Womb For Rent - The Intricate Dance Of Surrogacy
Author: LawSphereX
Category: Property & Real Estate
Published:
Updated:
WOMB FOR RENT: THE INTRICATE DANCE OF
SURROGACY
Sivaramakrishnan. M, B.Com., LL.B. (Hons.), School of Law, SASTRA Deemed University, Thanjavur, Tamil Nadu, India. Shri Hari Priya. K, B.com., LL.B. (Hons.), School of Law, SASTRA Deemed University, Thanjavur, Tamil Nadu, India.
ABSTRACT
Surrogacy stands as a crucial recourse for those grappling with infertility hurdles, proffering a beacon of hope and avenues for parenthood through the intervention of surrogate mothers. The legislative amendments ushered in during 2022 aim to bolster ethical standards, safeguard the rights of surrogate mothers, and erect unequivocal legal frameworks encompassing all stakeholders embroiled in surrogacy pacts. These regulations underscore stringent supervision, eligibility prerequisites, proscription of commercial surrogacy, and the primacy of informed consent in assisted reproductive procedures. By adhering to constitutional precepts of equity and human dignity, these mandates signify a momentous stride in fortifying the integrity and fairness of surrogacy modalities.
The scholarly exposition delves into the intricate terrain of surrogacy governance, with a keen focus on the Surrogacy Regulation Rules of 2022 in India. It further delves into the historical tapestry of surrogacy in India, the evolutionary trajectory of surrogacy legislation, and the confluence of the Surrogacy Regulation Rules of 2022 with extant statutes and constitutional paradigms. Overall, the study illuminates the profound reverberations of these regulations on ART establishments, surrogacy methodologies, and the welfare of all stakeholders ensnared in surrogacy compacts. Keywords: Assisted Reproductive Technology, Ethics, Law, Regulations, Surrogacy.
Introduction Surrogacy has seen a marked rise as an avenue for individuals or couples grappling with infertility or medical impediments to realize their aspiration of parenthood. This method entails the engagement of a surrogate mother who carries and delivers a child for the intended parents, facilitated through either traditional or gestational surrogacy modalities. The significance of this practice cannot be overstated, as it extends a beacon of hope and opportunity to those confronted with the inability to conceive through conventional means. Surrogacy affords individuals or couples the privilege of relishing the blessings of parenthood despite encountering hurdles in fertility. It serves as a viable recourse for an array of medical conditions or scenarios where conventional methods of conception prove unattainable.
1 The intricacies of surrogacy arrangements are multifaceted, encompassing legal, ethical, and emotional dimensions that implicate all parties involved. The enactment of regulatory reforms in 2022, notably embodied in the Surrogacy Regulation Act, represents a watershed moment in the landscape of surrogacy. These legislative revisions are geared towards rationalizing and fortifying surrogacy practices, with the overarching goal of ensuring ethical comportment, upholding the rights of surrogate mothers, and delineating the legal frameworks pertinent to all stakeholders. Such legislative adjustments epitomize a laudable stride towards fortifying the integrity and equity of surrogacy arrangements, thereby augmenting the overall experience for intended parents, surrogate mothers, and the progeny born through surrogacy channels.
2 Surrogacy in India The examination of the historical backdrop surrounding surrogacy necessitates a comprehensive grasp of its evolutionary trajectory and the concurrent legal framework, particularly within the context of India. Surrogacy, as an institutionalized practice, boasts a lineage spanning epochs, with instances dispersed across diverse cultural and societal milieus. However, the formalization and governance thereof constitute comparatively contemporary phenomena, influenced by a confluence of societal, technological, and ethical determinants. In the Indian context, the ascension of surrogacy to prominence transpired in the early echelons of the 21st century, propelled by strides in assisted reproductive technologies and India's 1 Bailey, Alison, Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy Faculty Publications - Philosophy. 1 (2011).
2 Nicole McDermott, what is surrogacy and how does it works? FORBES,
https://www.forbes.com/health/family/what-is-surrogacy-how-surrogacy-works/ (last visited on February 29, 2024)
emergence as a hub for cost-effective medical procedures. 3 Initially, the absence of exhaustive legislative scaffolding precipitated a proliferation of commercial surrogacy arrangements, precipitating apprehensions pertaining to exploitation, the commodification of feminine corporeality, and the dearth of legal safeguards for all stakeholders. In response to these exigencies, India embarked upon the formulation of surrogacy statutes aimed at orchestrating the practice. The inaugural legislative intervention materialized in the form of the Assisted Reproductive Technology (ART) Regulation Bill of 2010, envisaged to oversee fertility clinics and delineate protocols for assisted reproductive modalities, including surrogacy. Nonetheless, this legislative edict eschewed granular explication of surrogacy, engendering interpretive ambiguity and regulatory lacunae.
4 Consequent to this, the Indian legislature promulgated the Surrogacy (Regulation) Bill in 2016, designed to holistically regulate surrogacy arrangements. This legislative endeavor endeavored to proscribe commercial surrogacy, sanctioning solely altruistic surrogacy for Indian nationals meeting specified eligibility criteria. However, this legislative corpus elicited censure for its constraining character, circumscribing surrogacy access for myriad intending progenitors and surrogate matrons. 5 In the throes of ongoing dialectics and apprehensions, the Surrogacy (Regulation) Bill underwent successive iterations before crystallizing into the Surrogacy Regulation Act of 2021.
This legislative enactment aspired to rectify erstwhile constraints by furnishing lucid delineations, instituting regulatory agencies, and integrating safeguards to safeguard the rights and welfare of surrogate matrons and progeny born via surrogacy. Additionally, it introduced stipulations for altruistic surrogacy, imbuing the practice with ethical consonance whilst foregrounding the well-being of all stakeholders. 6
3 Animesh Nagvanshi, Surrogacy in India- A long journey for the nation. TIMES OF INDIA
https://timesofindia.indiatimes.com/readersblog/maternitybenefitactboonandbaneforthenation/surrogacy-inindia-a-long-journey-for-the-nation-51172/ (last visited on February 29, 2024)
4 Snehal Asthana, Assisted reproductive technology (regulation) bill 2010, YL CUBE,
https://ylcube.com/c/blogs/overview-assisted-reproductive-technology-regulation-bill- 2010/#:~:text=The%20Assisted%20Reproductive%20Technologies%20(Regulation,regulation%20of%20surrog acy%20in%20India. (last visited on February 29, 2024) 5 Indian express, https://indianexpress.com/article/what-is/what-is-surrogacy-regulation-bill-2016-5500725/ (last visited on February 29, 2024)
6 Satwinder singh, An overview of the surrogacy regulation act 2021, LGAL BITES,
https://www.legalbites.in/topics/articles/an-overview-of-the-surrogacy-regulation-act-2021-986640 (last visited on February 29, 2024)
The evolutionary trajectory of surrogacy legislation in India underscores a progressive transition toward more exhaustive regulatory paradigms, underpinned by ethical imperatives, transnational best practices, and the imperative of harmonizing the interests of intending progenitors, surrogate matrons, and progeny born through surrogacy. Overview of Surrogacy Regulation Rules 2022 The enactment of the Surrogacy Regulation Rules of 2022 represents a notable paradigm shift within India's legal framework pertaining to assisted reproductive technology (ART) and surrogacy modalities. These regulations, underpinned by the principles of justice, parity, and human dignity enshrined in the Indian Constitution, aspire to tackle ethical quandaries, safeguard the rights of all involved parties, and oversee ART establishments in consonance with extant Indian statutes.
7 Prominent facets introduced in the 2022 regulations encompass stringent oversight and regulation of ART facilities, ensuring adherence to ethical benchmarks and medical protocols. 8 Within these directives, eligibility prerequisites for prospective commissioning couples and surrogate mothers are distinctly delineated, consonant with the bedrock rights guaranteed by the Indian Constitution, including the prerogatives to life and personal autonomy. A salient modification heralded by the 2022 regulations is the proscription of commercial
surrogacy, with attendant penalties stipulated for contraventions. This proscription is congruent with India's pledge to combat exploitative practices and champion the dignity of women, as articulated in diverse Indian statutes and international treaties. Moreover, the regulations underscore the safeguarding of the rights of surrogate mothers, intending parents, and progenies born via surrogacy. They furnish a legal scaffold for arbitrating disputes and ensuring the well-being of all implicated parties, in consonance with the principles of justice and equitableness enshrined in the Indian judicial system. The objectives of the novel statute are multifaceted. Initially, it strives to ensure that surrogacy arrangements conform to ethical benchmarks, fostering the principles of self-determination, dignity, and non-discrimination as enshrined in the Indian Constitution. Subsequently, the
7 Sneha Banerjee, On surrogacy Indian law goes a step further but nor far enough. INDIAN EXPRESS,
https://indianexpress.com/article/opinion/columns/on-surrogacy-indian-law-goes-a-step-further-but-not-farenough-9187014/ (last visited on February 29, 2024)
8 Aaratrika Bhaumik, Why were the surrogacy rules modified? Explained. THE HINDU,
https://www.thehindu.com/news/national/why-were-the-surrogacy-rules-modifiedexplained/article67885927.ece (last visited on February 29, 2024)
regulations endeavor to oversee ART establishments, fostering the delivery of quality healthcare services and the practice of safe methodologies in assisted reproduction, in accordance with the right to health as recognized under Indian jurisprudence. 9 The ramifications of the Surrogacy Regulation Rules of 2022 on ART establishments and surrogacy practices are profound. These regulations augment accountability and transparency in the surrogacy paradigm, nurturing trust and assurance among stakeholders. Furthermore, they champion the well-being of surrogate mothers and offspring, upholding their entitlements to health, dignity, and non-discrimination as safeguarded by the Indian Constitution and international human rights accords.
Surrogacy rules 2022 and constitution The enactment of the Surrogacy Regulation Rules of 2022 signifies a momentous juncture in India's legal framework governing assisted reproductive technology (ART) and surrogacy procedures. Embedded within the bedrock principles enshrined in the Indian Constitution, these regulations are geared towards upholding the rights and dignity of all individuals involved in the surrogacy milieu. Article 21 of the Indian Constitution, encapsulating the right to life and personal liberty, inclusive of health and reproductive autonomy, finds resonance in the Surrogacy Regulation Rules of 2022. Aligned with this constitutional prerogative, these rules espouse the facilitation of access to safe and ethical surrogacy practices, thereby safeguarding the fundamental rights of surrogate mothers, intended parents, and offspring born through surrogacy.
10 Furthermore, the regulations echo the principles of parity and non-discrimination enshrined in Article 14 of the Indian Constitution. Through the delineation of explicit eligibility criteria for commissioning couples and surrogate mothers, the regulations ensure equitability and safeguard the rights of all stakeholders, irrespective of gender, marital status, or other determinants. 11 Article 47 of the Indian Constitution imposes an obligation on the state to ameliorate public health and foster the welfare of its populace. The Surrogacy Regulation Rules of 2022 9 Ranjana kumari, Surrogacy in India: Navigating rights, inclusion and child welfare. HINDUSTAN TIMES https://www. hindustantimes. com/ht-insight/public-health/surrogacy-in-india-navigating-rights-inclusion-andchild-welfare-101708053616024. html (last visited on February 29, 2024)
10 INDIA CONST. art. 21
11 INDIA CONST. art. 14
contribute to fulfilling this constitutional mandate by overseeing ART facilities and promoting top-tier healthcare services in assisted reproduction. Through rigorous oversight and supervision, these regulations augment the safety and efficacy of surrogacy practices, thereby advancing the state's responsibility to safeguard public health. 12 Moreover, the Surrogacy Regulation Rules of 2022 align with India's adherence to international human rights norms and treaties. The proscription of commercial surrogacy, as mandated by the regulations, reflects India's stance against exploitative practices and reaffirms its commitment to upholding the dignity and rights of women, in consonance with international human rights benchmarks.
Surrogacy rules 2022 and existing laws Regulations regarding surrogacy, as delineated by the Surrogacy Regulation Rules of 2022, intricately interlace with various extant Indian statutes, thereby fashioning a comprehensive legal framework to oversee assisted reproductive technology (ART) and surrogacy practices throughout the nation. These stipulations function in conjunction with prevailing laws, notably the Indian Contract Act of 1872. Section 10 of the Indian Contract Act mandates that contracts pertaining to surrogacy arrangements adhere to the essential requisites of a valid contract, thereby ensuring their enforceability and legal validity. 13 Moreover, these regulations harmonize with the Indian Penal Code (IPC) and the Criminal Procedure Code (CrPC), both of which delineate penalties for transgressions related to surrogacy.
By incorporating measures to penalize unethical conducts, including the practice of sex-selective surrogacy and the exploitation of surrogate mothers, these regulations bolster the tenets of justice and accountability enshrined within the IPC and CrPC. Furthermore, the Surrogacy Regulation Rules of 2022 are congruent with the provisions set forth in the Juvenile Justice (Care and Protection of Children) Act of 2015. This act accords children born via surrogacy with entitlements to protection and welfare, thereby guaranteeing their rights to education, healthcare, and an environment conducive to their holistic development. These regulations furnish a legal framework to redress disputes and safeguard the paramount interests of children born through surrogacy, in consonance with the overarching objectives of the Juvenile Justice Act.
12 INDIA CONST. art. 47
13 INDIAN CONTRACT ACT, 1872. S 10.
Moreover, these regulations intersect with the ART Bill of 2010, which endeavors to regulate ART clinics and procedures within India. By instituting controls and oversight mechanisms over ART facilities, the Surrogacy Regulation Rules of 2022 complement the aims of the ART Bill, thereby fostering the delivery of quality healthcare services and the adherence to ethical norms in the realm of assisted reproduction. In essence, the Surrogacy Regulation Rules of
2022 operate in concert with the prevailing corpus of Indian laws, thus engendering a cohesive
legal framework to govern surrogacy practices within the nation. Major regulations On eligibility In adherence to the Surrogacy Regulation Rules of 2022, notable amendments have been made to the criteria determining eligibility for surrogacy, marking a significant departure from preceding legislative frameworks. The prerequisites for heterosexual married couples now demand substantiation of infertility or disease, alongside the absence of any extant offspring, whether by biological means, adoption, or surrogacy. Conversely, for single women, eligibility necessitates Indian citizenship, attainment of legal majority, absence of progeny, and demonstration of infertility or disease.
These altered eligibility standards signify a distinct shift from former regulations, which extended surrogacy provisions to both married and unmarried individuals, encompassing single women and same-sex couples. Previously, the absence of marital status restrictions facilitated a broader demographic in accessing surrogacy services. However, the 2022 regulations confine surrogacy privileges solely to heterosexually married couples and single women, thereby excluding unmarried persons and same-sex unions. This reconfiguration in eligibility criteria purports to endorse conventional familial frameworks and ensure the welfare of surrogacy-conceived children. Nevertheless, detractors contend that these constraints might obstruct surrogacy accessibility for individuals falling outside the stipulated parameters, potentially denying them the prospect of parenthood via surrogacy.
Furthermore, the exclusion of unmarried persons and same-sex couples elicits apprehensions regarding legal discrimination and parity. On ART facilities The Regulatory Guidelines for Surrogacy, encompass an extensive framework for overseeing Assisted Reproductive Technology (ART) facilities, with the overarching objective of upholding ethical standards and ensuring the safety of patients. These regulations assume a pivotal role in the governance of ART establishments, instituting rigorous controls and
supervision mechanisms to uphold ethical norms and safeguard the welfare of individuals engaged in these procedures. The recent legislative enactment mandates the obligatory registration of ART clinics, compelling them to adhere to specified protocols and benchmarks in order to obtain legal authorization for operation. Through the imposition of registration prerequisites, the regulations aim to instill a heightened sense of accountability and transparency within ART facilities, thereby ensuring alignment with established standards and protocols. Furthermore, the Regulatory Guidelines for Surrogacy underscore the paramount importance of obtaining informed consent in the context of ART interventions.
Clinics are mandated to secure explicit consent from patients prior to commencing any form of treatment, thereby ensuring that individuals possess a comprehensive understanding of the procedures, associated risks, and available alternatives. This directive serves to bolster patient autonomy and enable informed decision-making with regard to reproductive health matters. Moreover, the regulatory framework incorporates provisions aimed at monitoring and mitigating potential risks associated with ART procedures. ART clinics are enjoined to maintain meticulous records of treatments administered, encompassing detailed information pertaining to donors, surrogate mothers, and intended parents. This meticulous documentation serves to facilitate traceability and foster accountability, thereby enabling regulatory authorities to oversee the lawful and ethical utilization of gametes and embryos.
In addition to the aforementioned measures, the Regulatory Guidelines for Surrogacy of 2022 impose constraints on specific practices, including sex-selective surrogacy and the exploitation of surrogate mothers, with the aim of forestalling ethical transgressions and safeguarding the rights of all parties involved. By proscribing commercial surrogacy and advocating for altruistic arrangements, these regulations underscore a commitment to prioritizing the wellbeing of surrogate mothers and upholding ethical standards in the domain of surrogacy practices. Legal Framework of Surrogacy Around the World Surrogacy is an evolving practice that varies significantly across various countries due to legal, cultural, and ethical considerations. Here the overview of surrogacy from a global perspective and the complex web of international law in relation to surrogacy is discussed.
A practical reproductive option now available to single people and couples dealing with infertility issues
is surrogacy. Nonetheless, a wide range of legal, cultural, and ethical factors have a significant impact on its practice, creating a varied worldwide environment. This article examines surrogacy from a global viewpoint, paying special attention to how it interacts with international law. Surrogacy laws vary widely across the globe, ranging from permissive and regulated markets to restrictive or outright banned practices. The absence of a uniform international legal framework has led to a complex scenario for individuals engaging in crossborder surrogacy arrangements. 14 Variety of legal framework and customary practices are followed in different countries.
France, Germany, and several Australian states uphold rigorous rules because of worries about exploitation and ethical difficulties, the United States, Ukraine, and some Indian governments are recognized for their comparatively lax regulatory frameworks. Commercial Surrogacy is sometimes a business arrangement in which the surrogate receives payment in addition to medical costs. India and the United States are two nations with sizable commercial surrogacy marketplaces. Then altruistic surrogacy refers to situations when the surrogate receives no financial compensation other than what is necessary to meet their medical and related costs. One nation that exemplifies an altruistic mindset is Australia. 15 Certain nations have instituted legal structures that oversee surrogacy, guaranteeing the safeguarding of the interests of all stakeholders.
State-specific laws are a hallmark of the United States, whereas Ukraine's extensive legal system has made it a more sought-after travel destination. There may be hazards and uncertainty for intended parents and surrogates in other places where surrogacy is not as controlled. Regardless of different cross-border restrictions Cross-border surrogacy agreements are common, with intended parents looking for surrogates in nations where the procedure is more easily available. However, this may give rise to moral and legal difficulties, such as those involving citizenship and the domestic recognition of parental rights. However international law operates within a certain framework of regulations and powers pertaining to certain agreements, treaties, national law and with notable organizations. 14 Salama, M. , Isachenko, V. , Isachenko, E. et al.
Cross border reproductive care (CBRC): a growing global phenomenon with multidimensional implications (a systematic and critical review). J Assist Reprod Genet 35, 1277–1288 (2018). 15 Ikemoto, Lisa C, Reproductive tourism: Equality concerns in the global market for fertility services, Law & Ineq 27, 277(2009).
In the Hague international conference on private international law addressed various aspects of family law but it could not provide a comprehensive framework for surrogacy. It is recognized that although the Hague Conference is essential in bringing private international law into harmony, its existing foundations fall short of offering a complete framework for surrogacy. Because of this lacuna in international law, surrogacy is governed by a variety of frequently contradictory state laws, which adds to the complexity of cross-border surrogacy partnerships. The lack of a particular, globally recognized legal framework for surrogacy creates issues with citizenship, parental rights, and the enforcement of contracts.
Surrogacy is a complicated and developing field that requires close examination from legal experts, decision-makers, and international organizations since it incorporates a variety of legal considerations, from contractual agreements to human rights and family law issues. 16 There are continuing talks and attempts to develop international norms that balance the interests of all parties concerned in order to overcome these disparities. The dynamic character of surrogacy and the worldwide reach of reproductive activities highlight the necessity of ongoing legal discussions and cooperation in order to create a completer and more united international framework for surrogacy in the future. Globally, surrogacy is a complicated process influenced by various legal systems and cultural norms.
The absence of a complete international legal framework presents obstacles for those who participate in international surrogacy. Future surrogacy regulations may be more uniform and morally sound if continued efforts to create international standards are made as the globe struggles with these complications. To guarantee a safer and more seamless surrogacy process, prospective parents, surrogates, and legal professionals need to navigate the complex web of international legislation with alertness and knowledge. Commodification of surrogacy – ethical, social and legal aspects Once considered a rather specialized form of reproduction, surrogacy has gained popularity recently and given rise to a number of ethical, legal, and societal issues. Surrogacy has become a business where reproductive services are purchased and sold, which is a characteristic of this phenomena.
Examining the ethical conundrums, legal repercussions, and wider societal effects of surrogacy commercialization, this essay analyses these areas. The commercialization of surrogacy has been the focus of changing and scrutinized laws in India. India's comparatively 16 Naik Africawala, A. , Kapadia, Women’s control over decision to participate in surrogacy, Bioethical Inquiry 16, 501–514 (2019).
lax legal environment has made it known as a global centre for commercial surrogacy until recently. But things changed drastically in 2018 when the Surrogacy (Regulation) Act was approved by the Indian government. Ethical dilemma Many ethical conundrums that arise from the convergence of cultural, social, economic, and medical issues have characterized the surrogacy scene in India. Primarily the ethical concerns argue that the exploitation of surrogate mothers from economically vulnerable backgrounds is mainly due to financial motivations. 17 Critics contend that transforming reproductive care into a business driven by the market might diminish the emotional and sacred dimensions of mother-child bonding and reduce it to a commercial exchange. There are ethical issues with the practice of choosing specific traits in intended parents or surrogate mothers for profit.
This might lead to a situation in which particular hereditary features become into commodities, which could strengthen societal inequality and create a market for particular desirable traits. The child born through surrogacy has rights that are subject to ethical issues. There are concerns concerning the child's right to know their country, citizenship, and biological origins. It is difficult to navigate complicated legal and ethical environments while ensuring that the child's rights are upheld. 18 To sum up, there are many ethical conundrums associated with surrogacy in India. These include issues with surrogate mother exploitation, commercialization of reproduction, selective practices, absence of regulation, international surrogacy tourism, child rights, and cultural and religious viewpoints.
19 In order to address these ethical issues, a careful balance must be struck between upholding vulnerable parties' rights, honouring individual decisions, and developing legal guidelines that put the welfare of all parties engaged in the surrogacy process. Societal aspects Empirical studies on surrogacy in India shed light on various societal aspects, offering insights into the experiences of individuals involved, societal attitudes, and the impact of surrogacy on families and communities. The empirical evidence suggests that there has been economic empowerment of surrogate mothers.
17 Aljazeera, https://www.aljazeera.com (last visited February 29,2024).
18 The Times of India, https://timesofindia.indiatimes.com(last visited February 29,2024).
19 AV Niekerk, LV Zyl, The ethics of surrogacy: women’s reproductive labour, 21 J Med Ethics 9, 9- 24(1995).
Based on empirical research, surrogacy can be an economically empowering option for certain women who are facing financial hardships. Research has shown instances when surrogate mothers have started small companies, improved their living situations, or educated their children with the money received via surrogacy. 20 For example, according to research done in both urban and rural regions, several surrogate moms saw surrogacy as a way to improve their financial situation and provide their family more chances. Empirical studies demonstrate how surrogacy is stigmatized in some societies. Research has looked into how cultural and religious beliefs, together with societal views, affect surrogacy acceptability. Stigmatization can impact intended parents, children born through surrogacy, and surrogate mothers.
For instance, regional surveys show differing levels of societal acceptability; certain communities consider surrogacy as a feasible alternative for motherhood, while others uphold traditional beliefs that exacerbate stigma. 21 Legal awareness and compliance The degree of legal knowledge among surrogate mothers, intended parents, and surrogacy agencies among individuals participating in surrogacy. Talks about the necessity of legal advocacy and education benefit from an understanding of the awareness of and adherence to current surrogacy laws. 22 For instance, surveys of surrogacy organizations and solicitors may identify knowledge gaps or noncompliance with the changing legal frameworks, pointing out areas where rules need to be better implemented. There was no comprehensive surrogacy law in India prior to the Surrogacy (Regulation) Act.
Due to the lack of regulations, the number of commercial surrogacy agreements skyrocketed, drawing intended parents from all over the world looking for accessible and reasonably priced solutions. 23 The main theme of The Surrogacy Regulation act 2018, was to address the ethical concerns and regulate surrogacy industry in India. The Act highlights the rights of the surrogate child, declaring that the kid would be considered the 20 Schenker, J. G, Gender Selection: Cultural and Religious Perspectives, J Assist Reprod Genet 19, 400–410 (2002). 21 Jaiswal, S, Commercial surrogacy in India: An ethical assessment of existing legal scenario from the perspective of women’s autonomy and reproductive rights, 16(2) Gender, Technology and Development, 1– 28(2012). 22 Saxena P, Mishra A, Malik S, Surrogacy: ethical and legal issues, Indian J Community Med 37(4), 211– 3(2012). 23 R. S.
Sharma, Social, ethical, medical & legal aspects of surrogacy: an Indian scenario, 140(suppl 1) Indian J Med Res ,13-16(2014).
intended couple's biological child. The Indian surrogacy market has been significantly impacted by the Surrogacy (Regulation) Act. It has drawn criticism even though it attempts to stop the exploitation of surrogate mothers and addresses ethical issues. Some contend that the act's restrictions, restrict options for reproduction and might encourage the rise of unchecked behaviour. 24 The Indian government seeks to balance resolving ethical issues with protecting the interests of all parties engaged in surrogacy agreements by moving away from commercial surrogacy and enacting restrictions. Surrogacy out of love and not for money Altruistic surrogacy is a process in which a woman undertakes to bear and deliver a child for intended parents without getting financial remuneration beyond essential medical and related expenditures.
The expression "surrogacy out of love and not for money" captures this idea. This kind of surrogacy places more emphasis on the surrogate's humanitarian and emotional reasons than on financial compensation. This kind of surrogacy emphasizes emotional bonds and pre-existing emotional connections of the surrogate and intended parents. Mostly in this case the surrogates are the close friends, family members, sibling stepping in to help as a selfless gift to help others experience the joy of parenthood. 25 Altruistic surrogacy aims to reduce the commercialization of reproductive services by not accepting payment for services beyond necessities. This method seeks to preserve the sacredness of the surrogacy procedure by emphasizing the selfless act of cheering others instead of viewing it as a business deal.
This kind of surrogacy is also ethically sound and it concerns about the potential exploitation of women in vulnerable economic situations. Certain legal countries that allow surrogacy could have rules or preferences regarding charitable agreements. Legal frameworks may be more receptive to emotional surrogacy agreements than to arrangements that are solely motivated by financial gain. In selfless situations, surrogates frequently convey a feeling of personal satisfaction from assisting others in realizing their aspirations of becoming parents. 26 The main sources of motivation in these circumstances are the emotional benefits and the fulfilment that comes from having a major, good influence on someone else's life.
In short, "surrogacy out of love and not for money" is a paradigm that minimizes the commercialization of the surrogacy process and emphasizes 24 Katherine Wade, The regulation of surrogacy: a children’s rights perspective, Child Fam Law 29(2), 113- 131(2017).
25 Sharyn Roach Anleu, Surrogacy for love but not for money, 6 GENDER AND SOCIETY 30, 30-48(1992).
26 Raval, V, Negotiating conflict between personal desires and others’ expectations in lives of Gujarati women, Ethos 37(4): 489–511(2019).
emotional attachments, relationships, and the unselfish act of helping others establish their families. It is motivated by altruistic objectives. Prophetic view of surrogacy regulations Future legal developments regarding surrogacy legislation will probably be influenced by shifting social perceptions, moral dilemmas, technical developments, and the need to balance the interests of all parties. There could be further attempts to harmonize surrogacy legislation globally given the worldwide nature of surrogacy contracts. International cooperation and agreements might aid in the establishment of uniform guidelines, guaranteeing the protection and universal recognition of the rights and obligations of intended parents, surrogate mothers, and surrogate offspring.
Future surrogacy laws may need to change in response to the ongoing developments in genetic engineering and reproductive technology. Legal frameworks may need to take new technology like genetic editing and artificial intelligence into account. 27 Regulations governing surrogacy may change as society views LGBTQ+ rights continue to develop in order to provide LGBTQ+ people and couples equitable access to surrogacy services. Legal advancements could concentrate on eroding obstacles based on discrimination and offering inclusive wording that acknowledges various family arrangements. Measures to give intending parents more legal assistance may be included in future legal advancements. This could entail defining parental rights at the beginning, expediting the legalisation of parenthood, and resolving concerns about the citizenship and nationality of children born via surrogacy.
Legal advancements could concentrate on educating and raising public knowledge of surrogacy. In conclusion, a combination of shifting social perceptions, technical breakthroughs, and a dedication to resolving ethical issues will impact surrogacy laws in the future. Conclusion The regulatory landscape surrounding surrogacy in India has undergone a profound transformation, characterized by the development of laws and regulations aimed at addressing moral dilemmas, protecting the rights of all involved parties, and establishing clear legal frameworks. The 2022 Surrogacy Regulation Rules signify a significant milestone in this journey, ushering in an era of accountability, transparency, and ethical behavior within the 27 Zulfiquar Memon , Muddassar Bagadia and Drishti Singh, https://www. mondaq. com ( last visited on February 26,2024).
surrogacy sphere. These regulations, through their emphasis on rigorous oversight, eligibility criteria, and the prohibition of commercial surrogacy, seek to uphold the dignity and rights of surrogate mothers, intending parents, and offspring born through surrogacy channels. The convergence of these regulations with existing laws and international human rights standards highlights India's commitment to promoting ethical practices and ensuring the welfare of all individuals involved in surrogacy arrangements. As surrogacy remains a critical solution for individuals grappling with infertility issues, the regulatory reforms introduced in 2022 serve as a beacon of optimism for a more just and ethically grounded surrogacy landscape.
By striking a delicate balance between safeguarding the rights of vulnerable parties, respecting individual choices, and promoting ethical behavior, these regulations lay the foundation for a more inclusive and responsible surrogacy ecosystem in India.