WHAT IS SURROGACY?
The term has been derived form a Latin word, ‘Surrogatus’ that means a substitute. In the context of pregnancy, surrogacy means to act as a substitute mother of a child on behalf of another woman. The meaning of the word surrogacy is, “the process of carrying and delivering a child of another person”.[1] The American Law reports, surrogacy is a “contractual undertaking whereby the natural or surrogate mother for a fee agrees to conceive a child, through artificial insemination with the sperm of the natural father, to bear and deliver the child to a natural father, and to terminate all of her parental rights subsequent to the child’s birth.” In India, the Madra High Court[2] had observed that “surrogacy is a well-known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party”.
REGULATION FOR SURROGACY IN INDIA
In 2022, the Surrogacy Regulation Bill was passed and the act came in force in January 2022. Under the act, surrogacy has been defined as the practice wherein a woman bears a child of the intending couple with the objective of giving them the child post-delivery. However, the act does not permit every person to opt for surrogacy as their parental option. Only those with sincere motives or couples who have a documented infertility or sickness are allowed to use it. The restrictions have been made so to avoid the commercial use of surrogates, including their sale, prostitution, or any other type of exploitation. In addition to this, after the delivery of the child, is legally recognized to be the biological child of the couple. The act has safeguarded the interests of the intended parent(s) as well the surrogate mother. The reason as to why such protection was the need of the hour is all those endless cases of exploitation of women for surrogacy.
EXPLOITATION OF SURROGACY LAWS
Apart from having benefits, surrogacy also has a few down sides. Since every coin has two sides, surrogacy also has been used a tool for exploitation of women. The reason being ‘commercial surrogacy’. When a woman is paid for lending or renting her womb for a baby it takes shape of commercial surrogacy. The woman is paid for providing her ‘services.’ In the year 2002, the Government had legalized commercial surrogacy with the intent to promote medical tourism. It was due to this reason that Indian was famous as the Surrogate Capital of the world or the Surrogacy Hub of the world. The cost of surrogacy, the mother and the entire process of surrogacy till the delivery is very cheap in India. Also, the presence of middlemen makes it easier for the intended foreign parents to be guided with the low-cost surrogacy. And the fact that there are no stricter laws to regulate the process, it makes the whole process easily accessible to the intended parents. These are some of the few reasons why India became the best option for the foreigners to opt for surrogate mothers from the country.
In India, the law-making body could not foresee the repercussions of legalization of commercial surrogacy in the country which was only done with the purpose of cash inflow. This resulted in many visits of people form foreign countries looking for surrogate mothers. And slowly it turned into a way of exploitation. It was the surrogate mothers who used to be at the disadvantaged end of the contract. Since these women mostly belonged to the illiterate and marginalized section of the society who did not understand the consequences and the nature of surrogacy and contract that they entered into. It was only the money that catched their eye and made them consent to being a surrogate mother. The parties to the contract- on one side it would be a powerless woman who was slowly driven in poverty and on the other side it was wealthy international couple whose terms and conditions had to be agreed upon by the surrogate. Therefore, the difference in power holding by both sides of the parties was huge and apparent.
The terms of the contract did not also involve any conditions for the sanitation and health prerequisites. Also, there were no laws that had pointed out the same for the benefit of the surrogate mother. All of these lead to trafficking of women, child labor, prostitution, etc. Since surrogate mothers were often used as mere objects, after giving birth to the child, these children were pushed towards the unethical practices as previously mentioned.
It was because of all of these reasons that there was a dire need for a strict regulation of surrogacy practice. Th unethical and illegal practices had to be managed and prevented by the law makers, in order to cease the exploitation of innocent women at the hands of wealthy outsiders.
[1] Blacks’ Law Dictionary, surrogacy, [2] K. Kalaiselvi v. Chennai Port Trust, W.P.No.8188 of 2012
