The world’s second and India’s first IVF (in vitro fertilization) baby, Kanupriya alias Durga was born in Kolkata on October 3, 1978 about two months after the world’s first IVF boy, Louise Joy Brown born in Great Britain on July 25, 1978. From that point forward the field of assisted reproductive technology (ART) has grown apace. The development in the ART strategies is acknowledgment of the way that barrenness as a medicinal condition is a colossal obstacle in the general prosperity of couples and can’t be neglected particularly in a patriarchal society like India. A lady is regarded as a spouse just in the event that she is mother of a tyke, with the goal that her significant other’s manliness and sexual strength is demonstrated and the ancestry proceeds. The issue however emerges when the guardians can’t develop the kid through the traditional organic means. Barrenness is viewed as a noteworthy issue as connection and family ties are reliant on descendants. Thus surrogacy comes as an incomparable friend in need.
The word ‘surrogate’ has its origin from a Latin word ‘surrogatus’, meaning a substitute, that is, a person appointed to act in the place of another. Black’s Law Dictionary, defines surrogacy as the process of carrying and delivering a child for another person. The Britannica defines ‘surrogate motherhood’ as the practice in which a woman bears a child for a couple unable to produce children in the usual way.
According to another classification, surrogacy can be traditional, gestational and donor surrogacy. Traditional surrogacy involves the artificial insemination of the surrogate mother by using the sperm of the intended father. Gestational surrogacy, on the other hand, involves the creation of an embryo in a Petri dish and its implantation into the womb of the surrogate who carries it to the term. Lastly, in donor surrogacy there is no genetic relationship between the child and the intended parents as the surrogate is inseminated with the sperm, not of the intended father, but of an outside donor.
Article 16(1) of the Universal Declaration of Human Rights 1948 says, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and start a family”. The Judiciary in India has recognized the reproductive right of humans as a basic right. Vide B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as an aspect of his “right to privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma, which characterised the right to reproduce as “one of the basic civil rights of man”.
In Kolkata, prosecution for legitimate authority of the principal tyke conceived through surrogacy assertion has as of now started. Commercial surrogacy is developing and specialists and surrogate moms are drawing in into profiteering as clear from various daily papers records of surrogate ladies refering to cash as the fundamental purpose behind taking part in such courses of action. Ladies are being constrained by their in-laws to take part in this rising “business” and the not all that inaccessible dreams of an elevated requirement of living, extravagances and a protected future for their kids are driving ladies to profit through surrogacy.
To legalize surrogacy, The Law Commission of India has submitted the 228th Report on “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As Rights and Obligations of Parties to a Surrogacy.”
The following observations had been made by the Law Commission20:
- Surrogacy game plan will keep on being represented by contract among gatherings, which will contain every one of the terms requiring assent of surrogate mother to shoulder kid, understanding of her better half and other relatives for the same, restorative strategies of manual sperm injection, repayment of all sensible costs for conveying youngster to full term, eagerness to hand over the tyke destined to the charging parent(s), and so on.
- A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
- Life Insurance of surrogate mother should necessarily be covered under the contract.
- Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
- The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
- Right to privacy of donor as well as surrogate mother should be protected.
- Sex-selective surrogacy should be prohibited.
- Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only
This is an extraordinary stride forward to the current circumstance. Presently the question emerges that what type of surrogacy ought to be embraced? The most proper decision is non-business surrogacy as its family business surrogacy which changes over surrogacy into a business action apparently falls foul of Article 23 of the Constitution of India and Section 23 of “activity” hints a component of exchange i.e. purchasing and offering and business surrogacy being proportional to infant offering absolutely includes activity in kids. Interestingly, non-business surrogacy understandings, giving just to “remuneration” comparable to sensible costs brought about by the surrogate mother, pass the touchstone of open arrangement contemplations under area 23 the Indian Contract Act, 1872. Article 23 denies trafficking in individuals while Section 23 makes understandings in spite of open approach unenforceable grasping inside its overlay such contracts which are probably going to debase, degenerate or harm the general population profound quality.
Surrogacy involves conflict of various interests and has inscrutable impact on the primary unit of society viz. family. Non-mediation of law in this knotty issue won’t be legitimate when law is to go about as impassioned protector of human freedom and an instrument of dispersion of positive qualifications. In the meantime, disallowance on dubious good grounds without an appropriate evaluation of social finishes and purposes which surrogacy can serve would be unreasonable. Dynamic authoritative mediation is required to encourage adjust employments of the new innovation i.e. Workmanship and give up the cased way to deal with authorization of surrogacy embraced until now.