![WISDOM CRUX [ISSN 2456-6233]](https://www.wisdomcrux.lawtimesjournal.in/wp-content/uploads/2020/12/WISDOM-CRUX-ISSN-2456-6233.png)
[Volume 2, Issue 5] – May, 2017
Author – Mr. Akhilesh Shahi, Research Scholar, School of Legal Studies, Babu Banarasi Das University, Lucknow
Recently the surrogacy regulation bill 2006 was introduced in Lok Sabha on November 21.2016 the bill regulates altruistic surrogacy and prohibits commercial surrogacy. Thus bill has prohibited commercial surrogacy and allows altruistic surrogacy because commercial surrogacy is considered to be exploitative against woman. In commercial surrogacy the woman and surrogate child both were considered as an object of sale which is highly condemned by all the sections of the society and also against the Indian culture. Previous to the ban of the commercial surrogacy in India there were many laws involved in the process of the commercial surrogacy.
PREVIOUS EXISTING LAWS ON SURROGACY IN INDIA
The legal status of surrogacy in India was unsettled. As there was no law in India which prohibits surrogacy, which implies that surrogacy may be considered legitimate.((Dr. Srinivas M.,Assisted Reproductive Technologies, Legal issues. Andhra law times, 2010(4) P.28)) But there was no specific or independent law on the subject of surrogacy till the passing of surrogacy regulation bill 2016.
Considering the importance of surrogacy issues some guide lines had been brought out by the Indian Council of Medical Research and the National
Academy of Medical Science (NAMS), As National guide lines for Accreditation, Supervision and Regulation of ART Clinic in India in 2005 so in the absence of any law to govern surrogacy, these guide line apply. But being non statutory, they are enforceable in code of law but keeping in view the growing demand for surrogacy in India, India’s ministry of heath and family welfare had drafted bill to regulate case of commercial surrogacy. ICMR presented a national regulation addressing not only commercial surrogacy, but also other Reproductive Technologies.((http://repository;asu.edu/attachements/56963/contents/morthy)) And the regulation was known as Draft Assisted Reproductive Technologies Regulation bill 2008 which was changed in 2010 and named as Draft Assisted Reproductive Technologies Regulation and Rules Bill 2010 with some changes in the Draft Bill of 2008. But all these have its draw backs which does not need the requirements of the present practice in the absence of any independent law these agreement are to be regulated under the contract law of India that is Indian contract Act 1872 as law commission of India recommends that surrogacy agreements are to be regulated under contract law beside the contract law the provision of Hindu Adoption and Maintenance Act 1956 will also applicable, as according to the ICMR’S guide lines a child born through surrogacy must be adopted by the Genetic Parents unless they can establish their parentage through DNA finger printing.
Under the Indian contract Act 1872, in surrogacy agreement, each party involved in the process should state their concern and intention and should agree to terms and regulation of the process. It includes surrogate’s intention to gestate the child, payment schedule and monitory benefit she avails from the intended parents for the service she contributed. Surrogate mother, her husband and intended couple have to sign and agree to the surrogacy agreement for starting the real process of surrogacy and have to abide by that agreement and each contents.((http://www.carrisahealthservice.com/legalaspects.php))
In commercial surrogacy, the surrogate mother is paid to carry a child to the term in her womb. The surrogacy agreement should contain all aspect of theire relationship between the intended parents surrogate mother and child.((Thakur H. Irvi, is surrogate motherhood moral? Criminal journal,2011 P.89))
The contract phase of the surrogacy agreement finalises the monitory reward to the surrogate to be paid by the intended couple for the service rendered by the surrogate.
Though these agreements i.e. of surrogacy agreements are alike other agreements which relates to the agreements or promise made by both parties and the contract law is primarily concerned with agreements that involved one party or each party giving and understanding or promise to the other party and also stated in Indian contract Act 1872 under section 10 that all agreements are contract if made by free consent of the parties competent to contract for a law full consideration with law full object and the contract should not have been declared to be void under the Act.((http://www.scribed.com/doc/1914328/surrogacyagreement))
As we have observed that in commercial surrogacy the issue of morality arises because surrogate mother were consider to be object of sale which is highly against the moral sentiment of the society and the same time against the cultural background of India. Considering this the recent government bannded the commercial surrogacy in all together all forms, only allows altrustic surrogacy (Non Monitory) but the bill 2016 have many lacunas which should be addressed.
SURROGACY LAWS WORLD WIDE
AUSTRALIA
In Australia all jurisdictions except the Northern Territory allow altruistic surrogacy; with commercial surrogacy being a criminal offense. The Northern Territory has no legislation governing surrogacy. In New South Wales, Queensland and the Australian Capital Territory it is offence to enter into international commercial surrogacy arrangements with potential penalties extending to imprisonment for up to one year in Australian Capital Territory, up to two years imprisonment in New South Wales an up to three years imprisonment in Queensland.
CANADA
The Assisted Human Reproduction Act (AHRC) permits only altruistic surrogacy: surrogate mothers may be reimbursed for approved expenses but payment of any other consideration or fee is illegal. Quebec law, however, does not recognize surrogacy arrangements, whether commercial or altruistic,
IRELAND
There is no law in Ireland governing surrogacy. In 2005 a Government appointed Commission published a very comprehensive report on Assisted Human Reproduction, which made many recommendations on the broader area of assisted human reproduction. In relation to surrogacy it recommended that the commissioning couple would under Irish law be regarded as the parents of the child. Despite the publication there has been no legislation published and the area essentially remains unregulated. Due to mounting pressure from Irish citizens going abroad to have children through surrogacy, the Minister for Justice, Equality and Defense published guidelines for them on 21 February 2012.
SOUTH AFRICA
The South Africa Children’s Act of 2005 (which came fully into force in 2010) enabled the “commissioning parents” and the surrogate to have their surrogacy arrangement validated by the High Court even before fertilization. This allows the commissioning parents to be recognized as legal parents from the outset of the process and helps prevent uncertainty- although if the surrogate mother is the genetic mother she has until 60days after the birth of the child to change their mind. The law permits single people and gay couples to be commissioning parents. However, only those domiciled in South Africa benefit from the protection of the Law, no non-validated agreements will be enforced, agreements must be altruistic rather than commercial. If there is only one commissioning parent, she/he must be genetically related to the child. If there are two, they must both be genetically related to the child unless that is physically impossible due to infertility or sex (as in the case of a same sex couple). The commissioning parents must be physically unable to birth a child independently. The surrogate mother must have had at least one pregnancy and delivered and have at least one living child. The surrogate mother has the right to unilaterally terminate the pregnancy, but she must consult with and inform the commissioning parents, and if she is terminating for a non-medical reason, may be obliged to refund any medical reimbursements she had received.
UNITED KINGDOM
Commercial surrogacy arrangements are not legal in the United Kingdom. Such arrangements were prohibited by the Surrogacy Arrangements Act 1985. Whilst it is illegal in the UK to pay more than expenses for a surrogacy, the relationship is recognized under section 300 of the Human Fertilization and Embryology Act 1990. Regardless of contractual or financial consideration for expenses, surrogacy arrangements are not legally enforceable so a surrogate mother maintains the legal right of determination for the child, even if they are genetically unrelated. Unless a parental order or adoption order is made, the surrogate mother remains the legal mother of the child.
UNITED STATES
Surrogacy and its attendant legal issues fall under state jurisdiction and the legal situation for surrogacy varies greatly from the state to state. Some states have written legislation, while others have developed common law regimes for dealing with surrogacy issues. Some states facilitates surrogacy and surrogacy contracts, other simply refuse to enforce them, and some penalize commercial surrogacy. Surrogacy friendly states tend to enforce both commercial and altruistic surrogacy contracts and facilitate straightforward ways for the intended parents to be recognized as the child’s/ children legal parents. Some American states are surrogacy friendly states only offer support for married / heterosexual couples. Generally, only gestational surrogacy is supported and traditional surrogacy finds little to no legal support.
U.S States generally consider to be surrogacy friendly include- California, Illinois, Arkansas, Maryland, and New Hampshire among others.
For legal purpose, key factors are where the contract is completed, where the surrogate mother resides, and where the birth of child took place. Therefore, individuals living in a enemy/Non-Friendly states can still give birth in a friendly state.