‘Motherhood’ is the state or experience of having or raising a child. Motherhood is one of the most powerful words and experiences one can think of. Nature has bestowed the beautiful and capacity to procreate a life within women and every woman cherishes the experience of motherhood. Mother is the most lovable and adorable person. No love can exceed or even match the love of a mother for her child. She has been blessed with the power to nurture a complete life in her womb with intense love and care.
A Jewish Proverb says that, “God could not be everywhere and therefore he made mothers.”
Right to reproduction is inborn as well as a legal right of an individual. Reproductive rights began to develop as a subset of human rights at the United Nation’s 1968 International Conference on Human Rights. The desire for children among couples is a universal phenomenon. From the ancient times, children are considered as a necessity for the continuation of the family lineage and a source of happiness for the parents. The absence of a child is considered as a stigma to the family. The primary purpose of marriage includes to procreate and to create a stable home in which children can grow and thrive. The pain and agony of not fulfilling the dream of having one’s own child is immeasurable. Psychologist’s has pointed out that birth of a baby creates a bond between the spouses which can help stressful marriages to sustain in the long run. However due to various reasons, a large section of the society are unable to have their child.
The inability to have a child which is known as infertility in medical terms is a global problem. Research has stated that one in six couples is suffering from these problems. According to the WHO Report the incidence of infertility across the globe including India is around 10-15 percent.
The science of infertility treatment has moved forward by leaps and bounds. With a range of alternative medical solutions to childlessness or infertility, surrogacy has emerged as one route for many couples. It has become an attractive alternative for couples and individuals who wish to have a child biologically related to them. With time the concept of surrogacy has become widely recognized all over the world. It has given hope to many infertile couples, who wanted to have a child of their own. Hence, taking advantage of the advanced medical facilities, they may seek alternative solutions like Artificial Reproductive Technology (ART), in – Vitro Fertilization (IVF) and, Intra-Uterine Injections (IUI), in the hope of having a child of their own.
MEANING AND CONCEPT OF SURROGACY
One of the most efficient methods to overcome both biological and social infertility is ‘surrogacy.’ Surrogacy has emerged as a new level of scientific advancement for reproduction. Surrogacy has provided opportunities to have a genetically related child to the couples who are unable to reproduce through artificial reproduction and in vitro fertilization.
Surrogacy is method or an arrangement, supported by a legal agreement, whereby a woman agrees to become pregnant, carry the pregnancy to due term, and give birth to a child or children, all of this for another person or persons, who are or will ultimately become the parents of the child or children and the surrogate does not have any genetic link with the baby.Intended parents may seek a surrogacy arrangement when either pregnancy is medically impossible, pregnancy risks present an unacceptable danger to the mother’s health or is a same sex couple’s preferred method of having children.
Monetary compensation may or may not be involved in these arrangements. If the surrogate receives money for the surrogacy the arrangement is considered commercial surrogacy, if she receives no compensation beyond reimbursement of medical and other reasonable expenses it is referred to as altruistic.
The word ‘surrogate’ has been derived from a Latin word ‘surrogatus’ meaning a substitute, that is person appointed to act on behalf of another. Traditionally, surrogate motherhood is referred to as ‘an agreement between a married couple who is unable to have a child because of wife’s infertility , and a fertile woman who agrees to conceive the husband’s child through artificial insemination, carry it to term, and surrender all parental rights in the child.’Surrogate motherhood is considered as a boon by infertile couples as it is revolutionary hope for having a child.
DEFINITIONS OF SURROGACY
According to Black’s Law Dictionary, surrogacy has been defined as “an agreement wherein a woman agrees to be artificially inseminated with the semen of another woman’s husband.”
The New Encyclopedia Britannica terms ‘Surrogate motherhood’ as the practice in which a woman bears a child for the couple to produce children in the usual way.
In Medical phraseology, the term “surrogacy” means using of a substitute in place of natural mother.
The ART Bill has defines the term surrogacy as ‘an arrangement in which a woman agrees to bear pregnancy, achieve through assisted reproductive technology, in which neither of the gametes belong to her or to her husband, with the intention to carry it to the term and hand over the child to the person or persons for whom she is acting as a surrogate.’
HISTORICAL BACKGROUND OF SURROGACY
There are no authentic documents survived up to contemporary times. Information is to be collected are from chronicles, legends, myths, epics and even the folk songs that have survived from oral transmissions from generation to generation. The concept of surrogate motherhood is well known from the ancient world. Some of the instances are traced as under:
- INSTANCES FROM ANCIENT INDIA
Hindu mythology offers instances of surrogacy and reflects the secrecy that still surrounds surrogacy practice. According to Bhagavata Purana, Vishnu heard Vasudeva’s prayers exhorting Kansa not to kill all sons being born. Lord Vishnu heard these prayers and had an embryo from Devaki’s womb transferred to the womb of Rohini, another wife of Vasudeva. Rohini gave birth to the baby and named him Balaram, brother of Krishna, and secretly raised the child while Vasudeva and Devaki told Kansa that the child was born dead.
According to the great Epic Mahabharta, Gandhari, wife of Dhritarashtra, conceived but the pregnancy went on for nearly two years; after which she delivered a mass (mole). Maharishi Vyasa found that there were 101 cells that were normal in the mass which were divided and planted them in a nutrient medium and were grown in vitro till full term. Out of these, 100 developed into male children (Duryodhana, Duhshasana and other Kauravas) and one female child named Duhsheela was born.
There are also other well-quoted examples available that refer to not only IVF but also to the idea that a male can produce a child without the help of female.
Sage Gautama had produced two children from his own semen, a son called Kripa and a daughter called Kripi, who were both test-tube babies. Similarly, Sage Bhardwaj saw a divine nymph coming out of river after having a bath and seeing such a beautiful woman, he felt discern and deposited his semen in pot used for yagna called Darona. This was from where Dronacharya was born and was therefore named after the vessel. Dronacharya later came to be known the teacher of Pandavas and Kauravas.
The story of the birth of Drishtadyumna and Draupadi is even more interesting and reflects the supernatural powers of the great Rishis. King Draupada had hostility with Dronacharya and desired to have a son strong enough to kill Drona. For this purpose he was given medicine by Rishi and after collecting his semen, processed it and suggested that artificial insemination homologous (AIH) should be done for his wife who however refused to do so therefore, the Rishi then put the semen in a yajnakunda from which Dhrishtadyumna and Draupadi were born.
- ANCIENT MESOPOTAMIA AND EGYPT
The practice surrogacy dates back to biblical times. The presence of first surrogate mother can be traced to have lived somewhere near the city of Hebron, the land of Canaan, two thousand years before the birth of Christ. Sarah, the infertile wife of Abraham. Sarah could not have children of its own so she gave her maid, Hagar, to her husband Abraham to produce them a child. The method used was copulation. Though Abraham was 86 years that time, but despite of his age he was still able to conceive a child. The outcome in this arrangement proved to be a productive one. In 1910 BC Hager gave birth to a son called Ishmael. Ishmael can be called as the first child in history born due to the so called traditional surrogacy program. But the major drawback was in this scenario was that the spouse became jealous and the surrogate became proud and refused to give up the identity of the child and consequently the spouse had both her and her child ousted.
The second surrogacy program was carried out in Summer Mesopotamia in the middle of the XVIII century BC. Rachel, wife of Jacob, commissioned her maid Billah to have a child by convincing Jacob to sleep with her.
The real start of history of surrogacy really began in the late 1800’s with the American Indians who were the first one to truly begin the surrogate mother history. If an Indian woman was found to be infertile, then her husband would go to the chief of his tribe and ask for help. He would then be sent to see the medicine man, who would give the wife certain herbal concoctions. Then, after the witch doctor said nothing could be done to help his wife, the husband would go to see the chief after which he was allowed to take another woman and make her pregnant, hopefully, so that he would be able to father of a son to carry on his tribe and the barren wife would have no biological ties with the child.
The American and Indians were not the only cultural group to use surrogacy as a means to carry on the family name. It has been known about throughout Europe and Spain and other such places. King would often bring in several surrogates until one bore him a son, then the surrogates would be kept as nannies to the child; the child would believe the King and Queen were its biological parents and know nothing about its genetic ties to the nanny. Often things of this matter were kept secret, because if such things got out in the kingdom, one could question the child’s right to the throne.
In many countries, surrogacy has been around since before records. Many cultures have belief systems that abide with the rules of surrogacy and those that do not agree can be thrown out of their families. Numerous religions and civilizations will actually celebrate the surrogate mothers, for their good deeds and service to others. During the 1980’s surrogate mothers were used by the gay community to build their families, then, it was frowned upon by society.
The world’s second and India’s first IVF baby, Kanupriya, alias Durga, was born on October 3, 1978, just 67 days after Marie Louise Brown was born on July 25, 1978.Through the efforts of Dr. Subhas Mukhopadhyay and his two colleagues in Kolkata. The birth of baby Kanupriya through the novel procedure was marked by tremendous controversy.
TYPES OF SURROGACY
Surrogacy can be classified on different basis
- On the basis of Selection of Surrogate Mother:
- Altruistic surrogacy: In this type the surrogate mother receives no financial compensation for her pregnancy or the relinquishment of the child to the genetic parents except necessary medical expenses. This type of surrogacy usually happens when the surrogate mother is a relative or family member or a close friend. The reason why no compensation is provided that, in this form is the decision to be surrogate consent from love and not for personal gains.
- Commercial surrogacy: In this type the surrogate mother receive over and above the necessary medical expenses for her gestational services. This usually happens when the surrogate mother is not related to the mother.
- On the basis of Genetic relationship:
When it comes to classifying on basis of an embryo, there are two types of surrogacy to contemplate: traditional and gestational.
- Traditional Surrogacy:
In traditional surrogacy, the surrogate’s egg is used to create the embryo of the child she is going to carry (either through intrauterine insemination or in vitro fertilization.)Then the surrogate mother carries the child for the full term and delivers it for the couple .The surrogate mother is the biological mother of the child.
In this surrogate is related to one of the intended parents, traditional surrogacy can provide a genetic link that would not have been possible with a donated egg. If the intended parents are a same-sex male couple, a single male or a heterosexual couples where the woman is unable to use her eggs, traditional surrogacy may give them the genetic link they desire. For intended parents who cannot find an egg donor or don’t want to have an anonymous donor or are looking to reduce the cost of their surrogacy, traditional surrogacy may be best suited for them.
- Gestational Surrogacy:
In gestational surrogacy, the intended parents create an embryo using their own egg and sperm or using donated egg or sperm. In this process the eggs of the mother are fertilized with father’s/donor’s sperm and then the embryo is placed into the uterus of the surrogate. Gestational surrogacy allows many intended mothers to be related to their child as the biological mother will be the one whose eggs are used and surrogate mother is called the birth mother. This type of surrogacy in common parlance is known as Full Surrogacy. Remaining embryos of intended parents from past IVF treatments can be used in a gestational surrogacy.
While traditional surrogacy was the only way to complete a process of surrogacy throughout most of history, over the past 30 years, gestational surrogacy has become the more popular way of surrogacy. It not only allows both parents of a heterosexual couples to be biologically related to their child, but it also helps eliminate some of the legal and emotional struggles that are usually occur with a surrogate being genetically related to the child she’s carrying.
Jurisdiction in India
Surrogacy (Regulation) bill, 2016
The Bill aims to control and regulate surrogacy in India by constitution of National Surrogacy Board at the central level and State Surrogacy Boards and appointment of Appropriate Authorities in the State and Union Territories for regulation of the practice and process of surrogacy and for matters connected therewith or incidental thereto.
- It bans all forms of commercial surrogacy in India. Except Altruistic surrogacy which is permitted on the fulfillment of certain conditions.
- Surrogacy is allowed only to those childless couples who have been married for at least five years, provided that at least one of them is proven to have fertility related issues.
- Married couples who have biological or adopted children, single people, live-in partners, homosexual persons would not be eligible to opt for surrogacy.
- Foreign nationals, NRIs, OCIs etc. won’t be allowed to commission surrogacy in India.
- Childless or unmarried women would not be allowed to be surrogate mothers.
- Surrogate mothers may only be close relatives, and they would be permitted only once to be a surrogate.
- The rights of both the surrogate mother and children are protected as per the Bill.
The act also aims to ensure better health and life of the surrogate mother by-
- banning commercial surrogacy
- bringing in altruistic surrogacy model
- Allowing a woman to be a surrogate only once in her lifetime.
The exploitation of women would be prevented especially of those who have no awareness about their rights. It would curb child trafficking and illegal surrogacy racket by; Prescribing the punishment and fine (10 years and up to 10 lakhs) for the undertaking of commercial surrogacy, abandonment of child, sell or import of a human embryo.
Conclusion and Suggestion
With the increased use of advanced technology in assisted pregnancies, more and more families will be able to realize their dream of parenthood. Families must consider the legal consequences of the medical choices they are making. They should plan for the legal process by which the infant born to them will be legally acknowledged as their child. The birth of this long awaited child should not be clouded by anxiety or legal uncertainty.
 Annual Report 2008-2009 Ministry of Health and Family Welfare, Government of India available at http://monh.nic.in/FINAL_HEALTH_MINISTRY_ANNUAL_REPORT_2008_09.pdf
 Why surrogacy bill is necessary?, Soumya Swaminathan, The Hindu, 2016.
 Kusum Jain,’Surrogate Motherhood : Some Legal and Moral Problems in Bio Ethics’, Vol 25 Issue 4, 1983 Journal of Indian Law Institute( 546 to 558) at 547.
 Yashomati Ghosh, “Surrogacy and Law: An Affirmative Approach to Deal with the Ethical and Legal Dilemma”, Vol. II.Issue 1, 2011 Journal of Law Teachers of India (83 to 92) at 85.
 Jasdeep Kaur, “Surrogacy: A Paradox regarding Motherhood rights with Special Reference to India”:, Vol. II No.1, 2012 The Legal Analyst (113 to 121) at 114.
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