December 29, 2023

An overview of Surrogacy Laws in India

This Article has been written by Ms. Shilpi Sharma, a 2nd year student of Lloyd Law College, Greater Noida, Uttar Pradesh.

 

In general, surrogacy refers to a formal agreement between intended parents who are prepared to have a child and a woman who is known as the surrogate. This arrangement is now typical and accepted in modern society. If the mother or the woman who wants a child is unable to conceive for any number of personal or medical reasons, many choose surrogacy. A mother’s life is probably in danger when she has a child. For parents or individuals who want a child but are unable to have one, surrogacy is a godsend, which emphasizes the significance of having appropriate laws on this issue. In India, gestational surrogacy is a legal form of surrogacy.

 

In India, there are two kinds of surrogacy that are used. They are as follows:

 

[1] Conventional definition of surrogacy

[2] Pregnancy-Based Surrogacy

 

The surrogate mother’s eggs are traditionally used. Because the surrogate mother’s egg is utilized in this case, egg donation is not required. The standard surrogacy procedure involves intrauterine insemination. With this easy procedure, the surrogate doesn’t have to undergo a lot of reproductive treatments. Since her eggs are never used, the intended mother is not required to receive any medical care or go through the egg retrieval procedure.

 

For this kind, the embryo that the surrogate mother would bear would need to be created by an egg donor. The process of in vitro fertilization is applied here. The intended mother’s eggs and the father’s sperm, which the surrogate subsequently carries, are used to make the embryo. 

 

This kind of surrogacy is typically preferred by surrogates because there is no emotional attachment; that is, the woman is not the child’s biological mother.

This kind of surrogacy is more expensive because it requires separate fertility treatments and egg retrievals from both women.

 

While surrogacy can help single parents, who wish to start a family or parents who are unable to conceive, it can also result in the kid and the woman who is conceiving being exploited. The Indian government forbids commercial surrogacy for the following reasons.

The surrogate mother or the mother who gave birth to the kid receive inadequate treatment. This indicates that they frequently go unpaid even after the intended parents have the child and live in appalling conditions. The woman is then forced to pursue expensive and time-consuming legal action as well as other options. Her body is only getting acclimated to having the child, so when she is abandoned without pay, it causes emotional, physical, and financial suffering.

 

Additionally, there has been a rise in child trafficking as a result of surrogacy’s commercialization. Child traffickers could easily obtain a baby by frequently making no payment at all or very little.

There have also been instances where the child’s health is appallingly bad; for example, a youngster who is underweight risks long-term and short-term health problems. The monetization of infants as a result of surrogacy has created ethical challenges. It is well known for disrupting natural processes and severing the link between mothers and their offspring.

 

Apart from the legal challenges, surrogacy also has psychological effects. Legal and psychological concerns surrounding surrogacy have come up on a few times in India. In several cases, surrogacy exploitation has resulted in psychological harassment or threats against women. They are coerced into it or their choice to serve as a surrogate is not honoured.

Legal provisions relating to surrogacy in India

Following are some of the legal regulations that exist in India at the current time:

These guidelines were drafted to regulate the conduct of the Assisted Reproductive Technology clinics that provide surrogacy treatments in India. This guideline outlined how fertility clinics should employ Assisted Reproductive Technology (ART) operations or treatments. 

 

Although this was before the ART Bill, these Guidelines are solely advisory and are not legally binding. 

The Assisted Reproductive Technology Act, 2021

Indian nationals who are married to one another may use surrogacy. On the other hand, the Assisted Reproductive Technology Act (ART) is accessible to foreign nationals as well as married couples, live-in partners, and single women. This bill establishes a National Board, which will have the same authority as a civil court under the Code of Civil Procedure. Our nation’s health ministry reports that whilst there are over 40,000 clinics for ART, there are less than 1000 facilities for surrogacy.

 

In India, ART has turned into a popular medical tourism destination, and the number of clinics offering this therapy is rising daily. Pre-implantation genetic testing, intrauterine insemination, in-vitro fertilization, intracytoplasmic sperm injection, and gamete donation are all accessible.

 

There are currently no well-established ART practice clinics in India. ART banks and facilities are subject to oversight and regulation under a Bill passed by the Lok Sabha, despite ethical, legal, and medical concerns.

 

As per the Bill’s provisions, ART would encompass all the necessary techniques for attempting to conceive a woman. From managing sperm or oocytes outside of the human body to inserting the gamete or embryo into a woman’s reproductive system.

 

The Act identifies ART banks as those that would offer and supply the required goods. Both men and women over the legal marriage age but under the age of 55 would be eligible for these services.

Women over the legal marriage age but under the age of 50 would also be eligible.

 

NATIONAL BOARD 

This Board was established to offer recommendations and counsel to the government on a range of policy issues. This Board suggests the bare minimal requirements for the infrastructure labs and the hiring of medical professionals to staff clinics and banks. These would check to determine if the bill is being implemented correctly and make recommendations for future modifications.

 

NATIONAL REGISTRY 

 

It will have a single database that contains data on all clinics and banks in the nation, together with details on the kinds and kinds of services they provide and their results. The National Board will get the data from the register and utilize it to create rules and guidelines.

 

REGISTERATION AUTHORITY 

 

They would include a chairperson—who must be a health department officer with a higher rank than joint secretary—and other members. A woman who holds a prominent position in a women’s organization, a law officer from the department of law, a registered medical practitioner who holds a distinguished position in the field, and a vice-chairman of the health department who is ranked above the joint director.The duties of the registration authority will comprise: approving, delaying, or cancelling the registration of ART centres; monitoring compliance with regulations and standards; receiving complaints and feedback regarding any infractions of the law; pursuing legal action against the improper use of ART; opening investigations; and making recommendations to the National and State Boards regarding how to modify the regulations in light of societal and technological advancements.

 

The Surrogacy (Regulation) Act, 2021 

This Bill was passed in early December of 2021. Some of the key features of the Act include the following-

  • Commercial surrogacy is prohibited in any form by any surrogacy clinic, gynecologist, embryologist, or other medical practitioner. Only altruistic surrogacy is permissible under the 2021 Act.
  • The intending couple i.e., the couple wanting to have the baby must be legally married in line with the laws of India. The age of the female should be between 25-50 years and that of the male should be 26-55 years. Also, another important condition is that they shouldn’t be having any other adopted or conceived child through surrogacy or naturally.
  • The mother providing this service that is the surrogate mother needs to be between the age of 35-45 years. Any woman cannot be a surrogate mother more than once in her entire lifetime. 
  • The National/State Assisted Reproductive Technology and Surrogacy Board must provide a ‘Certificate of Essentiality/Infertility’ to an intended couple who has a medical need for surrogacy. 
  • The surrogate mother must be informed of all known negative effects and after-effects of the operation. In addition, the surrogate mother must provide written informed permission in the language she understands.
  • According to this Bill, there would be a Registry being installed called the National Assisted Reproductive Technology that would handle the registration of the clinic providing the surrogacy treatment. 
  • All the clinics providing the surrogacy treatment and facilities need to be registered under this Act and people practicing in those clinics need to qualify as per the criteria given in this bill.
  • Every facility that performs surrogacy treatments must apply for registration within sixty days after the competent authority’s appointment. Every three years, registration must be renewed. 

 

This Act stipulates that any couple who adopts a child through commercial surrogacy faces a five-year jail sentence and a fine of up to 50,000 rupees. Furthermore, if the same offence is committed more than once, a fine of up to one lakh rupees and a 10-year jail sentence will apply. 

 

If a person, group, or clinic is discovered to be involved in the exploitation of surrogate mothers or surrogate children, they could be sentenced to up to ten years in prison and fined Rs ten lakhs. 

 

DEMERITS OF COMMERCIAL SURROGACY BEING PROHOBITED 

 

In India, this kind of surrogacy became approved in 2002. However, the lady and the kid who were made to live in unsanitary conditions were exploited as a result of the lack of rules and regulatory organisations for the commercialization of this procedure. In 2009, the Law Commission of India came to the realisation that there was exploitation and determined that legislation pertaining to the same needed to be developed by the government for the benefit of the populace. According to the 228th report, a woman or wife in an Indian family is only valued when she is able to bear children, which serves as evidence of her husband’s strength and masculinity. 

 

Altruistic surrogacy refers to surrogates receiving no payment at all, save for any costs that may be mandated or incurred due to medical bills or insurance coverage. In contrast, commercial surrogacy occurs when the surrogate is paid for her services and receives insurance coverage, medical bills, other specified expenses, and “payment, reward, benefit, fees, remuneration, or monetary incentive in cash or kind” in addition to her services.

 

Although surrogacy needs to be regulated in light of exploitation, outright prohibiting it is not the answer. Regarding the intended parents’ citizenship and the surrogate mother’s compensation in order to avoid exploitation, the government ought to endeavour to oversee and control the legal system.

 

The fact that a human or baby’s life is being considered in this surrogacy contract presents another issue with the commercialization of this. Thus, the terms of a contract between the intended parent and the surrogate must be created with the best interests of the unborn child in mind and in a way that does not prejudice any party.

 

Since being a surrogate mother more than once is already prohibited under Section 4(iii)(b)(IV), commercial surrogacy cannot be used as a means of generating revenue or exploited in any way. If a surrogate is registered on a website that is open to all authorized surrogacy centres, appropriate safeguards can be implemented to prevent her from performing her duties.

 

Numerous nations, like South Africa, Russia, and Israel, have strict regulations regarding commercial surrogacy that are overseen by the government. Legalising commercial surrogacy would contribute to the shrinkage of the enormous black market for surrogacy, which puts both the surrogate and the kid in danger. Although there may be disagreements regarding a woman’s dignity when she receives compensation for her child, these issues have already been resolved in the Johnson v. Calvert case. 

 

Therefore, legalising commercial surrogacy is a good idea since, in addition to improving the standard of living for those who are financially disadvantaged, it also helps to prevent illicit surrogacy from happening because outlawing commercial surrogacy would lead to a complete prohibition rather than regulation and control.

 

In India, becoming a surrogate is not an easy task. There are a lot of legal requirements that must be met even before the process begins. In addition to this, surrogacy is stigmatized in society. This surgery is still primarily used by Indian celebrities, such as Priyanka Chopra, Nick Jonas, Shilpa Shetty, Raj, and many others. The general populace still does not employ these kinds of surgeries. Even though surrogacy is a fantastic opportunity for these couples to become parents, more people need to accept it. It is necessary to acknowledge a woman’s inability to give birth as fact.

 

Raising awareness in this area and getting some clarification on the relevant legislation are both necessary. It is necessary to reevaluate the prohibition on commercial surrogacy. Laws also need to be more accommodating to single parents and LGBT couples. Laws pertaining to the surrogate mother’s living circumstances and the child’s health must also be more stringent. For individuals or couples who wish to experience the joys of parenthood, surrogacy is a blessing.

 

REFERENCES :

 

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