Emerging Trends Of Reproductive Technologies - A Study Under Indian Regulatory Framework
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Category: Administrative & Regulatory Law
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EMERGING TRENDS OF REPRODUCTIVE
TECHNOLOGIES: A STUDY UNDER INDIAN REGULATORY FRAMEWORK Prayani Saha, LLM (Human Rights and Duties Education), Cooch Behar Panchanan Barma University
ABSTRACT
Reproductive technologies have rapidly evolved, offering new opportunities for individuals and couples facing fertility challenges. In India, the growth of Assisted Reproductive Technologies (ART), including In Vitro Fertilization (IVF) and surrogacy has brought about significant societal and legal implications. This article explores the emerging trends in reproductive technologies within the context of India’s evolving regulatory framework. It examines the legal, ethical, and social dimensions of these technologies, with a focus on the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021. The study delves into the balance between technological advancements and the need for effective legal safeguards to protect the rights of all stakeholders, including parents, children, and surrogate mothers.
The article concludes by highlighting the need for a more comprehensive and adaptive regulatory system that aligns with international standards, ensuring equitable access while safeguarding human rights and ethical principles. Keywords: Assisted Reproductive Technology, Surrogacy, Infertility, Regulation, Conceive.
INTRODUCTION
Surrogate motherhood, in vitro fertilization, artificial insemination and embryo transfer are a few of the technologies that have expanded the options accessible to a person who seeking to establish a family. The notion that Indian legislature and courts would probably allow access to the innovative artificial reproductive technology through artificial womb facilities is supported by the fact that they have previously approved the practice of bearing children through surrogacy. Infertility therapy using a variety of methods has become more and more commonplace in recent years. Despite the quick adoption of innovative techniques, basic questions about the impact of artificial reproductive technologies (ARTs) on reproductive rights and the allocation of scarce medical resources remain.
1 It is crucial to realise that both the nation and society at large have a significant influence on the use of ART methods. The area of ART methods has undergone rapid technological advancement in recent decades. Surrogacy and assisted reproductive technology (ART) facilities have proliferated throughout India, helping infertile couples become parents.
1 INFERTILITY AND REPRODUCTIVE RIGHTS
Infertility is a common medical issue all over the world, frequently seen as a form of punishment from deities, leading to significant emotional challenges for individuals and couples who are unable to conceive. Infertility can result in adultery, separation, domestic violence, sorcery, hopelessness, self-harm, and various societal prejudices such as isolation. As a result, individuals who are unable to conceive have a strong longing to establish a family. Since the beginning of history, humanity has been looking for answers to the problem of reproduction, but it was not until the nineteenth century that medical experts began addressing infertility as a medical condition2. Every society with a variety of cultural practices has a built-in structure for managing pregnancy and giving birth, despite the fact that these are basic bodily functions.
Personal laws typically encourage childbearing within marriage while also prohibiting and punishing extramarital pregnancy and non-marital sexual activity. It is believed that within a legal marriage, biological and social parents are considered as one entity, with the father being seen 1 Seema Nagar," Artificial Reproductive Technology (ART) and Rights of Women in India", 6 International Journal of Law Management & Humanities 2245 (2023) 2Charu Zelawat, "Social and Legal Development of Assisted Reproductive Technology in India" 11 International Journal of Humanities and Social Science Invention (2022) as a societal construct created by outdated family laws. 3 A child who is born outside of a legal marriage is labelled as "illegitimate," which results in societal stigma and various forms of sanctioned discrimination. Yet, marriage is still shielded by a veil of legality.
The current sociolegal framework promotes the legitimacy of fatherhood, typically enforced through parentage determination. Nevertheless, in actuality, intrusion in reproduction is hidden by sexuality and reproductive privacy, and societal paternity takes precedence over biological parenthood within the socio-legal realm. 4 Most people want to have children at some point in their lives, whether it be because of biological, emotional, or societal reasons. Adoption was the main method for alleviating the challenges of infertility before assisted reproductive technologies (ARTs) were invented. Another approach to avoid male infertility in marriage was engaging in adultery, a sexual behaviour that was considered acceptable within both social and legal norms. 5
2 CONCEPT OF ASSISTED REPRODUCTIVE TECHNOLOGIES(ARTs)
The procedures used to address infertility are referred to as assisted reproductive technologies, or ARTs. In the past, numerous types of infertility were believed to be untreatable. ART offers infertile individuals a variety of options to have biologically related children, providing a way to help them conceive. Advances in medical research, particularly in the field of assisted reproductive technologies (ART), have created several alternatives for childless couples to become parents instead of adopting. In assisted reproductive technology (ART), a medical procedure is done to insert semen into the vagina or uterus with the goal of facilitating conception. In vitro fertilization and intracervical insemination are alternate terms for ART. 6 The term "assisted reproductive technology" (ART) describes the application of medical treatments and methods to facilitate conception in humans.
These methods include surrogacy, zygote intrafallopian transfer (ZIFT), gamete intrafallopian transfer (GIFT) intracytoplasmic sperm injection (ICSI), and in vitro fertilisation (IVF). In vitro fertilisation (IVF) is the process of fusing sperm and eggs from outside the body in a laboratory plate, followed by the embryo(s) being transferred into the uterus. Only one sperm is inserted straight into the egg during ICSI,
3 Ibid
4 Ibid
5 Ibid
6 Bhagavatula Naga Sai Sriram, “Assisted Reproductive Technology and Current Perspective of Surrogacy Laws in India 16 Supremo Amicus (2020) a specialised type of IVF. Putting sperm and eggs inside the fallopian tube is known as GIFT, whereas fertilised eggs are transferred in the fallopian tube during ZIFT. By utilising either one's own sperm and eggs of the intended parents or donated egg and sperm, a woman can carry a pregnancy for another person or couple through the process of surrogacy.7 The phrase "artificial reproductive technology" (ART) refers to a group of fertilisation techniques that are all characterised by the manipulation of both sperm and eggs in an attempt to conceive. The three most well-known ART techniques are surrogacy, in vitro fertilisation, and artificial insemination.8
2.1 Definitions of Assisted Reproductive Rights
I. Assisted Reproductive Technology (Regulation) Act, 2021: According to this Act “assisted reproductive technology with its grammatical variations and cognate expressions, means all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the reproductive system of a woman;”9 II. National Cancer Institute Dictionaries (NCI): NCI defines ART as, “A type of procedure used to treat infertility. The most common type of assisted reproductive technology is in vitro fertilization (IVF), which involves removing eggs from a woman’s ovary and combining them with sperm in the laboratory to form embryos. The embryos are then either placed in a woman’s uterus or frozen for future use.
Assisted reproductive technology sometimes uses donor eggs or sperm or may involve a surrogate or gestational carrier (a woman who carries and gives birth to a baby for a person who is not able to have children). Other types of assisted reproductive technology include gamete intrafallopian transfer (GIFT) and zygote intrafallopian transfer (ZIFT), but these are used less often. Also called ART. ”10 III. Centre for Disease Control and Prevention (CDC): According to CDC ART is- “ART includes all fertility treatments in which either eggs or embryos are handled. In general, 7 Keshav Sethi, Sethi & Association, “Assisted Reproductive Technology Rules, 2022 In India” V Indian Journal of Law and Legal Research (2023) 8 Aneesh V. Pillai, "Right to Access to Human Reproductive Technologies under Indian Legal Framework: A Bird’s View", 1 GLS Law Journals (2019)
9 The Assisted Reproductive Technology (Regulation) Act, 2021 (Act 42 of 2021) s.2(c)
10 Assisted reproductive technology, available at
https://www.cancer.gov/publications/dictionaries/cancerterms/def/assisted-reproductive-technology (last visited on May 24, 2024) ART procedures involve surgically removing eggs from a woman’s ovaries, combining them with sperm in the laboratory, and returning them to the woman’s body or donating them to another woman. They do not include treatments in which only sperm are handled (i.e., intrauterine—or artificial—insemination) or procedures in which a woman takes medicine only to stimulate egg production without the intention of having eggs retrieved.”11
2.2 History of Assisted Reproductive Technology (ART) in India
Utilising technology for reproduction is not a new concept. However, the establishment and the creation of arts as a distinct class of techniques meant to handle Reproduction with the use of technology is not new. In 1978 in Lancashire, United Kingdom, Doctors Robert G. Edwards and Patrick Steptoe provided medical care for Louise Brown, the first test-tube baby in the world, resulting in Edwards being awarded the Nobel Prize in Physiology or Medicine in 2010. In vitro fertilization, also known as "test-tube baby technology", is the term used to describe the process. Intracytoplasmic sperm injection (ICSI) is solely utilized for cases of male factor infertility. Freezing embryos, among other procedures, are new additions to the list of current ART techniques.
12 The first IVF project was launched by the Indian government in 1984 at the National Institute for Research in Reproduction (NIRR) in Bombay, following six years of such births. In partnership with King Edward Memorial Hospital in Bombay, NIRR began work on the project. The NIRR made an effort to assist those needy couples who were unable to conceive yet were seeking medical attention in government facilities since they were unable to pay for such expensive therapy. Indian IVF history began on October 3, 1978, when “Kanupriya”, commonly known as “Durga”, was born. This was the outcome of Dr. Subhas Mukherjee with his two colleagues' work in the same area in Kolkata. Then, on August 6, 1986, King Edward Hospital Bombay and NIRR collaborated to give birth to India's second IVF baby, Harsha.
After the Indian Medical Council validated, authenticated, and recognised NIRR's work, Harsha became the country's first officially recognised test-tube baby. Moreover, NIRR was given the task of establishing ART services in India in a way that is clearly defined by law. The control of sterility was addressed in the Government of India's “Ninth Five Year Plan”. The necessity for
11 What Is ART, available at
https://www. cdc. gov/art/whatis. html#:~:text=According%20to%20this%20definition%2C%20ART,donating%2 0them%20to%20another%20woman (last visited on May 20 2024) 12 Seema Nagar, “Artificial Reproductive Technology (ART) and Rights of Women in India”, 6 International Journal of Law Management & Humanities (2023) clinical counselling for couples who were incapable to conceive naturally and desired to employ ART treatments for the same was brought to light even though it was not included as a essential need. The intricacies of the use of ART techniques were being explored on a national scale for the first time. It was emphasised how important it is to handle medical concerns about tubal potency testing, diagnostic curettage, sperm counts, egg storage etc. The “National Rural Health Mission” (NRHM) established “Community Health Centres”(CHCs)to address “Reproductive Tract Infections” (RTIs).
However, the Tenth “Five Year Plan” disregarded the infertility testing that took place at the CHC level. In order to help all individuals in need of medical assistance and care due to India's infertility issue, the “Indian Society of Assisted Reproduction (ISAR)” has established a registry in order to control ART services in the country.
2.3 Types of Assisted Reproductive Technologies
A. In vitro fertilisation (IVF): This process involves combining male and female gametes (egg and sperm) to create a zygote that is external to the female body. Typical IVF procedures include: Transvaginal Ovum Retrieval: This procedure involves inserting a tiny needle into the back of the vagina to create a hole, then using ultrasound technology to guide the needle into the ovarian follicles to extract the fluid contained in the eggs. Embryo-transfer: at order to establish a pregnancy, one or two embryos are inserted into the female's uterus at a specific location using an injection. B. Surrogacy: A woman who becomes a surrogate mother bears children of another woman.
When a woman is unable to produce eggs, they make a deal with another woman who consents to be artificially inseminated using the sperm of the woman's husband, and she carries the kid on their behalf. In situations when a woman is able to conceive but is unable to bring a pregnancy to term, the embryo is externally generated using in-vitro fertilisation using the husband's sperm and the wife's eggs. The embryo is then placed in the womb of a surrogate mother, who carries children on their behalf. The surrogate can be fertilised externally in a lab setting via in vitro fertilisation (IVF) and have the embryo placed in her uterus, or she can be fertilised externally by squirting her husband's semen into her vagina. The married couple pays the surrogate mother for the use of her womb.
The sacredness of marriage is upheld in this scenario, as the kid would inherit the genetic makeup of the contracting couple. C. Intracytoplasmic Sperm Injection (ICSI): This technique involves injecting a single sperm directly into an egg to aid in fertilisation. It is usually utilised after traditional IVF has failed or in situations of male infertility. 13 D. Zygote Intrafallopian Transfer (ZIFT): ZIFT, like GIFT, is the transportation of fertilised embryos into the fallopian tubes of the woman. On the other hand, prior to transfer, the embryos in ZIFT are already fertilised in the lab. 14 E. Gamete Intrafallopian Transfer (GIFT): In this method, the woman's fallopian tubes are used to receive the sperm and eggs, which fertilise spontaneously. 15 F.
Intra-Cervical Insemination: The procedure of intra-cervical insemination involves injecting "unprocessed semen" into the mucus of the cervix and then pressing the semen against the cervix with a cervical cap or specialised vaginal tampon. G. Intra-Uterine Insemination: This process involves putting the greatest quantity of sperm into close proximity to the egg. H. Intrauterine Insemination: This method involves processing semen to increase its fertility before inserting it through the cervix and into the uterus cavity through the fallopian tubes uterine hole using a specially made catheter. I. Artificial Insemination Mixed: In this type of artificial reproductive technology, the infertile husband uses a combination of his own and the donor's semen to conceive his wife. J.
Homologous artificial insemination (AIH): This type of assisted reproductive technology involves injecting a lady only with her husband's sperm. Since the behaviour includes the 13 Assisted Reproductive Technology (Art) Regulations 2023, available at:https://plutusias. com/assistedreproductivetechnologyartregulations2023/#:~:text=Restrictions%20and%20Prohibitions%3A%20The%20Act, Rs%2010%20to%2025%20lakhs. ( Last visit on May 24, 2024)
14 Ibid.
15 Assisted Reproductive Technology (Art) Regulations 2023, available at:https://plutusias.com/assistedreproductivetechnologyartregulations2023/#:~:text=Restrictions%20and%20Prohibitions%3A%20The%20Act, Rs%2010%20to%2025%20lakhs. ( Last visit on May 24, 2024) husband and wife alone, there is no dispute about the children's validity in these situations. K. Heterogeneous Artificial Insemination: In this technique, the wife receives an injection of a stranger's sperm instead of her husband's. Since the sperm injected into the mother belong to a stranger, there are many doubts about the validity of the children while using this approach. There isn't a specific statute in India that addresses the rights and laws of children born via this.
2.4 The Regulatory framework for ART in India
In 2021, the Indian government introduced a more stringent Act called as the Assisted Reproductive Technology (Regulation) Act, 2021, to control the operations of ART facilities in the country. Aims: The purpose of this legislation is to address issues related to reproductive health, specifically those involving the use of ART to become parents or to freeze gametes, embryos, or embryonic tissues for future use due to infertility, disease, social concerns, or medical concerns. It also aims to regulate and supervise ART clinics and banks, prevent misuse of these resources, and address issues related to safe and ethical ART practices. National Board: Section 3 to 5 of the Act related to the “National ART and Surrogacy Board. ” The National ART and Surrogacy Board is established under Section 17 of the Surrogacy Act.
And the Surrogacy Act will control the National Board's composition, member terms of office, vacancies, member disqualification and appointment, eligibility, etc. Section 5 of this Act provide the Powers and functions of the National Boards. The National Board is able to advise the Central Government on areas of policy concerning assisted reproductive technologies. Assess and monitor the Act's execution, as well as any rules or regulations enacted, and suggest any necessary modifications to the Central Government. The Board also establishes a code of conduct for employees of banks and clinics, sets minimum standards for physical infrastructure, and specifies what kind of expert staff, lab, and diagnostic equipment should be used by banks and clinics in order to pass orders in accordance with this Act's provisions and to perform any other prescribed powers and functions.
State Board: Under sec. 26 of the Surrogacy Act, the State ART and Surrogacy Board in Constituted. And sec. 8 of the present Act provide the powers and functions of the State Board. As well as overseeing the enforcement and execution of guidelines and policies pertaining to assisted reproduction, the State Board is in charge of adhering to the plans and policies established by the National Board. Directions from the national board may be issued and carried out by the State Board. Registration: Sec. 9 to 11 of the ART Act provide the registration of Banks, Clinics etc. Scientific, technical, administrative, and support personnel will work together to create a national register that the central government may name the National Assisted Reproductive Technology and Surrogacy register.
Clinics, banks, and the kinds of services they offer will have central data created by the national registration. When establishing regulations, standards, and research topics, the national registry would support the national board. Duties of ART Clinic & Bank: Section 21 to 31 deals with duties of ART Clinic and Bank. Section 21 places broad obligations on banks and clinics, such as notifying the couple about the probability of success and implications. Clinics also have an obligation to make sure donors undergo medical testing to rule out illnesses. The clause also restricts clinics to only providing services to men over 21 and under 55 years old, or to women over 21 and under 50 years old. 16It is required by Section 22 to get the couple's written informed consent. Furthermore, the pair would guarantee insurance coverage for a female oocyte donor, according to this provision.
17 Under sec. 23 it is the duty of the clinic & Bank to maintain all accurate records. 18 In accordance with Section 24, clinics must adhere to additional restrictions, which provide that a woman may implant no more than three oocytes or embryos into her uterus in a method that may be defined by regulations over the course of her treatment. A woman cannot get therapy during a single treatment cycle using gametes or embryos from more than one man or woman. In order to perform the operations outlined in this Act, a clinic may not combine the semen of two people. To maximise the number of embryos available, the embryos cannot be divided and used for twinning. 19 Preimplantation genetic testing may only be used to screen human embryos for known, heritable or genetic, pre-existing diseases, as specified by section
25 of this Act.20 Section 26 of this Act prohibits the use of assisted reproductive technologies
for sex selection.21
16 The Assisted Reproductive Technology (Regulation) Act, 2021 (Act 42 of 2021) s.21
17 The Assisted Reproductive Technology (Regulation) Act, 2021 (Act 42 of 2021) s.22
18 The Assisted Reproductive Technology (Regulation) Act, 2021 (Act 42 of 2021) s.23
19 The Assisted Reproductive Technology (Regulation) Act, 2021 (Act 42 of 2021) s.24
20 The Assisted Reproductive Technology (Regulation) Act, 2021 (Act 42 of 2021) s.25
21 The Assisted Reproductive Technology (Regulation) Act, 2021 (Act 42 of 2021) s.26
Offences & Penalties: The clinic, bank, or representative thereof is prohibited from issuing, publishing, distributing, communicating, or causing to be issued, published, distributed, or communicating any advertisement about sex-selective assisted reproductive technology facilities in any media, including the internet. If these laws are infringed, the offender faces a minimum sentence of five years in imprisonment, which can go up to 10 years, a maximum fine of 10 lakh rupees, which can go up to 25 lakh rupees, or both.
22 Medical geneticists, gynaecologists, registered medical practitioners, and other individuals are prohibited from: (a) abandoning, disowning, exploiting, or causing to be abandoned, disowned, or exploited in any way the kids born through ART (b) selling human embryos or sperm, operating a business, agency, or racket for the purpose of selling, purchasing, or trading in human embryos or gametes; (c) importing or assisting in the importation of human embryos or gametes; (d) abusing women commissioning couple and gamete donor in any way; (e) transferring human embryo into a male individual or an animal; (f) Selling any person's embryos or sperm for scientific purposes; or (g) acquire gamete donors through any intermediaries or buy gamete donors.
Anybody who violates the aforementioned provisions faces the following penalties: for the first offence, a fine of not less than 5 lakh rupees, which may go up to 10 lakh rupees; for subsequent offences, a sentence of not less than 3 years, which may go up to 8 years; and a fine of not less than 10 lakh rupees, which may go up to 20 lakh rupees. 23
2.5 Obstacles facing during Implementation of the Act
The registration procedure for the many ART banks and clinics that are now in operation around the nation will be the primary obstacle to the Act's implementation. Moreover, the “national and state ART and surrogacy boards” will have a difficult time overseeing adherence to all parts of the Act, particularly the stringent enforcement of fines and other penalties in the event of non-compliance. Since health is a state concern, each state must create regulations tailored to its own circumstances. Legal issues might arise when local women selling surrogacy services and foreign couples sign surrogacy contracts. Even if it is illegal to utilise or transport sperm or eggs outside of the nation, there will be practical difficulties in implementing this law at seaports and airports. Furthermore, it will be difficult to establish and maintain the national
22 The Assisted Reproductive Technology (Regulation) Act, 2021 (Act 42 of 2021) s.32
23 The Assisted Reproductive Technology (Regulation) Act, 2021 (Act 42 of 2021) s.33
ART register and guarantee compliance from all parties involved. It should be made clear how information gathered from the national registration will be used and how confidentiality will be maintained. Any register should only be beneficial provided solid data is made accessible to provide policymakers with real-time feedback, which would necessitate cooperation and coordination from all parties involved.24
2.6 Shortcomings under the ART Act
A. The Act partially addresses a number of serious issues, but it is a noteworthy and crucial step in the right direction towards minimising the risk of unlicensed and illegal ART services as well as shielding donors and women receiving ART from the health risks resulting from unsafe and illegal treatments. B. The Act forbids the use of ART services by single men, divorced men, widower men, heterosexual couples who are cohabiting but not married, transgender individuals, and homosexual couples. This exclusion is important since it forbids the aforementioned people from utilising surrogacy as a method of reproduction according to the "Surrogacy Act". C. The Act, still is only relevant to "commissioning couples" who, following one year of uncontrolled coitus, have failed to become pregnant.
This narrows its application, and those who are not eligible have less possibilities if it involves getting pregnant. And last, there is no control over the price of the services; it might be changed with a few straightforward guidelines.
3 CONCEPT OF SURROGACY
One of the best methods for overcoming biological infertility is surrogacy. The practice of using one woman's womb to carry another woman's children is known as surrogacy. Most of the time One way to describe surrogacy is the process by which one woman bears a child on behalf of another who is unable to give birth to the child normally. For couples and individuals who want to have biologically related children and for those who are unable to conceive using ART (Assisted Reproductive Technologies) or other artificial reproductive technologies like 24 The Assisted Reproductive Technology (Regulation) Act, 2021: A Step in the Right Direction, available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10112746/ (Last visited on May 24, 2024) in vitro fertilisation, surrogacy has proven to be a desirable alternative.25
3.1 Definitions of Surrogacy
The word “Surrogate” comes from the Latin term “Surrogatus,” which denotes a person “appointed to act in the place of another. ”26 Some other important definitions of Surrogacy are as follows: I. Merriam-Webster Dictionary: Surrogacy defined by Merriam Webster Dictionary as “the practice by which a woman (called a surrogate mother) becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children. ” In a nutshell, that’s basic definition of surrogacy. 27 II. Black’s Law Dictionary: According this dictionary Surrogacy means “an agreement wherein a woman agrees to be artificially inseminated with the semen of another woman’s husband”. 28 III.
New Encyclopaedia Britannica: According to New Encyclopaedia Britannica “Surrogate motherhood, practice in which a woman (the surrogate mother) bears a child for a couple unable to produce children in the usual way, usually because the wife is infertile or otherwise unable to undergo pregnancy. ”29 IV. The Surrogacy (Regulation) Act, 2021: According to this Act “Surrogacy” means “a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.
” 30 25 Bhagavatula Naga Sai Sriram, “Assisted Reproductive Technology and Current Perspective of Surrogacy Laws in India 16 Supremo Amicus (2020) 26 Bhagavatula Naga Sai Sriram, “Assisted Reproductive Technology and Current Perspective of Surrogacy Laws in India 16 Supremo Amicus (2020) 27 Surrogacy Definition, available at: https://surrogate. com/about-surrogacy/surrogacy-101/surrogacydefinition/#:~:text=The%20Definition%20of%20Surrogacy,First%2C%20here's%20the&text=Merriam%2DWe bster%20Dictionary%20defines%20surrogacy,your%20basic%20definition%20of%20surrogacy. (last visited on May 20, 2024)
28 Rupali Rathore, "Commercialization of Surrogacy In India" 6 Journal of Emerging Technologies and
Innovative Research 623 (2019) 29 Surrogate motherhood, available at: https://www.britannica.com/topic/surrogate-motherhood (last visited on May 21 2024)
30 The Surrogacy (Regulation) Act, 2021(Act 47 Of 2021), S.2 (zd)
3.2 History of Surrogacy in India
Hindu mythology has several examples of surrogacy. The following list includes some significant examples of how the Hindu faith accepts surrogacy: In Bhagavata Gita : It is said in this puran that, when Vasudev begged Kansa not to kill every son born, Vishnu heard his pleas and moved a foetus from Devaki's uterus to Rohini, Vasudev's second wife. Krishna's sibling Balaram is the child that Rohini gave birth. Although Devaki and Vasudev told Kansa that the newborn was dead, Rohini nurtured Balaram in secret. 31 Mahabharata: In Mahabharata there are several instances of surrogacy procedure. Firstly, rather than giving birth to a normal child, Gandhari delivered a semi-solid substance. Maharishi Vyas separated the semi-solid substance into 100 pieces, and then he put each of those hundred pieces in a different pan, creating Kauravas.
32 Secondly, Maharishi Bharathwaj saw a holy nymph emerge from the water after taking a bath. Inspired by this sight, he felt inspired to place his semen in a yagna pot known as the "Darona," that was where Dronacharya, who was named after the vessel, was born. 33 In Jain Mythology: After an embryo was cleverly moved from the womb of Devananda, the wife of a Brahmin named Rishabdeva, to the womb of Trishala over 1,000 years after the doctrinal events in 599 AD, Mahavira, the 24th Thirthankar, was born. 34
3.3 Types of Surrogacy
There are several forms of surrogacy depending on how it is carried out. Some of the different types of Surrogacy are listed below: A. Traditional Surrogacy: This kind of surrogacy is also known as natural surrogacy. The
31 Jasdeep Kaur, “Surrogacy
A Paradox regarding Motherhood rights with Special Reference to India”, II The Legal Analyst 114 (2012) 32 Bhagavatula Naga Sai Sriram, “Assisted Reproductive Technology and Current Perspective of Surrogacy Laws in India 16 Supremo Amicus (2020) 33 Bhagavatula Naga Sai Sriram, “Assisted Reproductive Technology and Current Perspective of Surrogacy Laws in India 16 Supremo Amicus (2020)
34 Ibid.
child born through this type of surrogacy is related to the male partner's and the surrogate mother's genetics, rather than the genes of the intended couple's female partner. The surrogate mother is artificially fertilised with the male partner's sperm in this type of surrogacy. 35 B. Gestational Surrogacy: In this form of surrogacy, the infertile couple's husband's sperm are fertilised in vitro from the wife's ovum using an intracytoplasmic sperm injection (ICSI) or in vitro fertilisation (IVF) technique. The embryo is then transferred into the surrogate mother's uterus, where it is carried for nine months by the surrogate mother. In this case, the surrogate mother is not the biological mother of the child born through surrogacy; rather, she becomes pregnant solely through embryo transfer. Thus, "Host Motherhood" is another term for this kind of surrogacy. 36 C.
Commercial Surrogacy: Commercial surrogacy is one type of surrogacy in which the intended couple and the surrogate mother agree to handle the entire surrogacy process through mutual consent. Under this arrangement, the intended couple gives the surrogate mother a payment that is typically much higher than the medical expenses incurred and the income she loses as a result of being pregnant and giving birth to the child. This kind of commercial surrogacy is prohibited in India by the Surrogacy (Regulation) Act of 2021. 37 D. Altruistic Surrogacy: In an altruistic surrogacy, the surrogate mother receives no remuneration or incentive in exchange for her pregnancy. According to this kind of surrogacy arrangement, the surrogate mother will not be paid by the couple for gestational bearing children or for giving it up.
According to the Surrogacy (Regulation) Act, 2021, the intended couple may only choose altruistic surrogacy. 38
3.4 The Regulatory framework for Surrogacy in India
The President of India approved the Surrogacy Regulation Bill 2019 on December 25, 2021, following extensive background considerations and recommendations from a number of government agencies and ministers, including the Department of Health Research, the Law Commission of India, the Ministry of External Affairs, the Minister of Health and Family 35 Bhagavatula Naga Sai Sriram, “Assisted Reproductive Technology and Current Perspective of Surrogacy Laws in India 16 Supremo Amicus (2020)
36 Ibid
37 Ibid
38 Bhagavatula Naga Sai Sriram, “Assisted Reproductive Technology and Current Perspective of Surrogacy Laws in India 16 Supremo Amicus (2020) Welfare, the Ministry of Communication and Technology, the Ministry of Commerce and Industry, Parliamentary discussions, the Report of Parliamentary Standing Committees, and Public Interest Litigations. The Surrogacy (Regulation) Act,2021 enacted. The new legislation establishes new standards and requirements for intended parents, surrogate mothers, and related issues. Parties to Surrogacy: The phrases "Intending Couple" and "Intending women" are being given a highly restricted and limited interpretation by the legislation, which effectively eliminates a group of people and also has an impact on their right to family whether they are otherwise qualified to use surrogacy.
Qualification of Intending Couple and their Rights: The phrase "Intending Couple" has a limited definition when read in conjunction with sections 2(1)(h) and 2(1)(r) of the Act. This definition includes only legally married Indian men and women who are older than 21 and 18, respectively. In addition, it is crucial to note that the aforementioned couple must desire to use gestational surrogacy to become parents exclusively in cases when it is medically necessary. If a wife is between the ages of 25 and 50 and the husband is between the ages of 26 and 55, the couple is considered "eligible" after five years of marriage. A biological, adoptive, or surrogate kid cannot be the couple's only child. An Indian woman between the ages of 35 and 45 who is a widow or divorcee is also eligible to be an intended parent.
The intended parent will have all the powers of a natural guardian over their surrogate children, just as they would have with a legally recognised biological child. They will also provide the child all the privileges associated with being a natural child, including parenthood, support, and inheritance. The surrogate mother is the only one who may grant written agreement for an abortion; the intended parents are not permitted to do so. Qualification of surrogate Mother and their rights: Under the Surrogacy Regulation Act, 2021, the term "woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb and fulfils the conditions” 39as provided in sub-clause (b) of clause (iii) of section 4" is defined in a precise and stringent way.
Section 4 of the Act mandates additional requirements for the woman, including that she be between the ages of 25 and 35, married, have a child of her own,
39 The Surrogacy (Regulation) Act,2021 (Act of 47 of 2021), s. 4
and have a certificate from a registered medical practitioner attesting to her physical and mental well-being. Article 21 of the Indian Constitution guarantees the right to life and personal liberty, which includes a woman's right to choose her own reproductive way. This definition, however, specifically requires a surrogate woman must be genetically related to the intended couple. Which is being argued to be an arbitrary qualification because it limits the surrogate to only those women who are related to the couple, disqualifying other women who are also willing and suitable for surrogacy.
Under this legislation, the surrogate mother is entitled to certain privileges and rights, such as the ability to revoke her consent prior to the embryo's implantation in her womb, the right to express consent to become a surrogate, and informed consent regarding the treatments and their potential ill effects. In addition, a 36-month insurance policy covering difficulties after birth has been mandated by law from the intended parents/woman. However, since the children is regarded as their biological child, the surrogate will have no rights whatsoever over the born child and will be required by law to give the newborn to the intended parents or woman. Registration and Regulation of Surrogacy Clinics: The legislation has also included clauses pertaining to the oversight of and registration by an appropriate authority for surrogacy clinics.
These rules restrict the ability of surrogacy clinics and medical professionals (such as gynaecologists, paediatricians, and embryologists) to engage in, advertise, or advertise commercial surrogacy in any manner whatsoever. They also prohibit the misuse of surrogacy for purposes other than the child's sex determination. All of these actions have been deemed criminal crimes, and as a result, the registration may also be cancelled. National and State Surrogacy Boards and ART: The law also provides for the establishment of two tiers of these boards: one at the central level and others at the state level.
The boards' primary responsibilities are to advise the Central Government on issues pertaining to surrogacy policy, examining and overseeing the application of this Act's provisions, establishing a code of conduct for surrogacy clinics, evaluating the work of various bodies, and supervising the operation of the State Boards, which are established under Section 26. Offences: The recently passed surrogacy law lists a number of actions as offences, including soliciting, advertising, promoting, or pressuring someone to participate in commercial surrogacy, determining a person's sex by abusing the surrogacy process, abandoning or taking advantage of the vulnerabilities of a surrogate mother and child, illegally purchasing or selling human gametes or embryos, and any other act that would violate the law pertaining to assisted reproductive techniques or surrogacy.
Serious imprisonment and monetary penalties are imposed for these offences.
3.5 Social Implication of Surrogacy law
Implications for single couples: As it was previously mentioned, an Indian couple must be legally married in order to qualify for surrogacy. This means that all single couples who are living together and qualify for surrogacy are now excluded. The fact that the law and the Indian Apex Court both acknowledge cohabitation and grant responsibilities and rights to the cohabiting couples, as well as legitimacy to the children of these relationships, presents a legal conundrum. In light of article 14 of the constitution, which guarantees everyone the right to equality before the law, how can discrimination based on marital status be considered valid? Even if technology has advanced for the benefit of single individuals, a couple who is not married cannot have their right to bear genetically related children taken away from them just because they are medically incapable of bearing children.
Implications For Unmarried Men & Women Who Want To Have Children: The Surrogacy Regulation Act of 2021 prohibits any single unmarried female (apart from divorcees and widows) and any single male (regardless of divorce status) from becoming intended parents. This distinction again violates the fundamental rights of equal opportunity and life, as depriving someone of their basic freedoms—such as the right to family or children—is recognised by international documents such as article 8 and 16 of the Universal Declaration of Human Rights, to which India is a signatory. This is an infringement by the state without a reasonable connection.
Implications for transsexuals and homosexual couples: It has not been long since the nation's highest court acknowledged the identity of people of the same sex and protected their right to live in dignity as a component of their fundamental right to life under article 21 of the constitution, which upholds everyone's right to live in dignity, autonomy, and the freedom to make private decisions free from interference from the government, regardless of gender identity or sexual orientation.
In addition, the landmark decision of National Legal Services Authority v. Union of India40, which acknowledged transgender persons as the third gender and their rights alongside other people, mirrored the liberalised perspective of the Indian judiciary. It is quite paradoxical that, despite the fact that gays and transgender people are treated equally by the law with regard to other rights, they are not allowed to start a family or have children through standard surrogacy methods. Implication of Married Women Only Eligibility as Surrogates: The Act expressly stipulates that a woman may serve as a surrogate only if she has previously been married and given birth to a child of her own. Such requirements are rare and indicate a highly specific definition of a surrogate mother.
Again from the standpoint of equality, it seems illogical to assume that a married woman is the only one who can be a suitable surrogate. Thus, even if a woman may be eager to choose surrogacy, she is completely barred from the Act's provisions if she has never married but is otherwise healthy enough to conceive and give birth. Additionally, a woman can only serve as a surrogate once during her lifetime, which goes towards her autonomy over her body and reproductive decisions.
CONCLUSION
With assisted reproductive technology (ART), infertile couples and individuals now have more options. It is important to acknowledge the potential hazards associated with these technologies and guarantee their ethical and safe application. For many years, India has been one of the leading producers of assisted reproductive technology (ART). In many respects, assisted reproductive technology (ART) has benefitted society by enabling infertile individuals to become conceived and establish a family. India has a flourishing ART market, with several hospitals and clinics providing these treatments. In India, these operations likewise have a very high success rate. Patients who are thinking of using ART therapies should know the laws and guidelines pertaining to these practices.
They will be able to make knowledgeable decisions regarding their safety and well-being and feel more confident about the standard of care they get as an outcome. It is evident that India has a thorough regulatory framework for assisted reproductive technologies that prioritises patient safety. With these safeguards in place, people might feel
40 (2014) 4 SCC 438
sure that, when considering fertility treatment alternatives, they are getting excellent medical care. To guarantee that these therapies are administered safely and ethically, it is necessary to be informed of the dangers associated with them. Lastly, the researcher can suggest that there is need for a more comprehensive and adaptive regulatory system that ensuring equitable access of ART in India and Government should take initiative to aware people about their rights to access of reproductive technologies.