A whole new industry has cropped up in the field of Medical Science with the advent of Surrogacy. And with every medical procedure, crops up a whole new area of misuse and the need for regulation.
The women again being a subject to the abuse of the medical procedure, some of them are being forced into being surrogates by their husbands for it being a very viable and easy source of income for the lower strata of society. Being said, it still acts as a stimulus for many women to fund their children's education, help them run their homes and lead a better life. But this just crops up the obvious ethical question.
The legal position today is regulated by the ICMR Guidelines for Surrogacy. But a concrete position has not been established yet despite the practice being in existence since the 80s. Neither do these guidelines establish or keep in control the many problems that can crop up with the practice of Surrogacy today.
Hence, a whole new plethora and aspect of law was discovered with the law of Surrogacy itself. A long history began with Bills and Ordinances, none of which were successful in establishing a concrete law that could regulate a complex and controversial medical procedure, yet a procedure that was a ray of sunshine for 10 percent of Indian couples suffering from infertility. With the intention of solving this complexion once and for all, The Surrogacy (Regulation) Bill was introduced as a private bill in the Parliament in November,2016.
The Bill bans Surrogacy as it is understood today and introduces a completely new perspective. The bill is one that bans Commercial Surrogacy. The Altruistic mode of Surrogacy, one that involves employing a womb without the involvement of money, is a concept legal in England since 1985. Although even in that country, there is a going amount of around 10 to 20k pounds for a womb. The new bill bans this procedure all together and restricts it to just allowing a near relative to be a commissioning mother. The most common philosophical question that arises is that should a woman be allowed to earn by (due to a lack of a better term) rent a womb?
The Right to Choose has been upheld by our Hon'ble Court a number of times. This right as a constitutional mandate cannot be ignored. Hence, Surrogacy, if it is to be understood is a Contract between commissioning mother and the intending parents. And being a Contract, it is a private affair between the parties. But the question remains, is it right to deny the procedure ignoring the Mandate and the established law of Contract?
Another concept that crops up or is going to crop up when dealing with the advent of medical science is the very complicated issue of the citizenship of the child. The Bill makes it completely illegal for foreigners to employ an Indian as a commissioning mother. Although even now, the Visa Regulations make it illegal. Hence, banning the procedure it does not make anything easier. It just acts as an escape policy.
Known as Fertility Tourism, this process where foreign nationals employ Indian Women for wombs acts as a source of income for many. Although misused, banning a potential crores of rupees worth of industry that includes but is not limited to Sperm banks, IVF clinics and Surrogacy Clinics, the livelihood of many a doctors and other stakeholders is gone with a flick of a button. Thus, putting a blanket ban bodes nothing well for these dependants.
A philosophical question mixed with a complex question of law. It still comes down to the boiling point that the eminent lawyer, Mr. Ranjit Sharma said in the arguments of the Aadhar Card case. Do we have right to our body? Does a person have full and absolute control over what she does with one's own self body or is it subject to restriction and sanction? This is not for us to decide. But we must. It is a matter of concern that even after seeing two widely publicized and complex cases bringing out the possible outcomes of Surrogacy and Fertility Tourism, we are still nowhere close to laying down a proper procedure and regulation mechanism.
Hence in conclusion, the situation is complex and an immediate action is necessary for its regulation and finally controlling the many issues that have and are supposed to crop up with the further advent of this miraculous yet, deeply ethical question the answers to which evades the best of us, but is not very hard if you really think about it.