Legal check list for surrogacy in India

January 6, 2024

This article has been written by Ms, Neha Singh, a Third-year student of Lloyd Law College, Greater Noida.

Abstract: The delicate fusion of science, legality, and the deep human yearning for parenting is surrogacy. This captivating story has been published in many hues all over the world, with each nation debating the complicated ethical and legal ramifications of it.

India, which was formerly a hub for commercial surrogacy, is situated at a fascinating crossroads. Despite a strong cultural appreciation for mothers, the nation is currently mired in a web of regulations designed to change the surrogacy industry.

Introduction: Every parent pair wishes to become parents, but occasionally unanticipated events prevent this from happening. causes such as male infertility, uterine disorders of any kind, etc. These parents always have the option of surrogacy as an alternative. In a surrogacy arrangement, a surrogate mother bears the intended parents’ unborn child with their consent and, following the child’s birth, returns custody of the child to the intended parents in accordance with the terms of the agreement. Any parent can use this strategy to fulfil their goals for their child.

Types of Surrogacies in India: There are 2 types of surrogacies are commonly practiced in India:

Traditional Surrogacy:

The intended father or a sperm donor artificially inseminates the surrogate mother in a traditional surrogacy. Since the surrogate mother uses her own eggs, she is the child’s biological mother. Thus, the intended father or sperm donor, as well as the surrogate mother, share genetics with the child. Nonetheless, the surrogate mother must relinquish her parental rights and transfer the kid to the intended parents.

Gestational Surrogacy:

In IVF, or in vitro fertilization, is the method used to generate the embryo in gestational surrogacy. The intended couple’s eggs and sperm, or those of a donor, are utilized in the IVF procedure. The embryo is placed inside the surrogate mother’s uterus once it has developed. In this instance, the biological mother is not the surrogate mother. Genetically, the child is related to the donors of the eggs and sperm.

There are sorts of surrogacy based on how much is paid to the surrogate.

Compensated/commercial surrogacy: Altruistic surrogacy is not included in the term “commercial surrogacy,” which includes other types of surrogacy agreements. Put otherwise, any of the previously discussed surrogacy agreements fall under the category of commercial surrogacy if the surrogate mother receives payment in addition to reimbursement for her medical expenses.
Altruistic surrogacy: In both traditional and gestational surrogacy, altruistic surrogacy involves surrogate moms who volunteer their time and offer no payment for their risk, labour, or time. In some countries, this is the only sort of surrogacy that is legally allowed. With this approach, a woman voluntarily offers herself as a surrogate without receiving payment. Altruistic surrogates, as opposed to most surrogacy agreement typically help a person they know directly, like a close friend or relative, and they might only be paid for the medical costs they incur during the pregnancy.
Independent surrogacy: Women who willingly volunteer to be surrogate parents without the assistance of a surrogacy agency are considered independent surrogates. However, because there aren’t enough safeguards and screenings in place, this kind of surrogacy agreement is regarded as one of the riskiest.

Laws Governing Surrogacy in India :

The Indian Council of Medical Research Guidelines,2005 : These guidelines were created to provide rules for ART clinics (Assisted Reproductive Technology) that provide surrogacy services in India. The guidelines outlined the proper practices and criteria that fertility clinics should adhere to when performing ART procedures. We shall go into great detail about these instructions in the section that follows. It’s crucial to remember that these recommendations are only advisory in nature and have no legal force behind them; they were developed prior to the ART Bill’s implementation.
The Assisted Reproductive Technology Act, 2021: Currently, only married Indian citizens are permitted to use surrogacy in India. However, the Assisted Reproductive Technology (ART) Act expands this definition to cover all married couples, cohabiting partners, women who are single, and foreign nationals. According to the Bill, assisted reproductive technologies (ART) include any method used to help a woman become pregnant, including transferring sperm outside of the human body and inserting an embryo into her reproductive system.

Regulatory boards are also established by the Act to supervise its execution.

National Board : The National Board’s responsibilities include providing policy advice to the government, prescribing minimum qualifications for doctors and nurses working in clinics and banks, and keeping an eye on the Bill’s execution and making necessary revision recommendations.
National Registry: A thorough database of all clinics and banks in the country, along with information on the services they offer and their results, will be kept up to date by the National Registry. The National Board will be informed of this information in order to guide the formulation of regulations.
Registration Authority: A woman from a well-known women’s organization, a law officer from the department of law, a respectable medical professional, a vice-chairperson from the health department (ranking above a joint secretary), and a chairperson from the health department will make up the Registration Authority.

The Registration Authority will be in charge of ART centre registration, standards enforcement, oversight of law implementation, handling of complaints and infractions, legal action against ART misuse, investigation initiation, and advice to the National and State Boards regarding rule modifications to account for changes in society and technology.

The Surrogacy (Regulation) Act,2021:

Professionals employed by surrogacy clinics must fulfil the requirements outlined in the bill in order for those clinics to be registered under the Act. After a competent authority is appointed, facilities that perform surrogacy treatments must register within 60 days. Every three years, this registration has to be renewed. Whether carried out by a surrogacy clinic, gynaecologist, embryologist, or any other medical expert, commercial surrogacy is outright prohibited under the Act. The 2021 Act permits surrogacy only for charitable purposes. In accordance with Indian law, the intending couple—that is, the couple hoping to become parents—must be lawfully wed. The male partner’s age range is 26–55 years, while the female partner’s is 25–50 years. They should also not be parents to any other adopted or naturally born children, even if they were born via surrogacy.

The surrogate mother needs to be in the 35–45 age range. One surrogacy is all that a lady is allowed to do in her lifetime. An intending couple with a medical necessity for surrogacy must get a “Certificate of Essentiality/Infertility” from the National/State Assisted Reproductive Technology and Surrogacy Board. All known adverse effects and potential dangers of the surgery must be disclosed to the surrogate mother. Additionally, she needs to give written, informed consent in a language that she can understand.

In accordance with the Act, facilities offering surrogacy services will be registered through a National Assisted Reproductive Technology registry. The Act provides that a couple found guilty of using commercial surrogacy may be subject to a five-year jail sentence and a fine of up to 50,000 rupees. If the same crime is done more than once, the fine and jail terms could be increased to one lakh rupees and ten years, respectively. The maximum punishment for any person, group, or clinic that uses surrogate mothers or children born through surrogacy is ten years in prison and a fine of ten lakh rupees.

Lacunae in the Surrogacy( Regulation) Act, 2021:

The intended couple, who must be lawfully wed in India and present a certificate of infertility, and the intended lady, who must be between the ages of 35 and 45, who is either a widow or a divorcee, are the only two categories to which the Act applies. The married pair’s age range must be between 25 and 50 years old for women and 26 to 55 years old for men.

However, this strategy ignores certain groups within society, such as single women who want to have children but find it difficult to conceive. Though the law appears to be modern, it actually perpetuates old stigmas associated with unmarried delivery. The Act limits the definition of a “couple” to those who are lawfully married, further excluding both men and women from live-in relationships. It also disregards the possibility that a couple’s chronic illness could be passed on to their children. Although the National Assisted Reproductive Technology and Surrogacy Board has established certain conditions under which surrogacy is permitted under Section 4(ii)(e), the requirements are still not clearly stated and are primarily up to the Board’s judgment.

Eligibility:

Intended Parents:

A partner in a couple hoping to have parents needs to be experiencing “verified infertility. “A couple who, in spite of unprotected sexual activity, is unable to conceive naturally or who has a medically proven disease that prevents conception.

Those pairs who are facing certain medical problems, such as an absentee or malformed uterus, permanent damage or destruction of the uterus, or having had a hysterectomy as a result of illnesses like cancer, fibroids, etc.

Couples for whom surrogacy remains their only viable means of conceiving a biological child as determined by medical professionals. When a prospective couple meets the 2020 bill’s condition precedent and needs gestational surrogacy for a medical reason. A 35- to 45-year-old Indian lady, widowed or divorced, who wants to become a surrogate.

Surrogate Mother: A married woman who is already a mother. she must be between the ages of 25 and 35; and she must get a certificate from a licensed medical professional attesting to her physical and mental suitability as a surrogate. A woman can only be a surrogate mother once in her lifetime. She is not allowed to contribute her reproductive cells for surrogacy. She is eligible for 36 months of insurance coverage to cover any difficulties that may emerge after delivery.

Reports of the Selected Committee:

On November 21, 2019, a Select Committee comprising twenty-three Rajya Sabha members was established with the task of investigating The Surrogacy (Regulation Bill), 2019. The committee’s chairman was Shri Bhupender Yadav. The Committee met with intended couples, doctors, surrogate moms, and surrogate children during its visits to several surrogacy clinics. During its nine meetings, the Select Committee discussed the Bill clause by clause, solicited feedback from interested parties, and heard testimony from the National Human Rights Commission, National Commission for Protection of Child Rights, United Nations Population Fund, PRS Legislative Research, and other organizations. During its meetings, the Committee addressed a number of topics, including the issue of single women, divorcees, and widows; the provision allowing a close relative to serve as a surrogate mother; the length of insurance coverage; and the subject of altruistic or compensated surrogacy. On February 5, 2020, the Select Committee’s report was released. The Select Committee’s report on the Surrogacy (Regulation) Bill, 2020 included the following amendments:

It eliminated the definition of infertility found in section 2(p), which stated that it was impossible to conceive after five years of unprotected sex. Additionally, the meaning of “intending couple” was modified. Intentional couples have a medical need that requires gestational surrogacy and want to use surrogacy to become parents. To be eligible for surrogacy, the intended pair must be married, even under this bill.

An Indian woman who is between the ages of 35 and 45 and who plans to use surrogacy as a means of obtaining a divorce or widowhood is included in the newly inserted paragraph regarding intending women. Currently, all that is required in lieu of a certificate of essentiality is a document of medical indication supporting one or both partners that gestational surrogacy is necessary. The surrogate mother’s insurance coverage has been extended from 16 to 36 months. Currently, a willing woman will serve as a surrogate mother in place of a close relative. The intended couple or intended lady will take the willing woman who consents to be a surrogate mother to the proper authority.

Conclusion:

The Surrogacy (Regulation Bill), 2020’s proposed surrogacy laws are desperately needed. It outlaws commercial surrogacy, which is crucial as India has developed into a hotspot for surrogacy, where surrogate moms have been taken advantage of and surrogate children have been left behind. The surrogacy clinics were not operating under any ethical guidelines. Hence, it is anticipated that the outlawing of commercial surrogacy will put an end to the immoral surrogacy clinic operations. Additionally, the measure does away with the crucial provision regarding close relatives, which would have put pressure on the relative to act as a surrogate mother. Additionally, the trend toward nuclear families is growing, which would have made finding a close relative willing to take on the role of surrogate mother extremely challenging. It also makes surrogacy available to divorced and bereaved women, which is a fantastic addition that would fulfil the wishes of many women. The Bill has to become law as soon as possible and should be given top priority. This will have a profound impact on the surrogacy landscape in our nation.

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