Abstract:

Surrogacy (Regulation) Act, 2021, helps and regulates the procedure of getting a biological child through a surrogate, while adoption laws help in the process of taking in someone else’s child. Both are different in the rights and regulations they impose. This article covers the evolution of Surrogacy and adoption laws in India and gives a brief about the important provisions of the Acts in regards to the procedures and regulations and in terms of the rights of the child born through surrogacy and adopted children.

Introduction

Surrogacy is the term used to define the process of one person carrying the child of another. It is mostly done through IVF. The person who carries the baby is called the gestational surrogate, and the person who intends to raise the child from such a pregnancy is called the intended parent. There is no genetic connection between the carrier and the child unless the woman is carrying a child of someone biologically related to her. Adoption is the process of taking someone else’s child into your home through legal procedures. Surrogacy and adoption are two different procedures, and they carry different legal implications. 

Key words

Surrogacy, Adoption, Surrogacy regulation.

Evolution of surrogacy and adoption laws in India

The Surrogacy laws were introduced in India as a guideline. It was not brought in as a complete legal framework. Surrogacy gained popularity in India with the advancement of the medical field, though it was practised in a different form in the past. In the epic Mahabharata, there is a mention of Niyog Dharma, which is similar to surrogacy. Though there was an option of adoption, Indians were more attracted to the concept of surrogacy as there is preservation of genetic material, and this, along with the rise in same-sex relationships and lifestyle-oriented disabilities, pushed the demand for surrogacy. There was also an increase in the use of Assisted Reproductive Technology (ART). The Indian Medical Association came up with the national guidelines to regulate the ART. This guideline was not intended for surrogacy but to regulate ARTs, which was a part of the procedure for surrogacy. In 2008, a draft bill was prepared but was not presented to the parliament. The Law Commission, under the chairmanship of Dr Justice A.R. Lakshmanan, in 2009, made an effort to deal with surrogacy. Based on this, a new bill was made in 2010. The 2008 and 2010 bills were distributed to the public, but the 2013 bill was not submitted to the public for their opinion. There were several other modifications made to the bill in 2013 and 2014. In 2016, the bill was presented in the parliament and was passed by the Lok Sabha in 2018, but was never presented in the Rajya Sabha. In 2019, the bill was renamed as Surrogacy (Regulation) Bill and was reintroduced and passed in the Lok Sabha. In 2020, the Union Cabinet approved the bill after making the changes suggested by the Rajya Sabha, and thus the Surrogacy (Regulation) Act, 2021 came into existence. 

The concept of adoption was widely practised in the USA. Adoptions were widely carried on the Americans as a form of social welfare. The Civil Rights Movement made many Americans adopt people of colour, and thus, there was trans racial adoption taking place. The industrial revolution and the British Rule in India were what introduced the adoption laws in India. The Hindu Adoption Act, 1956, is in a similar line to the English law. The Hindu Adoption and Maintenance Act, 1956 (HAMA) and the Guardians and Wards Act, 1890 (GAWA), overlook the process of Adoption in India. 

Framework of the Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021, lays down the regulations and prohibitions in regards to the surrogacy clinics. Accordingly, the clinic not registered under the Act are not to carry the process of helping in surrogacy. All the people employed in such institutions shall be qualified to carry on such procedures. It also states that surrogacy can be carried out only if the intended couple is medically indicated about the incapability of bearing a child. The woman who agrees to be a surrogate should have a child of her own and be between 25 to 35 years of age. Surrogates cannot provide their own gametes and shall not be a surrogate more than once in their lives. The intending couple should not have a surviving child either biologically or through adoption or surrogacy. An intending couple should be married. Surrogacy should not be carried out for producing children for the purpose of sale. There is a necessity for the consent of the surrogate mother after all the side effects are explained. A child born out of surrogacy cannot be abandoned. A child born out of surrogacy is a biological child of the intended parents and shall inherit all the rights and privileges available to the natural child. No one what so ever, it shall be can abort the child in the womb of the surrogate mother. The Act prohibits commercial surrogacy and the exploitation of the surrogate mother and child. 

Overview of the Adoption Laws in India

The HAMA applies only to the Hindus in India, including Buddhists, Jains, and Sikhs. It governs only the adoption process carried on by Hindus in India and does not apply to all other religions. The Christians, Muslims, Parsis and Jews in India are to follow the GAWA in order to adopt a child. The adoption under the HAMA is a complete adoption, and the child has all the rights similar to a biological child. This is because only the Hindu law provides for complete adoption. The other religions do not recognise full adoption. The adoption carried on under the GAWA does not provide the status of a child to the adopted kid. There is an existence of a guardian and ward relationship. After the ward attains 21 years of age, they are their own individual and are not entitled to the property of the guardian unless specified by a will, and even then, their position can be disputed by the biological children.  

Lacking in the Laws and suggestions

The Surrogacy (Regulation) Act, 2021, the HAMA 1956, and the GAWA 1890 are all silent on the rights of parents belonging to the LGBTQ+ community. There is no clear provision laid down in regarding to the same sex couple’s right to approach for surrogacy. The minimum amount of compensation which shall be given to the surrogate is not specified. There is a necessity to bring in provisions which deal with these issues, as same sex couples too have the right to get a child. Many women resort to surrogacy as a means of economic support, and therefore, there should be a clause specifying the minimum compensation they are entitled to. 

The HAMA provides the recognition of a legal child to adopted kids, and it is necessary that legislation is made on the same lines for the other religions, which are governed under the GAWA. The implementation of UCC would be a great measure to deal with the shortcomings and disparities in the Act.

Conclusion

The Surrogacy (Regulation) Act, 2021 and the Adoption Laws in India are very different from each other. Surrogacy (Regulation) Act, 2021, helps and regulates the procedure of getting a biological child through a surrogate, while adoption is the process of taking in someone else’s child. The Surrogacy (Regulation) Act, 2021 and the adoption laws are silent on same-sex couple’s rights, and that is something which is to be resolved through an amendment to the acts by the government. 

 

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WRITTEN BY: I Sharan