The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
The practice of surrogacy is controversial, particularly in light of the acceptance of the procedure by well-known celebrities. For couples who are unable to conceive naturally, it is a blessing, even though it can be abused for profit. The Indian government passed the Surrogacy (Regulations) Act 2021 in 2021, which changed the previous regulations in a number of ways. Notably, it restricts foreigners' ability to apply for surrogacy in India and outlaws commercial surrogacy. This has resulted in a major setback for the organizations that arranged surrogacy for foreigners. The unjust treatment of surrogacy women was a major factor in the passage of this legislation. Their living conditions were inadequate, and they often did not receive the money that the intended parents had given the agency.[1]
Many people's dreams of parenthood have been realized through the use of assisted reproductive technologies (ARTs), such as in vitro fertilization (IVF) and surrogacy. India's surrogacy industry, particularly the commercial and trans-border form, has thrived because of the nation's excellent medical services, reasonable costs, and loose laws. India used to be referred to as the world's "baby factory." Through a number of administrative measures, the Indian government has tried to regulate surrogacy in an effort to end the exploitation of women. A minimum of two comprehensive pieces of legislation have been proposed in Parliament to regulate various aspects of surrogacy agreements. These bills, the Surrogacy Regulation (2016) and the Assisted Reproductive Technologies Bill (2008), were both unsuccessful in passing. It is a positive step for the government to propose a new law on this topic. The Surrogacy (Regulation) Act, 2021, aims to safeguard the weak and clarifies the rights of those involved in surrogacy agreements.[2]
Commercial Surrogacy in India
Thousands of couples are travelling to India, where there is less red tape and excellent medical care, to avoid the complicated and costly surrogacy process in the West. In India, the process is simple, affordable, and hassle-free. In 2002, India legalised commercial surrogacy as a component of its efforts to boost medical tourism, an industry that the Confederation of Indian Industry estimates currently brings in US$2.3 billion a year. Although exact numbers are unknown, it is currently believed that over 25,000 children, of which 50% are Western, are born to surrogates in India. However, surrogacy is completely uncontrolled, just like the rest of India's medical tourism sector. There is less medical guidance available to physicians beyond the succinct guidelines outlined by the Indian Council of Medical Research (ICMR). Serious questions concerning the ethics of surrogacy in India, particularly the treatment of surrogate mothers, have arisen as a result of the mix of profit-driven clinics and financially desperate surrogates.[3]
By virtue of the Surrogacy (Regulation) Bill 2016, this nation resolved in December 2018 to outlaw commercial and international surrogacy. With an estimated 12,000 kids born through transnational surrogacy in India, the country remained the top choice for commercial and transnational surrogacy. However, the lower house of the Indian parliament, the Lok Sabha, chose to change surrogacy into a compassionate, domestic, and relational practice in response to scandals that first surfaced in India and later spread to other Asian nations like Thailand and Nepal. From this point on, only a close Indian relative of a married Indian couple may perform surrogacy; there is no payment involved. The public argument advanced said that the goal of this new regulation was to shield women from worldwide exploitation and to defend the nation's reputation from the dehumanising viewpoint of surrogacy-related women's exploitation.[4]
Surrogacy (Regulations) Act, 2021, Section 4(ii)
The Surrogacy (Regulation) Act, 2021, just enacted into law, regulates surrogacy in India. It works to respect the moral norms of surrogacy while defending the rights of the intended parent and the surrogate mother. Section 4 of the Surrogacy (Regulation) Act, 2021, prohibits commercial surrogacy in India. It states unequivocally that no one may solicit, advertise, or induce commercial surrogacy or promote, encourage, or participate in it.
The term "commercial surrogacy" refers to a situation where the intended parents provide the surrogate mother with financial compensation or rewards in exchange for carrying out their pregnancy. The Act places a strong focus on selfless surrogacy, which excludes financial exchange and limits eligibility to Indian couples who have been married for at least five years but are unable to conceive. Additionally, the function restricts the kinds of people who can serve as surrogate mothers and the number of times a woman can serve in this capacity. Notable is the fact that the Surrogacy (Regulation) Act 2021 is a national law that the Indian Parliament approved. The Act established the National Surrogacy Board and State Surrogacy Boards to oversee the management of Section 4(ii) provides standards for gestational surrogacy; it prohibits commercial surrogacy but allows altruistic surrogacy. Furthermore, under this regulation, the only Indian partners who may engage in gestational surrogacy are those who have received a certificate of recommendation from the Board.
Section 4(ii)
“(ii) no surrogacy or surrogacy procedures shall be conducted, undertaken, performed, or availed of except for the following purposes, namely:
Provided that a couple of Indian origin or an intending woman who intends to avail of surrogacy shall obtain a certificate of recommendation from the Board on an application made by the said persons in such form and manner as may be prescribed.
Explanation. —For the purposes of this sub-clause and item (I) of sub-clause (a) of clause
(iii) the expression “gestational surrogacy” means a practice whereby a surrogate mother carries a child for the intending couple through implantation of embryo in her womb and the child is not genetically related to the surrogate mother;
(b) when it is only for altruistic surrogacy purposes;
(c) when it is not for commercial purposes or for the commercialization of surrogacy or surrogacy procedures;
(e) any other condition or disease as may be specified by regulations made by the Board;”]
Conclusion
The Act places a strong emphasis on protecting the rights and welfare of all parties, including the surrogate mother and her child. This ensures that surrogacy will remain an option for infertile families and helps to prevent potential exploitation and unethical practises within the surrogacy industry. With its stringent legal requirements and harsh consequences for violations, the Surrogacy (Regulation) Act 2021 seeks to strike a balance between permitting legitimate surrogacy arrangements and safeguarding the moral and ethical aspects of this profession. Ultimately, it demonstrates that the Indian government is actively working to promote a more responsible and regulated surrogacy environment, which is advantageous to all parties.
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