Concept of surrogacy, legislation, and impact regarding surrogacy
Introduction
Every married couple dreams of giving the best to their child and making the most out of parenthood, but due to some unanticipated circumstances, such a dream cannot be fulfilled. There may be a lot of reasons why such circumstances appear. It can be because of female or male infertility, etc. In Indian culture, having a child is very important and due to some of the above-mentioned health problems the couple
could not bear a child. These couples are left with two options: adopt a child from an orphanage or go for a surrogacy process.
Adoption
Adoption is a legal process that creates a (parent-child) relationship between persons unrelated by blood. An adopted child is entitled to all privileges that of the natural-born child. An adoptive child also has the right to inherit the property. In India, the procedure for adoption is generally guided by two major legislations:
1. The Juvenile Justice (Care and Protection of Children) Act, 2015
2. The Hindu Adoption and Maintenance Act, 1956
Surrogacy
The term ‘Surrogacy’ originates from the Latin expression ‘ Surrogatus ’ an old participle of ‘ Surrogare ’ expressing “ to choose as a substitute ” the substitute here being the surrogate mother bearing the child for an aiming parent or parents. Surrogacy is a process in which a surrogate mother bears a child for other parents and gives off the child after its birth. Surrogacy is an agreement by which a surrogate mother with her permission carries the future child of the aiming parents and additionally after the birth of the child, gives the guardianship of the child to the intending parents as settled in the agreement. This is an approach by which any parent can have their wishes for a child come true.
Types of surrogacy
There are two types of surrogacy
1. Gestational surrogacy
2. Traditional surrogacy
1. Gestational surrogacy
Gestational surrogacy likewise comprehended as IVF surrogacy or host surrogacy is the procedure where a person carries a gestation for someone else — the “intentional parents.” During this procedure, the childbearing surrogate becomes pregnant through in vitro fertilization (IVF), where a fertilized embryo is transferred into the surrogate’s uterus.
2. Traditional Surrogacy
In traditional surrogacy, the surrogate mother uses her own egg and is artificially inseminated using sperm from the intended father or a donor. The surrogate carries and delivers the baby, and then, because she is the child’s biological mother, must relinquish her parental rights so that the child can be raised by the intended parents.
Does the rationale or motive behind ‘carrying’ a child for the intended parent is different?
Yes, the motive and rationale behind carrying a child for the intended parent are different and can be classified into 2 parts: –
• Commercial Surrogacy– A surrogate is paid for carrying the child. numerous couples are entering into overseas commercial surrogacy agreements to create kin.
• Altruistic Surrogacy– A surrogate is bestowed no monetary gain for carrying a child. Only realistic out-of-pocket expenditures are covered by the aimed parents. E.g. medical costs, travel, time off work, etc. Altruistic surrogacy can utilize either a traditional or gestational surrogate.
Pros and cons of Surrogacy
There are multiple pros and cons of surrogacy some of which are as follows:-
Pros
• For people trying for a child for a long time, for LGBT couples, for those whose wife’s pregnancy can lead to a critical medical issues surrogacy gives a way to complete their family.
• In gestational surrogacy it enables one or both parents to have a biological link with the child
• It keeps the parents involved in the whole process like being in appointments with doctors for check-ups, etc
• It’s a rewarding gift
Cons
• Surrogacy is a complicated process be it medically or legally
• Surrogacy is expensive and economically draining.
• It is a physically demanding process as there are multiple processes involved in surrogacy like fertility treatment, appointments, etc.
Indian Law Regarding the surrogacy
THE SURROGACY (REGULATION) BILL, 2016: ISSUES AND PERSPECTIVES
THE SURROGACY (REGULATION) BILL was approved by the union cabinet on 24th August 2016. The bill regulates surrogacy in India. This bill also checks on who is an eligible candidate or not for surrogacy. In this Bill, the government also defined the parent in need or couple in need of the surrogate child. The bill further proposed 11 other main things which are as follows:
1. Surrogacy regulatory bodies.
2. Prohibition and regulation of surrogacy clinics
3. Written informed consent of the surrogate mother
4. The child born through surrogacy will have all the rights of a biological child
5. Prohibition on abortion and abandoning children born through surrogacy.
6. Prohibition of conducting surrogacy
7. Foreigner Nationals can’t get Indian surrogate mothers
8. Surrogacy will be allowed only once
9. Payment to a surrogate mother
10. Regulation of surrogacy and surrogacy procedures
11. Ban on Commercial Surrogacy
Author: Shivam Sharma,
Manav Rachna University