Apex Court Says Commercial Surrogacy Is Becoming A Business And Should Not Be Allowed

Commercial surrogacy – known as gestational surrogacy in medical terms – is a booming industry in India, which generates revenue worth about $6 billion per year.

Expressing its concern on the same, the Supreme Court has directed the government to re-examine the policy to allow import of human embryo.

In 2013, the Centre issued a notification allowing import of human embryos for artificial reproduction paving the way for foreign couples to bring in frozen human embryos and rent a surrogate womb in India.

The bench headed by Justices Ranjan Gogoi and NV Ramana said various issues related to surrogacy were not covered by any law and the government must take a holistic view and bring in a legislation.

It further raised a question that import of human embryo amounts to commoditisation of human life and whether human rights of a surrogate child are violated as such a child would face psychological and emotional problems.
“Commercial surrogacy should not be allowed but it is going on in the country. You are allowing trading of human embryo. It is becoming a business. It has evolved into surrogacy tourism.”

However, the government said a surrogacy bill is in the works to regulate the issue.

The court asked the government to take a stand whether a woman who donates her egg in commercial surrogacy can be said to be the only mother or both surrogate and genetic mother can be said to be mothers of the child.

It asked the Centre to respond whether commercial surrogacy amounts to economic and psychological exploitation of the surrogate mother and whether the practice is inconsistent with dignity of womanhood.

The court said that the law is also silent on the fate of surrogate child if the commissioning couple refuses to take child in case he/she is physically and mentally challenged. It asked the government to look into all those issues and incorporate provisions to regulate them in the proposed law.

As per ICMR guidelines, surrogate mothers must be between 21 and 35 years. There should be a surrogacy agreement between the surrogate and intended parents including financial details, affidavit of surrogate mother’s husband relinquishing rights on the child, declaration of intent, details of IVF procedure, confirmation of gametes used by IVF doctor (own eggs/ donor eggs, husband sperm/donor sperm).

Also, there are additional charges for caesarean delivery vs normal delivery, twins vs single baby and such.

“We are of the view that Centre should be given a large period of time to consider the matter in its entirety including the necessity of a re-look into the notification and revert to the court on October 28,” the bench said.
Popularly known as Surrogacy capital or Baby Farm, Gujarat has become a destination for couples seeking wombs on rent. It is estimated that Gujarat contributes 40 per cent of total surrogacy market in India which generates $6 billion in yearly revenue.

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