Seeds of dispute in bundles of joy

Even as the final report in the surrogacy row involving Nayanthara and Vignesh Shivan gave the couple a clean chit while finding fault with the hospital, advocates practising at the Supreme Court and Madras High Court highlight the need for regulating such clinics by the Union and State health departments and call for better awareness on matters of surrogacy and assisted reproduction.
Advocates noted that the local healthcare infrastructure must be developed and well-equipped to support surrogacy-related cases effectively.
Advocates noted that the local healthcare infrastructure must be developed and well-equipped to support surrogacy-related cases effectively.Illustration by Saai

CHENNAI: After the Kollywood couple Nayanthara and Vignesh Shivan welcomed twins via surrogacy, the debate over surrogacy and its legal matters spilt not just merely on the social media platforms but also every nook and cranny of the State.

With many a remark on the couple breaking the provisions of the Surrogacy (Regulation) Act, which came into force in January 2022, the State government also got involved, setting up a probe to inquire if the couple had abided by all the regulations enforced by the Indian surrogacy laws.

Now, even as the final report by the inquiry panel gave a clean chit to the celebrity couple, the Directorate of Medical and Rural Health Services (DMS) has issued a notice to the Assisted Reproductive Technology (ART) centre of a private hospital in Chennai for failing to maintain proper details of the treatment provided to the couple and records on the health condition of the surrogate mother, thereby pointing to the need for better implementation of the law.

Even as the surrogacy practice — linked to a number of social and moral concerns — or the legal aspects, get analysed and debated at various forums, the most common thing advocates practising at the Supreme Court and Madras High Court, whom DT Next spoke to, pointed out was related to how the public health department is handling the issues.

According to them, the government should regulate and bring about more awareness of surrogacy to prevent unwanted altercations.

Speaking to DT Next, Madras High Court Advocate Thanga Vadhana said that in 2008, the Supreme Court of India in the Baby Manji Yamada vs. Union of India case highlighted the lack of regulation for surrogacy in India. Thereafter the Lok Sabha brought the Surrogacy (Regulation) Bill, 2016 and the Act came into force in 2021.

“In 2009, the Law Commission of India observed that surrogacy arrangements in India were being used by foreign nationals, and the lack of a comprehensive legal framework addressing surrogacy could lead to exploitation of poor women acting as surrogate mothers,” Thanga Vadhana pointed out. Now even as the law is amended, she said the surrogacy regulation should not impose strict conditions on deserving couples.

“If stringent restrictions are imposed, the deserving individuals may not be able to enjoy or cherish motherhood, and no rationale couple will come forward to disclose their inability to conceive a child to their close relatives, considering this. The government may regulate the implementation of altruistic surrogacy flexibly for the welfare of the deserving mass,” the advocate told DT Next.

Supreme Court Advocate Manoj Selvaraj said that surrogacy, according to the law, refers to the practice of giving birth to a child for an intending couple and of intending to hand over the child to the couple after the birth. “Though the Act strictly prohibits commercial surrogacy, this Act allows couples to get children under altruistic surrogacy. Altruistic surrogacy refers to the practice which doesn’t involve any monetary benefit (except the medical expenses). Under this law, surrogacy is permitted when the couples suffer from proven infertility and other altruistic purposes and are not undertaken for commercial purposes, including producing children for sale, prostitution, or other forms of exploitation,” Manoj told DT Next.

He further said that the Act should not exclude single persons, divorcees, live-in couples, widows, widowers, and gay couples. “It’s about freedom of choice and expression. The law shouldn’t encroach on that freedom,” he said. He also answered that there should not be a projection that surrogacy is only for rich people.

“Since many celebrity couples did have children under surrogacy, it is conceived in such a way that it is for the rich alone. The public health sector should do a massive awareness strategy for supporting couples who have issues with pregnancy or with fertility. Especially, enough awareness should be imparted in the rural areas and enough facilities should be available at the rural health centres to serve every couple who truly needs it, irrespective of their economic background, can afford this facility,” the lawyer opined.

He also wanted the government to take responsibility for providing proper awareness and the need to use the mainstream media — including television, social media, and newspaper — to create awareness about surrogacy.

“Especially, the government should bring supporting policies for same-sex couples, who are seeking to have a child. This unawareness is also due to social stigmas associated with this,” Manoj highlighted.

The advocates noted that the local healthcare infrastructure must be developed and well-equipped to support surrogacy-related cases effectively. “The government should allocate enough funds for it. Beyond that, there are several women’s organisations, with whom the government should partner for creating awareness among people,” they said.

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