In recent years, surrogacy has garnered increased attention, accompanied by the emergence of new legislation on the subject. The growing advocacy for LGBTQ rights and marriage equality has further elevated the significance of surrogacy. In this article, we look into the historical roots and the contemporary scenario of Surrogacy. From ancient myths illustrating acceptance to India’s surge as the surrogacy capital, we explore the legal framework, ethical concerns, and the evolving narrative.
Image: Cartoon depicting the concept of surrogacy, Image Courtesy: Wikemedia Commons
Surrogacy involves a reproductive arrangement where a woman, known as the surrogate, agrees to carry and give birth to a child for another individual or couple, referred to as the intended parents. This method of assisted reproduction is often pursued when the intended mother faces medical challenges preventing her from carrying a pregnancy to term, or when a same-sex couple or a single individual desires to have a biological child.
In the Indian context, surrogacy holds paramount importance. Surrogacy in India has historical roots that trace back to Vedic times. Surrogacy finds its roots in Hindu Mythology, as evident in various tales. Take the story of Devki, where the seventh child, Balarama, was mysteriously transferred from Devaki’s womb to that of Rohini. This mystical transfer highlights the early instances of surrogacy. In the Mahabharata, a conversation between King Pandu and Kunti explores the concept of niyog, where a woman, facing widowhood or impotence in her husband, could appoint someone to help her bear a child, often a rishi or her brother-in-law.
Niyog, when consensually performed, produced healthy heirs, demonstrated by Kunti’s union with Indra, Dharma, and Vayu, giving birth to Arjun, Yudhistir, and Bhim, respectively. Madri, Pandu’s second wife, also employed niyog to bear the twins Nakul and Sahadev through the Ash,. Further, In the Mahabharatam Draupadi and her twin brother were born through surrogacy from Yagnakunda. Gandhari had an unusually long pregnancy of nearly two years and eventually gave birth to a mass. Rishi Vyasa found 101 cells that were grown outside the womb, developing into the male Kauravas and one female child, Dushala.
Additionally, The god of war, Kartikeya, often ironically dubbed the god of fertility, was born through surrogacy, with Shiva as the biological father and Ganga as the surrogate mother, not Parvati.
These ancient myths, featuring multiple instances of surrogacy showcase a historical acceptance of the concept and perhaps are a testament to the fact that Surrogacy flourished in ancient India.
In the contemporary period as well, surrogacy holds significant importance for India. At one point in time, India was recognized as the surrogacy capital of the world. This is primarily because of legal loopholes, and low costs in India. Since 1978, surrogacy has been practised in India, which is also known for having a high rate of “reproductive tourism” and being a burgeoning hub of the fertility industry. Anand, a town in Gujrat, known for its white revolution, is also the site of the blooming industry of Surrogacy. The practice of surrogacy certainly isn’t novel to India but the sector was previously irregulated and uncontrolled owing to lack of legislation. However, with the introduction of the surrogacy bill and the latest amendments, the trajectory of surrogacy in India is bound to change.
Surrogacy was first legalized in India in 2002. Hence, commercial surrogacy was allowed to be practiced in India but there was no proper legal framework addressing the same. This opened up a source of Income for many low-income women, the town of Anand, in particular being an example of this. Owing to the commercialization of surrogacy, multiple commercial firms and clinics cropped up, some even claiming expertise in the field and additionally assisting foreigners. In this course, India became the surrogate capital of the world. The primary reason for the success of surrogacy in India was poverty. This further leads to the issue of exploitation of women and their dignity.
In 2005, the Indian Council of Medical Research issued guidelines for surrogacy, allowing monetary compensation decided by the involved parties. These guidelines prohibit the surrogate from contributing her egg and require her to relinquish all parental rights. The guidelines aimed to address ethical concerns and regulate the surrogacy industry in India.
With the augmentation of the surrogacy industry, the downside of the commercialization could also be seen; causing wide spread concern amongst activists. The case of Baby Manji Yamada vs Union of India in 2009, is an example of the same. In this case, Baby Manji Yamada, born to an Indian surrogate mother for a Japanese couple, faced legal uncertainties when the couple separated before the child’s birth. The lack of legal provisions and Japanese government restrictions on taking the child to Japan led to Supreme Court intervention, allowing the child to leave with her grandmother. This case prompted the Indian government to enact surrogacy regulations. In 2008, the Supreme Court’s decision in Manji’s case allowing commercialization of surrogacy boosted confidence in the Industry.
Around the same time, the Assisted Reproductive Technology (Regulation) Bill, 2008 was being formulated. Despite not being presented to Parliament, the Law Commission initiated a study on surrogacy, leading to its 228th Report in August 2009 proposing a new legislation for surrogacy regulation.
Following the Law Commission’s recommendation, an enhanced Assisted Reproductive Technology (Regulation) Bill was drafted, resulting in the 2014 version. Unfortunately, like its predecessor in 2008, this bill did not become law.
In 2015, activist and lawyer Jayshree Wad presented a case to the Supreme Court of India, highlighting the perils of the commercial surrogacy industry. Subsequently, after thoughtful deliberation, the Indian government prohibited surrogacy for foreigners in the same year
Simultaneously, the Surrogacy (Regulation) Bill, 2016 was crafted. Differing from the 2014 version, it was passed by the Lok Sabha in December 2018 but faced delays in the Rajya Sabha. Eventually, the 2016 bill was reintroduced as the Surrogacy (Regulation) Bill, 2019, passing on 5th May August 2019.
Indian Parliament, Courtesy: Wikimedia Commons
The most remarkable feature of the 2019 surrogacy bill was the ban on commercialization of Surrogacy. The bill instead proposed altruistic surrogacy, where the surrogate mother doesn’t receive financial compensation beyond medical expenses, and commercial surrogacy, which involves a financial incentive or benefit for the surrogate mother. The bill aimed to protect the rights of surrogate mothers and ensure Surrogacy was regulated and ethically practiced.
The ban on the commercialization of surrogacy leaves women with even fewer choices. Surrogacy, before the enactment of the bill, was a source of Income for many women, the ban will certainly take a toll on their income. Most of these women come from lower-income classes, leaving them with even fewer choices. Women’s rights advocates support increased regulation of the surrogacy industry but criticize the proposed law for overlooking the concerns of surrogates. They specifically oppose the mandate legalizing only “altruistic” surrogacy, “arguing that it will lead to women being pressured into becoming surrogates against their will.” citing the patriarchal nature of our society.
The main drawback of this provision was the requirement for the couple to demonstrate their “infertility” before considering adopting a surrogate child. According to the bill, infertility is defined as the incapacity to conceive within five years of unprotected intercourse or due to another medical condition preventing pregnancy. However, this definition does not cover all scenarios where a couple may struggle to conceive, such as various medical conditions leading to miscarriages after conception.
The mention of only “married couples” being eligible for surrogacy marks the fact that same-sex couples cannot have kids by surrogacy which violates the personal rights of the LGBTQ community.
Additionally, the bill mentions, that the intending couple’s close relatives must be a surrogate as one of the several requirements however fails to define the term “close relative” leading to ambiguity.
Moreover, regarding the abortion of the child, the bill excludes the say of the surrogate, highlighting a disconnect between the intending couple and the surrogate.
Many actors have opted for Surrogacy to have Children.
The surrogate mother must comply with several requirements to receive the eligibility certificate under the terms of the Bill. One of the requirements is that the intending couple’s close relatives must be the surrogate mother. The Act does not, however, define what constitutes a “close person” in such circumstances.
Since the inception of the Surrogacy Act, the law has undergone two important amendments. The first in 2022, The 2022 Amendment makes things easier by letting the intending couple sign an affidavit in front of an Executive Magistrate or Notary Public, simplifying the surrogacy application process. However, the 2023 amendment, banning the use of donor gametes limits the options for intending couples and single women. While this amendment clarifies previous ambiguity, it may pose difficulties for those with medical issues requiring donor gametes for conception. The changes, combined with existing restrictions, narrow the pool of eligible individuals for surrogacy in India.
Surrogacy, which prior to the bill, was a beacon of hope to parenthood, now with the regulations and added restrictions, has put the concept in a grey space. While the Surrogacy Bill, 2021 marks a commendable initial effort in creating awareness and regulating the practice, significant amendments are necessary to ensure accessibility to surrogacy for all and eliminate associated stigmas. These changes are crucial to make surrogacy an acceptable option for anyone aspiring to embark on the journey of parenthood through this route.
References:
1. Kavita Kane, She The People, August 2017, Surrogacy in Mythology [ONLINE], Available at: https://www.shethepeople.tv/news/surrogacy-in-mythology/
2. Better Health, Surrogacy [ONLINE], Available at: https://www.betterhealth.vic.gov.au/health/healthyliving/surrogacy
- Aminesh Nagvanshi, Times of India, March 2023, Surrogacy in India- A long Journey for the Nation [ONLINE], Available at: https://timesofindia.indiatimes.com/readersblog/maternitybenefitactboonandbaneforthenation/surrogacy-in-india-a-long-journey-for-the-nation-51172/
- Chinmoy Pradip Sharma, Bar and Bench, November 2019, Surrogacy Laws in India- Past experiences and Emerging Facets [ONLINE], Available at: https://www.barandbench.com/columns/surrogacy-laws-in-india-past-experiences-and-emerging-facets
- Nandini Khaitan, Saranya Mishra, Kartik Gupta, Khaitan and Co., March 2023, Recent Developments of Surrogacy in India [ONLINE], Available at: https://www.khaitanco.com/thought-leaderships/Recent-development-in-the-surrogacy-rules-in-India
- Neha Thirangi Bagri/Anand, Time, June 2021, Commercial Surrogacy Ban in India [ONLINE], Available at: https://time.com/6075971/commercial-surrogacy-ban-india/
Jwala D Thapa, Manupatra, THE ‘BABIES M’: THE RELEVANCE OF BABY MANJI YAMADA V. UNION OF INDIA (UOI) AND IN THE MATTER OF BABY “M” [ONLINE], Available at: https://docs.manupatra.in/newsline/articles/Upload/B2DC0190-6995-4560-A6E0-6B65B4895120.pdf
