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Author: Vyshnavi Aitha,
Dr. B.R. Ambedkar Law College
The Surrogacy regulation bill was first introduced by the Ministry of Health and Family Welfare in the parliament. This bill was introduced because infertility is increasing in India. The main goal of this bill is to remove infertility and every couple should have children. The Surrogacy bill is a fight between legal and ethical things. The main aim of this bill passed by the central government is to not misuse this opportunity of having children. This bill also contains rights that surrogate mothers have and rights of the child born and financial burden and implications.
Introduction:
Surrogacy word was first derived from the Latin word ‘subrogate’, which means to substitute it. Infertility plays a major role in every couple where they feel that they should have or enjoy parenthood and give birth to children. Infertility is caused because of many reasons it varies from person to person. It may be because of lifestyle, health condition, age, food intake etc. Infertility can be seen in both men and women. Because of lack of fertility in society surrogacy played a major role in most of the peoples lives.
Surrogacy is an alternative to giving birth to a child. Surrogacy is a practice of using a woman's womb to carry a fetus until birth to be raised by another. Surrogacy can be differentiated by using two terms, they are altruistic and commercial. Altruistic surrogacy means that the surrogate is not compensated with anything. Commercial surrogacy means that the surrogate will be compensated financially, because she bared their child and she gets profit for that. This commercial surrogacy was legal in India from 2002 to 2015, where in that time many surrogacies happened in between, approximately 25000 surrogate children were born where they gained profit and this had become a business to some kind of men where they used this surrogacy in a wrong way.
In this time surrogacy was popularized in the whole world,with this in many countries difficult legal problems emerged, where then in most of the countries started keeping many set of rules and regulations and then they have started bringing new laws in the field of surrogacy.In India also problems have emerged and this forced Indian government to propose Surrogacy Regulation Bill in 2015, this bill proposed guidelines to those who involve in this process. In process of surrogacy exploitation against surrogate mother and the child where it went into the eyes of government and issue got raised in Lok Sabha to not allow commercial surrogacy. This is the reason behind the emergence of a new law that is Surrogacy Regulation Bill 2016, which had various amendments and this was passed in the year 2018 in Lok Sabha. After this, this was passed to Rajya Sabha where they have created a special committee on it in 2019 and it was passed by Rajya Sabha on December 25 2021, then the Surrogacy Regulation Bill 2021 was brought into picture where till now everyone follows this bill. This surrogacy bill prohibits taking advantage of commercial surrogacies where this will not be encouraged by this bill. Now surrogacy means it’s a charitable act by anyone else.
Surrogacy Regulation Act 2021:
Under this Surrogacy Regulation Bill, a woman who is a widow or a divorce between the age of 35 to 45 years or a couple, are married legally can opt for surrogacy. And they can only opt it when they are medically fit for this process. This bill bans commercial surrogacy and no one is allowed to do this and it is considered as a punishable offense and will be in jail for 10 years and fined up to 10 lakhs. This is the punishment given under this act for this commercial surrogacy offense. This law only allows altruistic surrogacy because that means no exchange of money happens in between for the child. This kind of surrogacy is allowed when the surrogate mother is healthy and fit and seeks to give birth to a child through her. This helps to stop the middlemen who are involved in commercial surrogacy and it stops them from making surrogacy as a business. And it also stops exploitation and safeguard the women under this act. This act also prohibits going into the process of surrogacy; foreign nationals, the couple who have already had one child, and people who stay in live-in relationships, lesbians, single men and women, gay, and widowers are not eligible to opt for the process of surrogacy.
This Act does not show any kind of gender differentiation but it stops the difficult parentage and stops the future difficulties which arise from this kind of complex parentage. For a woman they have their own reproductive choice and it's their fundamental right and they have their choice and liberty under Article 21. The people who stay in a live-in relationship are allowed to have a child by the process of surrogacy. But in many cases supreme court stated that a man and women can stay together without getting married. In cases like Kushboo vs kanniammal, Lata singh vs State of UP. This is accepted under Article 21. This current Act fails to balance the two interests of a surrogate mother and newborn child rights, that is one should say that the exploitation of poor women in the name of surrogacy is illicit and which is not acceptable. This Act reinforces traditional patriarchal norms that is women does not get any kind economic value to their work which affect the women to reproduce under the Article 21. Altruistic surrogacy makes the couple choose a surrogate mother within their limited bounded relatives who are ready to bear the process and give birth to the child with no kind of bad intention and their will the lesser chances of complications. In this kind of surrogacy their will be no third party involvement is seen where it does not create more problem in this process. In this kind of process the couple will bear the expenses to the surrogate mother which arise in this kind of process.
This Surrogacy Regulation Act states that the couple who do not conceive and be infertile can have child through this process which helps in their betterment of life. The Surrogacy clinics should have been registered and should have sophisticated equipment and good infrastructure and with well and good diagnostics facilities by following proper rules and regulations and which do not create any kind disturbance to the patients. This Act also prohibits to sell embryo for the purpose of surrogacy, if done it will be considered as a punishable offense. ART (Assisted Reproductive Technology) Bill states that the surrogacy clinics should have labs conducting ART services. The couple who wish to go through this process and the surrogate mother should have or obtain the eligible certificates and appeal to the state government and should wait until the permission has come, if not the rejection will be done within the span of 30 days. This process should be followed where it is stated in this Act.
Conclusion:
The Surrogacy Regulation Act is so useful for the present Indian society, because now everyone who is infertile is adapting this process. With this many people used this process in a wrong way this caused so many difficulties in the society. This Act protects the rights of a surrogate mother and the new born child and stop exploitation under this act. This Act protects the rights of women and stops sale of embryos and many illegal and illicit activities happening in society. This act protects women from commercial surrogacy which may lead the surrogate mother in a difficult situation. This Act prevents the reproduction does not turn into the business and the reproduction activity should be a process to gain profit. This act also provides the certain things to follow in the process of surrogacy and helps everyone to not misuse this process. And it also mentioned about the surrogacy clinics and the rules that they should follow and this act prohibited certain groups of people which may lead to the child's complex parentage and does not keep the child's life in difficult situations. By this act they have prohibited the commercial surrogacy activity where it is not acceptable, by this the child’s future is also secured and also stop the child getting into the forced labor work and not reproduce children for their own purposes in a bad way.This new law also made according to the new social patterns arise and this made the acceptance of surrogacy in the society in a wide range . This also protects the fundamental rights of the individuals.
References:
1.Ministry of law and justice, government of India : The Surrogacy Regulation Act.
2.Medical Termination of pregnancy amendment.
3. Risks of being a surrogate mother. [Google Search]
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