SURROGACY REGULATION BILL, 2021, This bill becomes an act now which came into force on the 25th of January 2022. There are many aspects to this act. The first time surrogacy was legalized was in 2002 and since then the commercialization of surrogacy came into the picture. Now the question is what is surrogacy
WHAT IS SURROGACY?
Surrogacy is the process when any couple is unable to produce a child. So the medical procedure for producing the child. Manier time surrogacy termed as “RENT A WOAM”.
It is an effective method to treat infertility. This is the method another woman carries the child in her womb for nine months and gives birth to it. It can be called an arrangement between the parent and the surrogate mother.
WAYS OF SURROGACY?
There are two ways of surrogacy:
- Commercialize surrogacy
- Altruistic surrogacy
This type of surrogacy is legalized in India in 2002. That means if any couple wants a child and they are unable to produce because of their infertility issue or any other issue then by showing the money to any woman they contacted for the surrogacy. That leads to exploitation of that woman but still due to the poorness of the county or that women have to do the same for their life.
This is the legalized one in India. In this kind of surrogacy, the motive of this is to help that couple who is not able to produce the child.
TYPES OF SURROGACY:
- Tradition surrogacy
- Gestational surrogacy
Traditionally, the EGG of the surrogate mother gets artificially inseminated with the father’s SPERM. Then she will carry the baby for 9 months in her womb and after the delivery of that child, the couple will become the legal parents of that child. In this way, the biological mother of the child is the surrogate mother because the egg of the woman is fertilized. In some cases, the sperm is also donated.
In a gestational way, the EGG of the mother and SPERM of the father taken from the original couple means legal parents but in the womb is a surrogate mother. In this method of surrogacy in which the egg and the sperm are from the biological couple, we can say that the source of the egg and sperm is the legal parents.
NEED FOR SURROGACY:
In the report of AIIMS, around 10-15 % or more that people in India have fertility issues. And around 1.8 crore couples in India suffer from infertility. And this act seeks to address the unethical practices and regulate the process for the benefit of couples and donors. Exploitation with the surrogate mother is also very high.
The child who will be born from this process, the legality of the child is one other issue and who will be the biological parents of that child. If in between the time of the 9 months if the parents divorced or separated then what will happen? These issues will be faced by the surrogate mothers and the couple. So we need the proper guidelines on that.
TECHNIQUES OF SURROGACY:
- Assisted reproductive technology
- In- verto fertilization
- Intracytoplasmic sperm injection
- Intrauterine insemination
- Gamete and embryo donation
- Egg donation
- Sperm donation
- Embryo donation
ASSISTED REPRODUCTIVE TECHNOLOGY:
This is the technology used by the couple when they have the issue of their fertility and couples are unable to produce a child and become the parents. For the purpose of getting the child, they use this technology which is named assisted reproductive technology, and the growth of clinics of ART also increased and this is the main reason for the regulation of that clinic we should have an act.
- In- verto fertilization:
Before understanding this we should understand the human reproduction process. If should have a clear clarity in our mind that if any fertility issue arose in the couple so it can be formed the either by the male side or by the female side. If the problem occurred on the male side that is the issue of the sperm of the male and if it will come from the female side then it will the issue of the egg of the female.
In this technology, the egg of the female and the sperm of the male take into the lab, and if any sperm is penetrated then that egg is transmitted to the surrogate mother’s womb.
- Intracytoplasmic sperm injection: targeted delivery of the male sperm in the female egg.
GAMETE AND EMBRYO DONATION:
- Egg donation: in this, the donation of the egg from the female side is done.
- Sperm donation: in this, the donation of the sperm from the male side is done.
- Embryo donation: in this, the donation of both things one is egg and the other is sperm is done.
These are a few techniques used for the surrogacy of the child.
ELIGIBILITY OF THE ART THAT IS CLEARED IN THE ACT IS:
Women’s age for the ART should be the legal age which is 18 – below 50 Nd for the male, the legal age which is above 21 – below 55 age.
THINGS DEFINED IN THE SURROGACY ACT 2021:
The act prohibits commercial surrogacy but allows altruistic surrogacy. The mean of that is altruistic (Non-Commercial) surrogacy: the birth mother does not receive any payment but yes reasonable reimbursement of the surrogate mother’s medical expenses is allowed.
WHEN SURROGACY IS ALLOWED:
- When the couple can prove that they are suffering from infertility, where they are unable to produce the child.
- The surrogacy will be done in the good faith, not any commercial purpose involved in the case.
- Not for the selling of the child, like they produced the child for the purpose of the selling or ani illegal means like selling the organ of the child or any other.
ELIGIBLE COUPLE FOR SURROGACY:
- The surrogacy is allowed for only the Indian citizen and the NRI can also have the surrogacy there.
- The couple should marry and the time of the marriage is more than 5 years.
- The age of the wife is between 23 to 50 and the age of the husband is from 26 to 55 years old.
- Couples should not have any existing child (either biological or adoptive) before the surrogacy if they have one child either girl or boy they can go for the surrogacy, but if the child is disabled or not physically fit then they can go for the surrogacy.
ELIGIBILITY TO BECOME A SURROGATE:
- The surrogate mother should be in the near relation to the couple
- The intention of becoming the surrogate mother is not for the commercial purpose it should be in the help of the couple in the good faith.
- The age of the surrogate mother is between 25 to 35 years old.
- A woman can become a surrogate once in her life span.
- And the mother has to produce the certificate of her fitness for the surrogacy.
- The woman who wants to become a surrogate mother should be married with one child.
THE OFFENSE UNDER THE BILL INCLUDE:
- Undertaking or advertising commercial surrogacy.
- The exploitation of surrogate mother
- Abandoning, exploiting, or disowning a surrogate child
- Selling or importing human embryos or gametes for surrogacy.
- The penalty for such offenses is imprisonment of up to 10 years and a fine of up to 10 lakh rupees.
SOME IMPORTANT CASES RELATED TO THE SURROGACY IN INDIA:
Baby manjhi Yamada Vs. Union Of India: in this case, there was a woman who contracted the germen couple for the surrogate child but at the time of delivery of the child the couple was separated so the question arose in this case that the child was delivered to whom? So SC decided that the custody of the child goes to the grandmother of that couple. And then court decided that commercial surrogacy should be banned in India.
So in 2002 which was legalized in India which is banned in 2015 in India “commercial surrogacy”.
Suchita Srivastava Vs. Chandigarh Administration: right to make a reproduction of the child’s choice falls under the personal liberty guaranteed by article 21.
Jus. KS Puttaswami Vs. Union of India: this case is related to the right to privacy, and in this case, to obtain the “certificate of infertility” from the medical board, which is a violation of the right to privacy under article 21 of the Indian constitution which is protected by the fundamental right.
So we can conclude on this point that, in the current scenario the ability to produce a child is drastically reduced which shows that these kinds of bills and the practices came into the picture. This bill includes all the essential things which are required for the surrogacy parents and the women who are going to become surrogacy mothers.
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