Written by: Shikha Singh (Intern)
Edited by: Anubhav Yadav (Content Head & Developer)
From the literature available on surrogacy, it can be explicated that the procedure involves having parent ship by engaging a foreign womb to have a child. Couples usually opt for this very process due to lack of fertility coupled with numerous other medical complications which makes them unfit to bear a child. The medical procedure of surrogacy involves a well curated IVF (In Vitro Fertilization) procedure to plant the baby in surrogate mothers. There are three kinds defined for surrogacy. Firstly, the traditional surrogacy where the egg of a surrogate mother is fertilized with the sperm of the desired father. Second, the gestational surrogacy where the embryo is formed with the help of desired parents then it’s planted inside the surrogate to carry the baby. Third is donor surrogacy where the baby has no genetic connection with the parents. Off late India has become the hub of global fertility and is even addressed as the ‘international surrogacy industry’.
However this procedure comes with its own anomalies and has been castigated on several fronts, be it exploiting the surrogate, gross negligence of her health or hampering human rights and so on. In India surrogacy as a critical medical procedure lacks circumscribed legislation as a result the practice takes place outside the ambit of law. Albeit the ICMR- Indian Council for Medical Research under its code of practice, ethical consideration and legal issues in the year 2005 laid down the foundational guidelines for ART (Assisted Reproductive Technology) clinics which perform the procedure of surrogacy. The guidelines also touch upon some crucial aspects like the essential counseling provided to the acting parties, the available process to lodge complaints and so on.
The vexed question on surrogacy takes into account several ethical complexities as well and the procedure having no substantial legal backing simply exacerbates the given problem. The issue of surrogacy was surrounded with many social failures and vulnerabilities. Dating back in the year 2008 a Japanese couple decided to have a child through surrogacy in the town of Gujarat. Unfortunately the couple separated before when the surrogate mother gave birth to the baby. This left the baby in a huge crisis of entitlement. The trouble became perpetual because the baby who lived with her grandmother in Japan, never really received citizenship considering surrogacy as an act has no legal recognition in Japan. Another case was witnessed where an Australian couple denied accepting the baby from surrogate out of gender biasness.
Amidst all this comes a great sigh of relief from the initiative of our Parliament by addressing the Surrogacy (Regulation) Bill, 2019. This very step might just lead to a greater good for all and won’t hamper the health and social order at the same time. The bill however is yet to be sanctioned as a law to apply across the country.
Cases and Judgments
In a very recent case relating to surrogacy in Saket Court of New Delhi, the plaintiff couple came to seek legal protection of being biological and legal parents of the child who was commissioned via surrogacy. The parties came into contact under the Gestational Surrogacy Agreement. Given the fact that there is no bar on entering into such an agreement the Court granted the couple with a decree under the provision of Order 12 Rule 6 of CPC. The court even asked the defendant (surrogate mother) to adhere with the clauses of agreement signed. Delhi High court even addressed the matter and mentioned- that there is no law as present in the country that bars Gestational Agreements.