This post is written by Ishita Goyal, a student of Symbiosis Law School, Noida. Her research interests include gender studies, sexuality and law.
The 2021 Netflix’s movie, MIMI was a moving take on motherhood and surrogacy. It highlights the aspect of commercial surrogacy which has often been a point of debate. ‘MIMI’ is a story of a young beautiful dancer based in a small town of Rajasthan who is approached by an American couple to be a surrogate mother for them. MIMI, initially taken aback from the very idea of surrogacy, eventually agrees after seeing it as a lucrative opportunity to fund her dream of becoming an actress. Her life turns upside down when, to her utter dismay, the intended American couple abandon her in the midst of her pregnancy after learning that the child has the high chances of being suffering with a down syndrome. The film takes a leap of few years and it is shown that upon finding abut the child being normal, the couple are back to take their child when all this while, MIMI had herself raised the child and given up on her cherished dream of making it to Bollywood.
As dramatic as it sounds, the movie raises several questions with respect to how surrogacy is viewed in the country as well as the societal and moral misconceptions on the same. It also forces the viewers to ponder what the law has to say on MIMI’s situation who ended up raising the surrogate child after getting betrayed. Can the intended couple come and claim the child as and when they want? Does MIMI gain parental rights over the child upon having given birth to him?
Legality of Surrogacy In Present Day and The Human Rights Tangent
The Supreme Court of India in a case, Manji Yamada v. Union of India,[i] observed that in the garb of livelihood, there’s money making racket that is operating at the cost of the health and rights of many poor young women. The 18th Law Commission report observed that legal issues regarding surrogacy are very complex and must be addressed with a comprehensive legislation in place.[ii] In the light of the same, the Surrogacy Regulation Act of 2021 (henceforth also referred to as ‘Act’) was brought in force which prohibited any sort of commercial surrogacy arrangement. including for sale, prostitution or any other forms of exploitation.
The notion of privacy has been regarded highly by the courts across the globe. One of the interpretations of the right to privacy, personal liberty also brews an understanding that a woman should be able to exercise her right to exercise her reproductive autonomy as per her wish. Thus, the Act has not completely decriminalised Surrogacy and has allowed an aspect of the same called as ‘Altruistic Surrogacy’, which is an arrangement that “involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.”[iii]
In order to safeguard the women from any plausible exploitation, the Act has made the entire process highlight scrutinized. So much so that now, as per section 4 of the Act, no woman is allowed to act as a surrogate mother more than once in her lifetime. Further, insurance coverage in favour of the surrogate mother from the time of delivery until expiry of 3 years is to be provided. Now, the intending parents cannot just pick anyone to be a surrogate and undertake the same as their private affair. The intending couple or the intending women are mandated to approach the ‘appropriate authority’ (section 35 of the Act) with a willing woman who agrees to act as a surrogate mother and upon the sanction by the same can the process proceed.
Can the intended parents abandon the child? Who is responsible for the child?
Sometime back in 2012, the tragic story of Gammy made headlines in the media when it came to light how his biological parents abandoned him after knowing that the child suffers with a Down syndrome.[i] The Thai surrogate mother later declared to keep the child.[ii] Simultaneously, an unreported case on similar facts came forward in India where the child was abandoned by the intending parents and was later given for adoption to another parents.
Before the introduction of the Surrogacy (Regulation) Bill, 2021 there was no such legal framework governing such gruesome incidents and thus broad contours of the Indian Contract Act could be applied in order to avail any relief. Thus, if at all the intended parents decided to abandon the child in the midst of the pregnancy, it would be treated similar to how breach of a contract in any civil transaction would be gauged. However, this is not as fair as it sounds. One of the primary reasons behind the success of commercial surrogacy is the underlying cause of poverty that forces women to rent out their womb for some thousands or lakhs of rupees. Since the practise was largely regulated, it is not even certain that all surrogate mothers were given legal aid and were protected by legal contracts in case of such abandonments.
Though, efforts are indeed taken in this regard by the State today and acts such as abandoning or exploiting children born through Assisted Reproductive Technology (ART); sale, purchase, or trade of embryos; exploiting the couple or donor in any form; and transfer of an embryo into a male or an animal find their place in the Surrogacy Act, 2019 as offences. Such offences may attract a fine of Rs 5 to 10 lakhs for the first time. Subsequent offences are punishable with imprisonment for 8 to 12 years and a fine of Rs 10 to 20 lakh.
Right of the surrogate over the child years after raising the surrogate child
As a matter of law, the surrogate mother is given no legal rights over the child and thus amidst the various rights given to the surrogate mother, right to keep the baby is not one of them. Thus, the legal rights over the child lie with the intending couple and all aspects of parentage, inheritance would be applicable keeping in mind the intending parents only.[i] Now, it is interesting to note that if the intending parents have the right over the child, all such obligations as are applicable on other parent towards the child would be similarly applicable to the intending parents also. Thus, in a scenario when the intending parents abandon the child and contravenes the surrogacy agreement, penal provisions in case of abandonment of child, for instance, section 317 of the Indian Penal Code should be applicable. Albeit, with the Surrogacy (Regulation) Act, 2021, abandoning the child has itself become an offence under section 7 and section 38 of the Act and now no person can abandon the child born through the procedure of surrogacy ‘for any reason whatsoever’. If done so, the act is punishable with imprisonment which may extend to ten years and with fine which may extend to ten lakh rupees.
In case of such surrogate orphans, if at all, the surrogate mother wishes to keep the baby, she would have to legally adopt the child by going through the tedious procedure of adoption or be ready to give up the child for adoption by another set of parents. In absence of any legal adoption, the care and custody of child by the surrogate mother is even at the risk of being called as an “illegal custody” since she holds no relation to the child once the delivery takes up, neither as a guardian nor as a parent.
Concluding remarks ......
Even though the movie showcased the scenario before the advent of the Surrogacy Act of 2021, it is important to clear some facts straight. No matter how dramatic and emotional the relationship between Mimi (Main Protagonist) and the surrogate child, Raj appears; the intending parents would continue to hold the legal rights over the parentage of the child until and unless it can be asserted that the child was legally adopted post the abandonment. They can be penalised for their act of abandonment but this cannot invalidate their lawful parentage. It is true though that the court may in the light of certain peculiar facts give a contrary opinion with respect to care and custody in exercise of its interpretation of the law, and the underlying ‘welfare and happiness of the child’. But own thing is for sure that with the advent of Surrogacy Act, a lot of discrepancies and uncertainties in the framework of surrogacy have been put to an end.
 Written by Ishita Goyal, Student of Symbiosis International University, Pune.
 Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518.
 The 18th Law Commission Report, Law Commission of India (August 2009). Accessed at https://lawcommissionofindia.nic.in/reports/report228.pdf
 The Surrogacy (regulation) Act, No. 47 of 2021, India Code (2021), §2(b); See also, what is Altruistic Surrogacy (2018), accessed at https://www.thehindu.com/opinion/op-ed/what-is-altruistic-surrogacy/article62110491.ece
 Aussie Couple Abandoned Surrogate Baby in India, The Times of India (2014), Accessed at <http://timesofindia.indiatimes.com/articleshow/44766805.cms?
 The Surrogacy (regulation) Act, No. 47 of 2021, India Code (2021), §8.
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