Nature offers us a beautiful capacity to procreate a life within a woman. And it is observed that each woman cherishes the experience of motherhood. Unfortunately, there are a few women who due to some physiological conditions cannot give birth to their own child. The acute yearning to become parents and to experience the joys of motherhood drives them to search for alternative options, and for some surrogacy presents itself as one of the most suitable options.

The word ‘surrogate’ has its origin in Latin term ‘surrogatus’ meaning a substitute, that is a person appointed to act in place of another. Thus, we see that surrogate mother is the one who carries the child for another woman. She does that either from her own eggs or from the implantation in her womb of a fertilized egg from another woman. According to Black’s Law dictionary, surrogacy means the process of carrying and delivering the child for another.

According to Artificial Reproductive Technique (ART) guidelines, surrogacy is an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention of carrying it to term and handing over the child to the person or persons for whom she is acting as surrogate.

With respect to surrogacy there are mainly two types; they include:

• Traditional surrogacy – A pregnancy in which a woman provides her own egg and uses another man’s sperm, which is fertilized by artificial insemination, and carries the fetus and gives birth to a child for another person.
• Gestational surrogacy – A pregnancy in which one woman (the genetic mother) provides the egg, which is fertilized, and another woman (the surrogate mother) carries the fetus and gives birth to the child.

There are also other types of surrogacy which are known as altruistic or commercial surrogacy. This is another way of identifying different types of surrogacy i.e. on the basis of the motive behind entering into the surrogacy arrangement and the nature of the payment made to the surrogate. Commercial surrogacy is a form of surrogacy in which the surrogate enters the arrangement primarily for financial reasons. In such instances, the surrogate is paid to carry a pregnancy to term. Altruistic Surrogacy is where the surrogate receives no financial reward for her pregnancy and the relinquishment of the child. However, in such instances usually all expenses related to the pregnancy and birth are borne by the intended parents; these might include medical expenses, maternity clothing, and other related expenses. In altruistic surrogacy, it is mostly a member of the same family, or someone known to the couple who acts as the surrogate. 

SURROGACY (REGULATION) BILL, 2016

The Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha on November 21, 2016 and was passed on December 19, 2018. The Bill has defined Surrogacy as an arrangement whereby an intending couple commissions a surrogate mother to carry their child.

• Salient Features of the Bill

The Bill says that the couple must be Indian citizens and married for at least five years with at least one of them being infertile.  The surrogate mother has to be a close relative who has been married and has had a child of her own. The surrogate child will be deemed to be the biological child of the intending couple.

The Bill prohibits commercial surrogacy, and allows altruistic surrogacy. Altruistic surrogacy does not involve any monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy. 

• Offences & Penalties

The Bill creates certain offences which include: (i) undertaking or advertising commercial surrogacy; (ii) exploiting the surrogate mother; and (iii) selling or importing human embryo or gametes for surrogacy. These offences will attract a penalty of 10 years and a fine of up to 10 lakh rupees.

• Criticism of the bill

Even though the Surrogacy Bill (Regulation), 2016 tries to establish a uniform law relating to surrogacy across the whole country, there are a number of drawbacks to the same. Some of the shortcomings of the Bill are:

• The Bill allows only heterosexual couples to adopt a child through surrogacy, there is no mention of homosexuals in the Bill.
• The Bill does not allow a single parent to adopt a child, only a married couple can adopt via surrogacy.
• The Bill completely bans commercial surrogacy, where it can be allowed and regulated by the government which will prove to be an economic boost for the country.
• Most important drawback is that the Bill clearly mentions that the Surrogate mother should be a “close relative” of the intending couple but the Bill has nowhere defined the term “close relative” which imposes confusion for the intending couple.

In conclusion, the bill does seem to do more harm than good. Although formulated to curb the exploitation of women and trafficking of children; again, it exhibits the general policy of a state banning or censoring an activity almost completely, instead of looking at ways to use laws to regulate and improve the situation.  

 BY ARUSHI SRALECH