The “Wanted” Child: Identifying the Gaps and Challenges in Commercial Surrogacy in India

I. Introduction

With India opening its floodgates in the 1990s and embracing globalisation, the health sector has grown tremendously. On the parallel road, the fertility levels¹ dipped from 3.4 (children born per woman) in 1990–92² to 2.9 in 1998–99³ to 2.62 as per the 2011 estimates.⁴ Globally, evidence indicates a 9% prevalence of infertility with 56% of couples seeking medical care.⁵ These estimates are surprisingly similar between developed and developing countries.⁶

Of the many reproductive procedures available in modern times, one such procedure is surrogacy. The Indian Council of Medical Research defines surrogacy as “… an arrangement in which a woman agrees to carry a pregnancy that is genetically unrelated to her and her husband, with the intention to carry it to term and hand over the child to the genetic parents for whom she is acting as a surrogate.”⁷ The guidelines do not recognise surrogacy with oocyte⁸ donation. In surrogacy with oocyte donation “… a woman allows insemination by the sperm/semen of the male partner of a couple with a view to carry the pregnancy to term and hand over the child to the couple.”⁹ Thus, surrogacy may be classified on the basis of gamete donation. The former situation where the surrogate mother has no genetic link with the zygote formed and carries the pregnancy to term is known as gestational surrogacy. The latter scenario where the surrogate mother donates her gamete which is fertilised with the gametes of the male partner of the couple and carries the pregnancy to term is known as traditional surrogacy. At present, both forms of surrogacy are recognised in India.¹⁰ Types of surrogacy may be classified on a financial basis as well. The two categories based on financial considerations are commercial surrogacy and altruistic surrogacy.

Surrogacy has been and continues to be one of the most controversial of contemporary reproductive procedures, primarily because it relies on the reproductive services of a woman acting as a gestational carrier, whether or not she is also the genetic mother of the child she is carrying. The views vary across the spectrum. Critics have decried it as womb-renting, commodification of children, etc. The alternate viewpoint to it can be of a mutually beneficial arrangement. Various contentious issues swell up against this backdrop. These include enforceability of surrogacy agreements, determination of parentage, the child’s interests, etc. Of the various dilemmas that crop up, the interests of the child, who is the end-receiver of all the chaos, seem to take a backseat. Such concerns compel one to take sides. However, it cannot be ignored that while one may take sides, views need to be reconciled from the operational point of view. The pre-requisite of such reconciliation is the identification of gaps and challenges that exist in the legal system.

This article attempts to look at the gaps and challenges that make their presence felt in society with respect to the growing practice of surrogacy and the interests of the children born through such arrangements. While Part I of the article is introductory in nature, Part II brings to light the legal provisions under which the unregulated practice of surrogacy would potentially fall. Part III attempts to sketch out the gaps and challenges in the subject area that make their presence felt. Part IV sums up the article with the conclusion.

II. Bringing in the Legal Parameters

The legal provisions are silent on the area of surrogacy arrangement and thus, the unfettered practice thrives. A surrogate arrangement involves an agreement between the participating parties, i.e., the commissioning couple and the surrogate mother. The arrangement would more often than not include some form of payment to be made by the commissioning couple to the lady who intends to be the surrogate mother. The surrogate mother in return must agree to relinquish all her rights over the child to be born. The issue that arises, however, is whether such agreements are enforceable under the prevailing law of the land.

Given...