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Surrogacy, to put it in simplistic terms, is a form of arrangement in support with legal help, where a woman agrees to become pregnant and carry the child for another person, who will become the parent of the child.
Before getting into the details of what makes surrogacy legal or ‘is surrogacy legal in India’, one needs to have a basic idea about what surrogacy means along with the surrogacy legal process which is followed in different countries all across the world.
Before looking into why surrogacy should be legal or illegal, a layman needs to have at least the basic concept of surrogacy clear in their mind.
People or individuals who seek this sort of arrangement, usually do so because of various reasons. Some of the major reasons to opt for surrogacy include:
Whereby it is medically impossible for the party to become pregnant.
Where there may be pregnancy risks in the form of danger or some risk to the mother’s health.
If a man alone or perhaps a male couple wishes to become parents.
Another important point to mention here is the fact that monetary compensation might or might not form part of this form of arrangement. The term where a person receives money for surrogacy is known as, ‘commercial surrogacy’.
But, 'Is commercial surrogacy legal?'
That really depends on the jurisdiction and the laws that different countries follow.
Wondering what about India? Don't know whether or not, - 'Is commercial surrogacy legal in India?’
Well, the answer is - YES, as far as India is concerned. However, commercial surrogacy was legalised in 2002. However, only one type gets the allowance as the legal procedure for surrogacy in India.
You see, there are two main types of surrogacy that the world follows:
Traditional Surrogacy or straight surrogacy is a procedure which involves the artificial or natural insemination and then carries the baby till the delivery.
As far as India is concerned, traditional surrogacy in legal perspective in India has not yet found a permissible road. This basically means that there is no allowance for the procedure of traditional surrogacy in India. It is in fact illegal.
So, if you are wondering whether or not - 'Is Traditional Surrogacy legal in India?' - the answer is NO.
On the other hand, Gestational Surrogacy which is also known as host surrogacy was first achieved in the year 1986.
The whole process works when the embryo is created with the help of IVF (in vitro fertilization) technology which is then implanted in the surrogate.
Gestational Surrogacy is the only form of surrogacy which is allowed in India.
Now let us take a look into the different countries where surrogacy is legal along with the legal issues surrounding the same.
Surrogacy is a concept which is considered to be a controversial topic all across the world. This procedure is known to raise various social, moral and legal issues. As far as the legal situation is concerned, the law/legal situation varies from country to country.
There are countries which are known to ban surrogacy as a whole while there are even places whereby altruistic surrogacy is allowed but not commercial surrogacy.
One of the main legal issues of surrogacy in India concerns that there is no such existence of a law that governs or regulates surrogacy related issues.
This is one of the major loopholes as far as the procedure of surrogacy goes. Surrogacy in India is governed by the guidelines set in the ICMR (the Indian Council of Medical Research) or by judgments that are passed by the Supreme Court or the High Courts.
Due to this loophole of no law being present, the surrogate mothers suffer because they cannot claim any rights from the courts or for that matter any other authority.
Examples include the following factors which contribute to the legal issues with surrogacy:
Child Trafficking: The legal status which has been provided in India to the procedure of surrogacy has led to an increase in the child trafficking industry.
A Risk to Baby’s Health: There are various risks involved in the baby’s health including low birth weight, genetic disorders or membrane damage.
Ethical Issues: Surrogacy has led to the commoditization of children. It is known to break the bond between the children and their mothers and is basically known to interfere with nature itself. This finally leads to the exploitation of women, especially in developing countries.
Psychological Issues: Including the legal issues associated with surrogacy there exist psychological impacts as well. The cases of legal and psychological issues associated with surrogacy in India are many in number. There are multiple cases of exploitation whereby a woman is psychologically harassed or threatened in becoming a surrogate.
If you are wondering, how does surrogacy work legally in different countries; well, that depends on various factors including:
the surrogacy legal contract, or
paperwork including surrogacy legal documents, and
the laws for the same in different countries
To find out places in the world as to where all is surrogacy legal, we have composed the list of countries where surrogacy is legal is as follows:
Australia: As far as Australia is concerned all of the jurisdictions allow for altruistic surrogacy other than the Northern Territory. However, commercial surrogacy is illegal and is considered to be a crime.
Belgium: Similar to Australia, altruistic surrogacy has also been legalised in Belgium.
Canada: As far as Canada is concerned, the AHRC (Assisted Human Reproduction Act) has allowed for altruistic surrogacy only. In Canada, the surrogate mother is allowed to reimburse any approved expenses. However, the payment in the nature of the fee or any other consideration is illegal.
India: The legal position of surrogacy in India is quite clear. Surrogacy is legal in India in the form of Gestational Surrogacy. India is one of those few countries where commercial surrogacy is still allowed. But commercial surrogacy is legal in India without legal backing. This basically means that even though commercial surrogacy is allowed in India, there is no specific law which deals with the same. As already stated above, the procedure of surrogacy is based on the guidelines formulated by the ICMR.
Now that we have an idea of the countries whereby surrogacy is legal, let us now take a look into the legal aspects of surrogacy in India including the legal procedure for surrogacy in India.
The surrogacy in India legal issues is a bit complex.
The reason for the same being is that the procedure of surrogacy is mainly governed by the guidelines set by the ICMR. As there is no legislative backing for the same.
The guidelines provided some form of protection for the commissioning parents and the surrogate mother. However, it prohibited sex-selective surrogacy procedures.
Other guidelines include:
Birth certificate to only have the names of the commissioning parents.
The requirement of any one of the commissioning parents to be the donor.
A life insurance cover as far as the surrogate mother is concerned.
Lastly, the right to privacy for both the commissioning parents and the surrogate mother.
Surrogacy in legal perspective or is surrogacy legal or illegal in India is completely based on the type of Surrogacy procedure followed.
Example: if a person wants to follow traditional Surrogacy in India then it is illegal. However, if a person wants to go for Gestational Surrogacy then it is allowed.
In respect of this, it is important to also mention that there was a draft ART (Assisted Reproductive Technology) Bill which had been formulated in the year 2010. It, however, was not ever passed as a law.
In light of the same the Surrogacy Bill, 2016 was also introduced in the Lok Sabha in the month of November. The cabinet did approve the bill but has not yet passed it.
Some of the major propositions of the bill include:
Complete abolishment of commercial surrogacy.
The bill also stated that the only form of surrogacy which will be allowed is altruistic surrogacy whereby the surrogate mother has to be a close relative of the commissioning parents. The couples also need to prove the fact that they were infertile.
All of the surrogacy clinics would have to be registered. Additionally all of the clinics that are registered needed to maintain the records of surrogacy for 25 years.
Another important provision of this particular bill which was also present in the ART bill was that no single parent, live-in couples or homosexuals were allowed to become commissioning parents. Unmarried or childless women were also not allowed to become surrogate mothers. However, this bill was not passed.
Now that we have an idea of the laws surrounding surrogacy legality in India, let us take a look into some of the major benefits of surrogacy which include:
Due to surrogacy couples who are infertile or single people or belonging to the LGBT community can now become parents.
In Gestational surrogacy, either one or both parents can be biologically related to the child.
Due to surrogacy hopeful parents can raise the child from birth itself.
Intended parents face fewer restrictions in Surrogacy in comparison to adoption.
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