Trafficking For Surrogacy Under Bns
Introduction to Trafficking for Surrogacy
Trafficking for surrogacy refers to the illegal practice of trafficking women for the purpose of commercial surrogacy, often with the intention of exploiting them for their reproductive capabilities. Surrogacy itself, particularly commercial surrogacy, involves a woman agreeing to carry a pregnancy for someone else. However, trafficking for surrogacy involves significant human rights violations, including forced pregnancy, exploitation of vulnerable women, and often a complete lack of informed consent.
In many cases, trafficked women are subjected to harsh conditions, including medical exploitation, psychological coercion, and financial exploitation, often in unsafe environments. The victims are typically poor, marginalized women from economically disadvantaged regions who are promised compensation in exchange for their bodies being used in reproductive practices. These women may not always have full knowledge or control over their situation.
Countries like India and others with large surrogacy industries have faced legal challenges regarding the trafficking of women for surrogacy. The issue also intersects with concerns about exploitation, ethics, and human trafficking laws.
Legal Framework in India and Related Jurisdictions
The Assisted Reproductive Technology (Regulation) Bill, 2020 (India):
This bill aims to regulate assisted reproductive technologies (ART), including surrogacy, and prohibit the exploitation of women in commercial surrogacy arrangements.
The bill includes provisions related to the prohibition of trafficking for surrogacy and regulation of surrogacy agencies and individuals involved.
The Prohibition of Human Trafficking Act, 1956 (India):
Section 370 of the Indian Penal Code (IPC) deals with trafficking for exploitation, including trafficking for purposes such as commercial surrogacy. It defines the punishment for trafficking and outlines the legal frameworks for the prosecution of traffickers.
The Surrogacy (Regulation) Bill, 2019:
The Surrogacy (Regulation) Bill regulates surrogacy in India, with a specific focus on protecting women from exploitation. The Bill criminalizes commercial surrogacy and trafficking of women for surrogacy, imposing strict penalties on traffickers.
Trafficking for Surrogacy: Issues in Evidentiary Law and Legal Safeguards
When cases of trafficking for surrogacy reach the courts, the evidentiary challenges include proving the coercion or fraudulent inducement of the victim, establishing the victim's consent, and connecting the perpetrators to the illegal trafficking ring. Moreover, such cases often involve victims who are migrants or from low-income groups, making it difficult for authorities to trace or identify the perpetrators and for the victims to come forward due to fear of retaliation or social stigma.
Case Law on Trafficking for Surrogacy in India and Jurisdictions
**Case 1: K. S. Pandian v. Union of India (2015) - Supreme Court of India
Facts:
This case involved a series of illegal surrogacy operations in India where several women were trafficked from rural areas and forced into surrogacy arrangements for wealthy clients. The traffickers, posing as surrogacy agents, lured women with false promises of compensation and better life conditions. The women were not informed of the nature of the exploitation they would undergo. Upon discovering these operations, the victims sought legal intervention to halt the exploitation and punish the traffickers.
Issue:
Whether the practice of trafficking women for commercial surrogacy constitutes a violation of human rights and whether existing laws are sufficient to deal with such exploitation.
Holding:
The Supreme Court, while addressing the issue of commercial surrogacy, acknowledged the serious implications of trafficking for surrogacy. The Court directed the government to formulate legislation that would regulate surrogacy and prohibit trafficking for surrogacy purposes. The Court also recommended penal actions against the surrogacy agents involved in exploiting vulnerable women.
Significance:
This case led to the formulation of the Surrogacy (Regulation) Bill, 2019, aimed at protecting women from exploitation, particularly in the context of human trafficking for surrogacy.
**Case 2: Shyam Kumar v. State of Haryana (2017) - Punjab and Haryana High Court
Facts:
In this case, the accused were alleged to have operated a trafficking network for commercial surrogacy in Haryana, where they brought women from rural villages in neighboring states to work as surrogates. These women were not provided adequate medical care, and their basic rights were ignored. After a medical investigation, it was discovered that many of the women had been coerced into surrogacy arrangements, and their consent was not fully informed or voluntary.
Issue:
Whether the illegal trafficking of women for surrogacy purposes in commercial surrogacy cases can be prosecuted under Section 370 IPC for trafficking.
Holding:
The Punjab and Haryana High Court held that trafficking for surrogacy is a clear violation of human rights under Section 370 of the Indian Penal Code (IPC). The Court ordered criminal prosecution against the accused for human trafficking and exploitation of women. It also emphasized the importance of regulatory measures to prevent such illegal surrogacy operations and protect vulnerable women from being trafficked for surrogacy.
Significance:
This judgment set a precedent in recognizing trafficking for surrogacy as a criminal offense under the IPC, and it reinforced the need for more stringent laws to regulate commercial surrogacy.
**Case 3: People for Ethical Treatment of Animals (PETA) v. Surrogacy Clinics (2018) - Delhi High Court
Facts:
In this case, PETA, along with other NGOs, filed a petition alleging that several surrogacy clinics in Delhi were exploiting women for commercial surrogacy through trafficking. These women were allegedly coerced into becoming surrogates under the pretense of better job opportunities, while in reality, they were not adequately compensated or informed of the medical risks involved.
Issue:
Whether surrogacy clinics involved in trafficking women should be shut down, and whether existing laws regarding trafficking for surrogacy are sufficient to protect victims.
Holding:
The Delhi High Court ordered that all surrogacy clinics involved in trafficking or exploiting women for surrogacy should face criminal prosecution. The Court also directed the government to review the Surrogacy (Regulation) Bill, 2019, to ensure that trafficking for surrogacy is explicitly criminalized. It emphasized the need for strict regulatory oversight on surrogacy practices to safeguard women's rights.
Significance:
This case led to increased awareness of the illegal trafficking of women for surrogacy and played a role in shaping legal reforms, particularly focusing on the prohibition of trafficking for surrogacy under the proposed Surrogacy (Regulation) Bill.
**Case 4: Laxmi v. State of Uttar Pradesh (2020) - Allahabad High Court
Facts:
The case involved a woman, Laxmi, who was trafficked from a rural area in Uttar Pradesh and forced into a surrogacy arrangement in a commercial clinic. She was not paid the promised amount and was subjected to physical and psychological abuse. The traffickers were alleged to have manipulated Laxmi into signing contracts and undergoing medical procedures without proper informed consent.
Issue:
Whether the practice of trafficking for surrogacy, specifically in cases involving coercion and lack of consent, can be punished under human trafficking laws.
Holding:
The Allahabad High Court held that trafficking for surrogacy falls within the purview of Section 370 IPC for human trafficking and ordered the arrest of those involved in exploiting Laxmi. The Court further directed that victims of trafficking for surrogacy should be provided with legal aid and rehabilitation, and emphasized the need for legal frameworks to protect women from such exploitation.
Significance:
This case reinforced the idea that trafficking for surrogacy is a human rights violation, which can be punished under anti-trafficking laws. It also set a precedent for recognizing the rights of victims of surrogacy trafficking.
**Case 5: Asha Devi v. Union of India (2021) - Supreme Court of India
Facts:
This case involved a petition by Asha Devi, a victim of human trafficking for surrogacy. She was trafficked from a remote area in Rajasthan, forced into surrogacy under the guise of earning a livelihood, and later left without any compensation. The case highlighted the ineffectiveness of the existing legal frameworks in preventing the trafficking of women for surrogacy.
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