Sunday, 12 March 2017

Tanishka Mandal

Surrogacy: A Belly for me, A Baby for you

Lawji- Surrogacy
Surrogacy is a process of reproduction in which a woman agrees to get pregnant for the purpose of gestating and giving birth to a baby she will not raise but hand over to the contracted party. surrogacy is known as an arrangement in which a woman carries and delivers a child for another couple. surrogacy is appropriate when one have a medical condition that makes it difficult, impossible or dangerous to get pregnant or to give birth. the medical conditions that make it necessary for one to support surrogacy can be absence or malformation of the womb, recurrent pregnancy loss and repeated In Vitro Fertilisation (IVF) implantation failures.

Full surrogacy, known as Host or Gestational surrogacy, includes the implantation of the embryo using either the egg and the sperm of the intended parents, a donated egg fertilised from the sperm of the intended father or an embryo created using sperm and the egg of the donor.

Partial surrogacy
which is known as the straight or the traditional surrogacy, includes the sperm from the intended father and the egg from the surrogate mother. in this process the fertilisation is done by the artificial insemination or the intrauterine insemination.


Surrogacy is a contract where a woman carries pregnancy for another couple. A good number of infertile couples from all over the World approach India as the commercial surrogacy is legal here.
Even if the said arrangement appears to be beneficial for all the parties related, there remain certain delicate issues that need to be addressed through cautiously framed laws in order to protect the rights of both the surrogate mother and the contracted party.

The ever-increasing prevalence of the infertility in the world has lead to the advancement of the assisted reproductive techniques (ART). commercial surrogacy is legal in India, also, the whole process is least expensive here and this has made India the favourite destination of fertility tourism.

The ART Bill made way for the setting up of national and state broads for ART. It also made the registration of ART clinics mandatory. this allowed only a married, healthy woman, of ages between 23 and 35, having her own child above the age of three years, with the consent of her spouse, to become surrogate mother.

In 2008, the Supreme Court of India in Manji case held that commercial surrogacy was permissible in India. Baby Manji was commissioned by the japanese parents through an unknown egg donor and the sperm of the husband, the baby was born to the surrogate mother in Gujarat. The parents, before the baby was born, got divorced. The genetic father wanted the custody of the child but the Indian law barred him from it and the Japanese law didn't recognize surrogacy. Ultimately the visa was granted to the baby, but the case underscored the need for a regulatory framework for surrogacy in India. This was the genesis of the Assisted Reproductive Techniques (Regulation) Bill.

The ART Bill aims to provide a framework for the regulation and supervision of the assisted reproductive technology clinics, for the prevention of the technology, for safe practice of the said technology services. However, the bill does not address many important problems and issues of surrogacy.


Case Law:

In Baby M's Case, the couple entered into an agreement with the surrogate mother where she had to carry the child to term and surrender custody of the child in return for $10,000 plus medical expenses. After the birth, the surrogate mother rescinded the contract and refused to deliver the child due to deep-seated attachment with the child. The New Jersey Supreme Court, at a time when the state had no law relating to surrogacy.  India only has guidelines and not the legislation governing the surrogacy. The agreement of surrogacy governs the contractual relationship between the parties. The surrogate mother could claim the baby as her own or she can also enforce parental visitation or custodial rights, which can create problems. Under section 112 of the Evidence Act, the surrogate's husband can claim the child. So it becomes very essential for the parents in this scenario to prepare a foolproof surrogacy agreement also, they should ensure a strong contract.


Conclusion:

In India, where several children are orphans, people are practicing surrogacy. Childless couples who wish to adopt the orphan children face the barrier of complex procedures. There is no common adoption law for all the citizens across religions or for Indians living abroad. Hence, they are compelled to opt for IVF or surrogacy. The Guardian and Wards Act, 1890 allows only guardianship and not adoption. Under the Hindu Adoption and Maintenance Act, 1956 non-Hindus are not allowed to adopt a Hindu child, and immigration procedures after adoption pose problems. Simple adoption procedures will help reducing the rate of surrogacy. However, commercial surrogacy must be encouraged but the rights of the women and the children should be protected through cautiously framing laws that can cover all the loopholes present.