LEGAL, ETHICAL, SOCIAL CHALLENGES INVOLVED IN COMMERCIAL SURROGACY
Category: ARTICLE
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Abstract
The most discussed topic and debatable topic in recent days is Surrogacy, which has been discussed not only in India but all over the World, where the infertile couple pays the woman to carry their infant, where the role of woman is often perceived as solely related to carrying a baby to term and delivering it to someone else, Nowadays the Surrogacy is becoming the Business and more commercial, where it is impacting the larger society in terms of legal, economical, social and ethical aspects, in recent days many couples even being fertile are opting for the Commercial Surrogacy just to overcome the gestation period and pain of delivery. This issue is not only found in India but all across the world, where rich people adopt a surrogate mother to deliver their babies, this not only impacts legality but also it's playing with socio-ethical beliefs and hurts people's sentiments at large. Different countries have adopted different legal frameworks and guidelines to overcome this likewise India, based on the need and cultural aspects.
Keywords
Commercial Surrogacy, Exploitation, altruistic Surrogacy, Fraud.
Legal Framework of Different Countries.
Canada- A Country like Canada where the country allows only for altruistic Surrogacy. They regulate in such a way that the surrogate women will not get reimbursement more than the reasonable expenses and violation of this leads to fines and imprisonment.
United Kingdom- A well-developed country like the UK permits only altruistic surrogacy where under the act called Surrogacy Arrangements Act 1985 under the UK legal framework tells surrogate mother can be reimbursed only up to reasonable expenses and will not be able to get extra benefits, also The intended parent must apply for a parental order to become legal Parents after the child is born.
India- India is a country where people are bound with more cultural and religious emotions, In a country like India where the population and poverty are more, the people are likely to become Surrogate mothers to overcome poverty, In the Indian scenario The government has banned the Commercial Surrogacy, the act came in 2021where it allows only the Altruistic Surrogacy that too under specific conditions, where the Intension is clear to prevent people from the exploitation.
Ethical Challenges Faced During Commercial Surrogacy.
1. The rights of a child are affected largely- When the child is born out of Surrogacy, the child should not feel different from the other children, it's very crucial to ensure that the child is treated equally and it affects the child mentally. It's also important for the child to know their origin, as biologically also child shares a huge emotion and sentiment with the surrogate mother, so overall it impacts the child's identity.
2. Exploitation of the Surrogated Women who are in poverty and from the economically weaker section easily agree to become surrogate mothers, without knowing the larger impact and laws bound it, where the rich couple makes the surrogate woman a vessel for giving birth to their child. With the insufficient benefits to health and wealth of women.
3. Affects the relationship of the surrogate mother with the child- The child born out of this process is affected largely as the child shares a relationship with the surrogate mother Biologically, both are attached, and its impact ethically.
Other Challenges faced during Commercial Surrogacy.
1. Health risks faced during the Gestational period- Surrogacy is a complex procedure, involving various complexities that, may affect the surrogate women with larger health impacts.
2. Emotional impact- when the time comes when the surrogate mother is separated from the child, the emotional sequence arises for all the parties of loss, attachment, and sensitivity of people.
3. Legal Complexity Involved- Many of them are even not well aware of the law, which differs from country to country and state to state, without knowing the complexity they involve themselves in the agreement. Where they many times don’t follow the regulations and guidelines of the law and suffer in the future.
4. Frauds- Many frauds are happening in the country in the name of Surrogacy, where the broker plays a role in searching for a surrogate woman, where he plays the role of fraud, and the rich couple is frauded, many times as it is done illegally many people don’t approach the court, many like this have lost the lakhs of money in this act.
Regulatory Approaches made by the countries to Overcome the Commercial Surrogacy.
1. Prohibition- where many Countries protect from exploitation and socio-ethical concerns many have banned this Surrogacy, and have implemented strict penalties and imprisonment for those who violate this prohibition.
2. Strict regulations Many Countries like India and the UK have made strict regulations, allowing altruistic Surrogacy only and prohibiting paying the Surrogates beyond the reimbursement for reasonable expenses.
3. Regulatory bodies- The Regulatory bodies play an important role in controlling surrogacy practices, making investigations, and enforcing legal standards. They also prevent people from getting scammed in the name of Surrogacy. This regulatory body imposes huge fines and imprisonment on those involved.
4. Legal mechanism in Contractual agreements- The government enforces agreements through legal mechanisms, dealing with protecting all the parties involved from being Exploited and strict Agreements stating all the facts.
Indian Case Laws of Commercial Surrogacy.
1. Baby Manji Yamada Case(2008)- This case dealt with deciding the child nationality and legal parentage of the child born out of surrogacy, where the court Highlighted there was a lack of clear laws regarding the deciding the nationality and legal parentage, here the Japanese couple surrogated Indian women, where both divorced before the child was born, it bought lot of confusion in deciding the Baby manji Yamada nationality and legal Parentage and finally the child was given to the father.
2.Jan Balaz vs UOI- The 2014 case, was A very important case where the court raised concerns about the Exploitation of women and its ethical implications, which further banned commercial surrogacy for foreign nationals and restricted it to altruistic purposes for Indian citizens only.
Foreign country case laws of commercial surrogacy.
1.Baby M case – The United States case was held in 1988. Where the court raised legal and ethical debates about the rights of the intended people, surrogate mother, and the child born through surrogacy.
2. Foreign Citizens Surrogacy Case -The landmark case in Ukraine in 2019, The issue was raised related to parental rights and citizenship, and legal challenges regarding the foreign nationals involved in surrogacy arrangements, The court held there was a need for clear laws and regulations to protect all the parties involved.
Conclusion.
Commercial surrogacy most debated topic all over the world, the process itself is complex and it affects a larger section of people in terms of socio, ethical, economic, and legal considerations, As many of the judgments all across the globe concentrate on a need for strong and clear cut laws to protect all the parties involved in this process and protect them from exploitation, it is much needed the parents to understand all the consequence involved in this process, The parent who is much needed for surrogacy should follow all the essentials, rules, regulations under the government, failing to follow leads to strict penalties and punishments. Overall this is impacting people socially, economically, ethically, and legally.
Reference and Bibliography
1. Surrogacy Arrangements Act 1985, c. 49 (UK).
2. Surrogacy (Regulation) Act, 2021 (India).
3. Gupta, J.A., "Reproductive Labour: Surrogacy in India," Indian Journal of Gender Studies, 2012.
4. Centre for Social Research, "Surrogacy Motherhood: Ethical or Commercial," 2014.
5. Supreme court of India Online Judgements.
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WRITTEN BY - AJAY KUMAR H GUIDED BY - ADVOCATE ANIK
