmarried.
  • Insemination after the death of the husband – This is seen when semen of the husband is cryo – safeguarded by different methods and the women is inseminated after death of the husband.
  • Relation between Artificial Insemination by husband and Artificial Insemination by Donor child with subsequent Natural/ Adopted offspring of same family – If the infant is born of natural course sometimes after the birth of the infant through Artificial Insemination, the status will remain same for Artificial Insemination child but the natural conceived infant born will remain legitimate.
  • Charge of Adultery – AID does not amount to adultery/ infidelity, regardless of the possibility that it was managed without the assent of husband. For the charge of adultery/ infidelity two things must be proved, sexual intercourse occurred with someone else’s better half and no assent or conspiracy from another man was conceded.
  • Incestuous relationship – There is high danger of such relationship between normally conceived kid and youngster resulting from AID of same parent.

New surrogacy Bill – Major Reform

An exhaustive law to regulate surrogacy has been pending long overdue. Throughout the years, India has turned into a worldwide center for the practice of women being contracted to carry others’ babies, usually for a payment. While assessments of the extent of the surrogacy market change uncontrollably, it is one in which the woman carrying an embryo has been in a hazy area, with questionable legitimate and compensatory insurance. The Union Cabinet on August 24, 2016 ventured out direction first step towards regulation by approving the introduction of Surrogacy (Regulation) Bill, 2016, yet it has numerous problematic provisions. The proposed law, in accordance with the practice in a few different nations, says commercial/ business surrogacy will be precluded. In any case, all together that “selfless surrogacy” is accessible for the advantage of barren couples who are probably edgy for a child that is hereditarily theirs, the Surrogacy (Regulation) Bill, 2016 permits Indian couples, who must have been married for five years without a child, to take the help of surrogates, but without any payment. Just close relatives can be ‘surrogate moms’, and once in a lifetime. However, it bars foreigners, gay couples, unmarried couples and individuals from taking the assistance of an altruistic surrogate — leaving it open to questions about separation and disparity.

Conclusion – Way Ahead

In India, surrogacy is simply, purely a contractual comprehension understanding between the parties so care must be taken while drafting assertion so it doesn’t violate or disregard any of the laws like, example points to be taken into consideration why does the intended parents opt for surrogacy, particulars of the surrogate, sort of surrogacy, specifying about paternity in the agreement, the production of registry for biological father of children in an adoption cases, rules put forward on how and when hereditary testing should be possible to decide paternity, pay compensation clause, unexpected mishappening to the surrogate mother, child’s custody, with respect to the ward for the jurisdiction for the debate emerging out of agreement. The proposed law needs appropriate examination and verbal confrontation with regards to legitimate, social, medical and therapeutic angles.

Author Remarks

Being a responsible citizen of our nation and through an esteemed platform of Jurisedge I convey my remarks and draw the kind attention of the government administration that they should truly think about instituting as a law to direct surrogacy in India so as to ensure and guide couples looking for such option. The better option could have been to put surrogacy under the control of the government or an autonomous (self governing) government agency.

BIBLIOGRAPHY / SOURCES

  • STATUE(S) REFERRED

Indian Penal Code, 1860

The Hindu Marriage Act, 1955 (Act 25 of 1955).

Hindu Adoption and Maintenance Act, 1956

The Delhi Artificial Insemination (Human) Act, 1995 (Delhi Act No. 12 of 1996).

  • INTERNET SOURCES REFERRED

Surrogacy, Wikipedia, https://en.wikipedia.org/wiki/Surrogacy (last visited Jan 26, 2017).

Commercial surrogacy in India, Wikipedia, https://en.wikipedia.org/wiki/Commercial_surrogacy_in_India (last visited Jan 26, 2017).

Express News Service, New surrogacy Bill bars married couples with kids, NRIs, gays, live-ins, foreigners The Indian Express (2016), http://indianexpress.com/article/india/india-news-india/surrogacy-bill-sushma-swaraj-married-couples-can-now-opt-homosexuals/ (last visited Jan 26, 2017).

By Ashish Gupta, B.A. LL.B (Hons.) 4th Year, CHANDERPRABHU JAIN COLLEGE OF HIGHER STUDIES & SCHOOL OF LAW, GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY, DELHI

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