Abstract
The recent addition of the laws relating to surrogacy in India has widened the scope of this practice and opened the gates for discussions as to the contractual obligations of the parties. This article talks about how the laws relating to surrogacy evolved in India after independence. It also emphasizes the rights of the parties as mentioned in the Surrogacy Regulation Bill, 2020. Further, it focuses on the surrogacy contracts and the issues and challenges with the same taking into consideration the brfeach of surrogacy contract.
Introduction
The increasing rate of infertility in the world because of mental and psy- chological stress establishes a need for various reproductive methods known as assisted reproductive techniques (ART). Surrogacy is one such method which helps childless parents.
Surrogacy can be defined as the procedure in which a surrogate mother gives birth to a child and then hands over that newborn to the couple who is unable to conceive. IVF, that is, in vitro fertilization (IVF), as a technique is used in the process of surrogacy. There are some basic terms relating to surrogacy which would help in understanding the concept more clearly. These are discussed as follows:
Surrogate: She is the woman who needs to carry a child until he/she is born and then gives the same to the Intended Parents.
Intended Parents: The couple who is unable to conceive a baby due to any biological issue and hires a surrogate woman for this job is known as the Intended Parents.
There is a basic procedure that is followed in surrogacy in which the embryo of the Intended Parents is transferred to the surrogate mother. The surrogate mother carries the baby for the next nine months and as soon as the baby is born, it is given to the Intended Parents.
Several types of surrogacy exist in society which includes altruistic, gestational, commercial and traditional. Out of these, some are acceptable, whereas some are not authorized and unacceptable by society or are barred by law.
Surrogacy contracts are an essential part of this whole process, and it becomes essential to understand the procedure and provisions relating to these contracts. These contracts basically protect the rights of the parties involved in this process.
The contractual obligation arises in altruistic and commercial surrogacy with the difference being that the process involving compensation apart from medical expenses and insurance is commercial whereas altruistic does not involve any compensation.
To further understand these contracts, it is important to have a basic apprehension as to how the concept of surrogacy evolved and how these contracts emerged along with the legal principles involved in this process.
Although the Surrogacy Bill has been passed in the parliament, it still lacks some provisions in order to tackle the issues with surrogacy contracts. Hence, it becomes very important to understand these issues and try to interpret the implications of these rules and regulations.
Background (Evolution of Surrogacy Laws)
The roots of Indian surrogacy can be traced back to 1978 when India’s first IVF baby Kanupriya Alias Durga was born in Kolkata. 1 Surrogacy has been a century-old procedure but the development of laws related to it remained at the nascent stage for a very long period. In the year 2002, commercial surrogacy was legalized with the aim to promote medical tourism in India, 2 the low cost of facilities in India and the lack of strict legislation led to increase in the count of the Intended Parents as a result of which India’s surrogacy industry expanded rapidly, and India became the much sought after surrogacy destination but the unregulated business of surrogacy raised some serious issues, such as exploitation of surrogate mothers, embryo import and adoption of unethical practices, to profit the middlemen and the commercial agencies.
In 2005, the Indian Council of Medical Research issued certain guidelines to regulate surrogacy, but these guidelines lacked the statutory force. 3 A turning point came in the year 2008 with the judgement of the Supreme Court in Baby Manji Yamada v. Union of India, 4 which drew the attention of the government to enact a law on surrogacy and also held surrogacy would be permissible in India. A draft ART bill was then tabled in 2010 but it failed to become a law. The bill enumerated certain conditions and procedures for surrogacy, the bill also allowed the single parents to have a child through surrogacy, however it failed to protect the rights of the surrogate mother and also did not allow homosexuals and single foreign nationals to opt for surrogacy in India.
To prevent surrogate mothers from exploitation which they were facing from a long period, the surrogacy regulation bill was put forth in Lok Sabha on 21st November 2016, one of the main objectives of this bill was to abolish commercial surrogacy and to only allow altruistic surrogacy. The bill laid down certain criteria for the eligibility of the intending couple and the surrogate mother, such as before opting for surrogacy, the intending couple should have a ‘Certificate of Essentiality’ and the ‘Certificate of Eligibility’. The surrogate mother should also have a ‘Certificate of Eligibility’, the surrogate mother has to be a close relative of the intending couple, she should be a married woman having a child of her own, she should be between the age group of 25–35 years and must not be a surrogate mother earlier. 5 The bill also penalized certain acts such as exploiting the surrogate mother, commercial surrogacy and selling of embryo. The bill was then referred to a standing committee in 2017, on the basis of the report given by the committee, Lok Sabha passed the bill on 19th December, 2018; however, the bill lapsed and was reintroduced in Lok Sabha again in the year 2019.
Legal Position of Surrogacy in India (Contractual Obligations and Rights of Both the Parties)
The process of surrogacy involves both the rights and interest of surrogate mother as well as the Intended Parents, it becomes imperative in such a case to ensure that the needs of both parties are met and to prevent any kind of miscarriage of justice.
Recently, after so many attempts to pass a law on surrogacy a new bill named the Surrogacy (Regulation) Bill, 2019 was tabled and passed in Lok Sabha on 5th August 2019, it was then referred to the select committee which drafted the Surrogacy (Regulation) Bill, 2020 which was subsequently approved by the union cabinet on 26th February 2020. 6
Some of the notable features of this proposed legislation are as follows:
It seeks to establish regulatory bodies by establishing National Surrogacy Board and State Surrogacy Board at central and state levels, respectively, entrusted with the advisory and supervisory functions over various bodies constituted under the bill. The bill puts a blanket ban on commercial surrogacy and allows only altruistic surrogacy as a result of which the rapidly growing industry of rent-a-womb has been quashed. The bill allows altruistic surrogacy, but it also limits the same. Only Indian married couples between the age of 23 and 50 for women and 26 and 55 for men, or the non-resident Indians, persons of Indian origin or overseas citizens of India can opt for surrogacy. In addition to this, a couple opting for surrogacy cannot have a child of their own, except when the child they have is suffering from any kind of physical or mental disability and the Intended Parents should also have a certificate of medical indication from the district medical board necessitating surrogacy. The surrogacy bill of 2020 also widened the ambit of the earlier proposed 2019 bill which only allowed married Indian couples to opt for surrogacy but now an Indian woman who is a widow or divorcee aged between 35 and 45 years is also allowed to opt for surrogacy. In the 2019 bill, infertility was defined as the inability to conceive after five years of unprotected coitus or other proven medical condition preventing a couple from conception, the recent bill substitutes the term infertility and reduces the term of five years to one year. Now the condition precedent has been a medical indication necessitating gestational surrogacy.
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The bill also lays down that the surrogate mother shall not be genetically connected with the child. She should not provide her own gametes for surrogacy and also a woman can act as a surrogate only once in her lifetime.
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Surrogacy Contract
To clearly determine the rights and obligations of the parties involved in surrogacy, it is very essential to form a surrogacy contract. An agreement to use another woman’s womb for gestation can be referred to as the ‘Surrogacy Contract’.
The contract involves two parties, that is, the surrogate mother and the Intended Parents.
In the process of surrogacy, the intended couple have certain rights: (i) the right to select the surrogate mother of their own choice, (ii) the right to impose some reasonable restrictions on the surrogate mother for the proper development of the child, (iii) the right to know everything about the development of the child and the right to visit the surrogate mother and (iv) the right to have the custody of the child after birth. 9
The surrogate mother as well as the child born through surrogacy also have certain rights in order to protect them from exploitation. The rights of the surrogate mother includes (i) the surrogate mother has a right over the insurance coverage and the right to claim all medical expenses from the Intended Parents. (ii) In a situation when the continuation of pregnancy pose threat to the life of the surrogate woman, then in such situation the Fetus can be aborted and it can be claimed as a matter of right but in other situations, aborting the Fetus without the consent of the Intended Parents cannot be taken as a matter of right.
The child born through surrogacy is considered the biological child of the Intended Parents and has all the rights and privileges just like a natural-born child would have. There is also a prohibition on giving birth to a surrogate child for the purpose of sale, prostitution and disowning the child or any other form of exploitation.
The rights and obligations in any contract move hand in hand, the obligations of both the parties are listed below.
The obligations of the Intended Parents are as follows:
Paying the necessary cost to the surrogate mother, which includes the medical expenses for treatment during the gestation period, the cost incurred for the purchase of medicines or for any test in the laboratory and medical centres, the cost related to child labouring and other related costs. Taking the born baby in the appointed time under the surrogacy contract, the surrogate woman relinquishes all the rights to the Intended Parents after the birth of the baby. The legal parents then have an obligation to take the child with them within the stipulated period in the contract, which can be either just after the childbirth or a few days after the breastfeeding period. The legal parents shall not opt for more than one surrogate woman at a time. An insurance coverage should also be made by the Intended Parents in favour of the surrogate mother for a period of 36 months from a company or agent recognized by the Insurance Regulatory and Development Authority.
The obligations of the surrogate mother are as follows:
The first and foremost obligation upon the surrogate mother is to accept the embryo of the infertile couple in her womb, to hold and nurture the baby during the gestation period and finally give birth to the child. The surrogate mother should abstain from doing things intentionally which can cause any harm to the child in the womb. Upon the birth of the child, the surrogate mother shall relinquish all the parental rights over the child and hand the baby to the legal parents.
Issues and Challenges
Surrogacy contract plays a vital role throughout the process of surrogacy but there are some pertinent financial and legal issues relating to surrogacy contract which often leads to conflict and debate on the legal, social and ethical aspects of such contracts. A major lacuna is the absence of any legislation giving legal backing to surrogacy contracts; however, in such a situation, the Indian Contract Act, 1872, comes into play, which regulates such contracts. 10
The first issue which is repeatedly raised is whether a surrogacy contract results in baby selling or not?
Taking into consideration the question of baby selling, the current bill seeks to ban commercial surrogacy and only promotes altruistic surrogacy. Keeping in mind the welfare of the child, the bill also stipulates that the child born through surrogacy will be deemed to be the biological child of the Intended Parents.
Another controversial issue which is often raised in contemporary times is whether surrogacy contracts should be made enforceable or not?
For a contract to be enforceable in the court of law, it must satisfy all the prerequisites of a valid contract mentioned under Section 10 of the Indian Contract Act,1872, which states that ‘All agreements are contracts if they are made by free consent of the parties, competent to contract, for a lawful consideration and with a lawful object and not hereby expressly declared to be void,’ as the surrogacy contracts are also regulated by the Indian Contract Act, therefore to be valid they should satisfy all the aforesaid conditions. Despite this, the enforceability of surrogacy contracts has been questioned on various grounds listed below:
The supporters of surrogacy contracts argue on the ground that if such contracts are made unenforceable then it would undermine a woman’s ability to enter into a contract freely for the use of her body. Moreover, if surrogacy contracts are made enforceable then the parties to the contract can avail for an effective remedy in case of any breach. The opponents on the other hand argue that if these contracts are made enforceable then it would result in baby selling, exploitation of the surrogate mother and many other issues. Another argument often put forth against surrogacy is that it leads to the commodification of motherhood. In the process of surrogacy, the surrogate mother procreates the child and hands it over to the Intended Parents after the birth of the child, hence it is criticized that surrogacy commodifies the reproductive ability of a woman. On the contrary, the supporters argue that commodification can be associated with commercial surrogacy. The use of one person for helping another cannot necessarily be considered as commodification. It has been argued in favour of surrogacy that if on the ground of commodification, surrogacy contracts are made unenforceable then it would result in violation of the rights of the surrogate mother of procreation and even the right to privacy which includes the right to make a decision to bear or beget a child and right of an individual over her body.
A legal issue which often crops up regarding the surrogacy contract is whether the surrogacy contract is opposed to public policy or not?
According to Section 23 of the Indian Contract Act, a contract which is immoral and opposed to public policy is considered as void and unenforceable. All types of surrogacy contracts are generally criticized on the ground that they are opposed to public policy. The term ‘public policy’ has not been defined in the Indian Contract Act; in general, it can be said that public policy encompasses all the principles to protect the welfare of the people. The supporters of surrogacy contract argue that in the case of surrogacy contracts it can be pertinently observed that these contracts do not cause any injury to public welfare or public interest rather surrogacy acts as a boon to those who are not able to beget a child due to various medical reasons. To declare a contract illegal, there should be a strong justification. Merely curtailing the rights of the people to freely enter into contract on the ground of public policy cannot be justified.
Surrogacy is intertwined with the concept of human rights, majority of times, it has been argued whether the formulation and enforcement of surrogacy contract results in slavery and violation of human dignity.
The opponents of surrogacy consider it as modern slavery because a surrogacy contract binds the surrogate mother, and she has to abide by the conditions imposed by the Intended Parents and the medical practitioner. However, on the other hand, in the case of slavery, the slave does not have any freedom of his own and can also be brought or sold by the master, but in the case of surrogacy, the surrogate woman herself agrees to enter into such contract. Duties imposed on the surrogate woman are also reasonable just to ensure the welfare of the child, and it does not undermine the inherent dignity of the surrogate woman but provides her with various rights.
Breach of Contract
A major challenge which is faced in surrogacy contracts is regarding the breach of contract and the enforcement of effective remedies thereon. Although surrogacy contracts are also governed by the Indian Contract Act but due to the peculiar nature of surrogacy contracts, it becomes difficult to determine the appropriate remedy in case of a breach.
A breach of contract takes place when one of the parties by his act makes it impossible to perform his obligation or fails to perform such obligations. In surrogacy contract, if either the surrogate mother or the Intended Parents fail to perform their obligations then it would amount to breach of contract and the other party will be entitled to remedy. Surrogacy involves a chain of the process starting from the identification of the surrogate mother, the implantation of the embryo to the delivery of the child. A breach can take place at any point of time in the entire process. In case the breach of contract takes place before the implantation of the embryo either by the Intended Parents or by the surrogate mother, then it would be considered an anticipatory breach which is governed by Section 39 of the Indian Contract Act. In such a situation, the party aggrieved has two alternatives: either he/she can put an end to the contract immediately avail for the remedy without waiting for the date of the performance of the contract or may not put an end to the contract and wait for the performance of the contract. Thus, in case of anticipatory breach by the surrogate mother, the Intended Parents can put an end to the contract without waiting for the appointed date for the implantation of the embryo or they may subsist the contract and can avail for damages thereafter for any loss suffered by them. In case of anticipatory breach by the Intended Parents, the surrogate mother can either end the contract and claim the damages or can even opt for subsisting the contract and can wait for the due date of performance before claiming damages.
A breach can also take place after the implantation of the embryo; in case the implantation is unsuccessful, the contract will automatically come to an end but if the implantation takes place successfully, then the contract will subsist and the parties will be bound by their obligations. During pregnancy, if the surrogate mother intentionally performs any activity affecting the development of the child, such as smoking, drinking and not taking proper medications or aborting the child, without the consent of the Intended Parents, then it would amount to breach and the Intended Parents will be entitled to compensation. However, an important question which arises here is regarding the quantum of compensation. In such a crucial situation, the court may appoint a committee to determine the quantum of compensation keeping in mind financial loss as well as the mental suffering faced by the Intended Parents. In case the breach of surrogacy takes place by the Intended Parents in a way that they are not providing for medical expenses or the insurance to the surrogate mother, then the surrogate mother can approach the court for issuance of order of specific performance and even after that if the Intended Parents continue to commit the breach of contract, then the surrogate mother could abort the Fetus.
If after the birth of the child, the surrogate mother refuses to hand over the child to the Intended Parents or the Intended Parents refuse to take the child, then it would amount to breach; however, in such a situation it becomes difficult for the court to compensate the actual damage in monetary terms in such cases, the court usually issues an order of specific performance.
Conclusion
With the development of science and technology, many changes have been introduced in human life. There has been the emergence of latest technologies in the field of reproductive sciences, such as in vitro fertilization and embryo transfer, which have acted as a ray of hope for those couples who cannot beget a child due to medical reasons. Surrogacy is a very important sector growing rapidly in India, but due to the absence of any specific legislation, surrogacy continues to remain like an uncharted territory in India. The peculiar nature of the surrogacy contract and the intricacies involved in the process of surrogacy necessitates to have a specified legislation for surrogacy. Although in case of any dispute, the Indian Contract law is made applicable on surrogacy contracts, due to the absence of any specific legislation, the rights and interests of both parties get adversely affected.
The proposed bill, that is, the Surrogacy (Regulation) Bill, 2020, is on its path to become a legislation; however, the bill still has to be reviewed closely in order to make it a perfect piece of legislation so that no issue is left unaddressed. Listed below are some of the suggestions with respect to the current bill:
The bill bans commercial surrogacy and only promotes altruistic surrogacy but if fails to address the issues like black marketing or surrogate mother extracting more money out of the pockets of the Intended Parents which can be a cause of a legal battle between the parties. With the growth of the women workforce, most of the women nowadays are working, the current bill fails to reimburse the surrogate woman for the loss of wages incurred by her during the process of surrogacy. The bill must also lay the role and responsibilities of both parties in unambiguous terms and should also clearly provide for the rights of the child born through surrogacy. There is a need for a higher standard of care and protection while formulating surrogacy contracts since surrogacy is a sensitive area on moral, legal and social grounds; therefore, no scope should be left for any lacunae or loopholes regarding the same.
Footnotes
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The authors received no financial support for the research, authorship and/or publication of this article.