Surrogacy in India: Surrogacy Act, Eligibility, Discriminations, Etc.

Surrogacy in India

Surrogacy in India has evolved significantly over the years, transitioning from a largely unregulated practice to one governed by specific legal frameworks intended to protect the rights and welfare of all parties involved. This evolution reflects broader changes in societal attitudes towards assisted reproductive technologies (ART) and the complexities surrounding parenthood, ethical considerations, and the rights of surrogate mothers and intended parents. The introduction of the Surrogacy (Regulation) Act, 2021, marks a pivotal moment in this journey, aiming to ensure ethical practices in surrogacy arrangements while addressing the concerns related to the exploitation of surrogate mothers, child rights, and the commercialization of surrogacy.

Historically, India emerged as a prominent destination for surrogacy services due to the relatively lower costs and the availability of women willing to become surrogate mothers. This led to the growth of a booming surrogacy industry catering to both domestic and international intended parents. However, concerns over ethical issues, such as the exploitation of surrogate mothers, lack of legal protections, and the commercial nature of transactions, prompted the Indian government to intervene and regulate the industry.

The Surrogacy (Regulation) Act, 2021, represents a significant shift towards a more regulated and ethical approach to surrogacy in India. It prohibits commercial surrogacy, allowing only altruistic surrogacy arrangements, and sets strict eligibility criteria for both surrogate mothers and intending parents. The Act aims to protect surrogate mothers from exploitation, ensure the rights of the child born through surrogacy, and establish a legal framework that facilitates ethical and responsible surrogacy practices.

Despite these regulations, surrogacy in India remains a complex issue, interwoven with debates over reproductive rights, the definition of family, ethical considerations in ART, and the socio-economic dimensions of surrogacy arrangements. As the legal and societal landscapes continue to evolve, surrogacy in India presents an ongoing challenge to balance the interests and rights of all parties involved, within an ethical and legal framework that respects the dignity and autonomy of surrogate mothers while fulfilling the aspirations of intending parents

What is Surrogacy?

Surrogacy is a method of assisted reproduction where a woman (the surrogate mother) agrees to carry and give birth to a child for another person or couple (the intended parent(s)). After the birth, the surrogate mother relinquishes any parental rights to the child, allowing the intended parent(s) to become the legal parent(s). Surrogacy is often considered by individuals and couples who are unable to conceive a child naturally or through other assisted reproductive technologies (ART) due to various reasons, including infertility, medical conditions that make pregnancy or delivery risky, and same-sex couples wishing to have a biological connection to their child.

There are two main types of surrogacy:

Traditional Surrogacy: In this arrangement, the surrogate mother is also the biological mother of the child. Her egg is fertilized, typically through artificial insemination, using sperm from the intended father or a sperm donor. Because the surrogate's egg is used, she has a genetic link to the child. Traditional surrogacy is less common and legally complex due to the biological connection between the surrogate and the child.

Gestational Surrogacy: This is the most common form of surrogacy today. In gestational surrogacy, an embryo created via in vitro fertilization (IVF) using the egg and sperm of the intended parents or donors is implanted into the surrogate's uterus. The surrogate has no genetic link to the child she carries. Gestational surrogacy is preferred by many because it allows at least one of the intended parents to have a biological connection to the child and reduces the legal and emotional challenges associated with the surrogate's biological connection to the child.

Surrogacy involves legal, ethical, and emotional considerations and is regulated differently across the world. Some countries have comprehensive legal frameworks governing surrogacy, while others may restrict or entirely prohibit it. It's crucial for intended parents and surrogate mothers to understand the laws and regulations in their jurisdiction, and to typically engage in a legal agreement that outlines the rights, responsibilities, and expectations of all parties involved.

Surrogacy (Regulation) Act, 2021 section and provisions 

The Surrogacy (Regulation) Act, 2021, in India establishes a regulatory framework for carrying out surrogacy procedures, prohibiting commercial surrogacy to protect surrogate mothers from exploitation, and allowing altruistic surrogacy under strict conditions. This comprehensive piece of legislation includes various sections and provisions to ensure ethical practices in surrogacy. Below is an overview of some key sections and provisions contained in the Act:

Chapter III: Rules for Surrogacy

From the time this law starts, the following rules apply for surrogacy:

Where Surrogacy Can Happen: Surrogacy can only be done in specific places, like surrogacy clinics, and these places must meet certain conditions before they can do surrogacy procedures.

Reasons for Surrogacy: Surrogacy can only be done for specific reasons:

• It is only allowed if a couple needs it for medical reasons. This means a doctor has determined that they need help from a surrogate to have a baby.

Conditions for Allowing Surrogacy

Surrogacy is allowed only if:

It's for altruistic reasons: This means the surrogate mother is not paid beyond medical expenses and other reasonable costs.

Not for profit: No one can make money from surrogacy. It's not allowed to be a business.

Ethically sound: The purpose isn't to create children for sale, prostitution, or any kind of exploitation.

Based on medical need: There might be other medical conditions or diseases that qualify for surrogacy, as decided by a specific board.

Requirements Before Starting Surrogacy

Before any surrogacy process can begin:

Certificate of Essentiality: The couple wanting a child through surrogacy needs a special certificate. This confirms they meet all necessary conditions, including a medical need for surrogacy. This need is verified by a District Medical Board, which provides a certificate stating that surrogacy is medically necessary for one or both people in the couple or for the intending woman.

In simple terms, surrogacy is strictly regulated. It's only allowed when it's not for profit, it's for genuine, altruistic reasons, and there's a proven medical need for it. A couple or intending woman must obtain a certificate proving their eligibility and medical necessity before proceeding with surrogacy.

Conditions for Being a Surrogate Mother

To be a surrogate mother, a woman must:

• Be an ever-married woman with at least one child of her own.
• Be between the ages of 25 to 35 years at the time of the embryo implantation.

In simple terms, a woman can only be a surrogate mother if she has been married before, has her own child, and is between 25 to 35 years old when the surrogacy process starts.

Conditions for Surrogacy Procedures

Surrogate Mother's Agreement: A woman who agrees to be a surrogate mother must willingly participate in the surrogacy process, as outlined in the law. The couple or single intending parent must introduce a willing surrogate to the appropriate authorities.

Use of Surrogate's Own Gametes Prohibited: A surrogate mother cannot use her own eggs for the surrogacy. This means she can only carry the baby but cannot be the biological mother.

Limitation on Surrogacy: A woman is allowed to be a surrogate mother only once in her lifetime. However, how many attempts at surrogacy can be made with her will be specified in more detail by the authorities.

Health Certificates: The surrogate must have a certificate proving she is physically and mentally fit for surrogacy, issued by a registered medical practitioner.

Conditions for the Intending Couple:

Marital and Age Requirements: The couple must be legally married. The woman should be between 23 to 50 years old, and the man should be between 26 to 55 years old at the time of applying for surrogacy.

Child Policy: The couple should not have any surviving biological, adopted, or surrogate children. Exceptions are made for couples with a child who is either physically or mentally challenged or suffering from a condition with no cure, upon approval by the appropriate authority and with a medical certificate from a District Medical Board.

In summary, these rules ensure that the surrogate mother is healthy, willing, and understands the implications of surrogacy, while also setting clear guidelines for the intending parents regarding their eligibility for surrogacy.

Prohibitions and Consent for Surrogacy

Restriction on Encouraging Surrogacy: No one, including relatives, spouses, or the intended parents, is allowed to promote or encourage surrogacy except for the specific reasons outlined previously.

Informed Consent Required: Before starting surrogacy procedures, it's mandatory to:

Fully explain all possible side effects to the surrogate mother.

Obtain her written consent, in a language she understands, agreeing to the procedure.

Surrogate Mother's Right to Withdraw: The surrogate mother has the right to withdraw her consent and decide not to proceed with the surrogacy before the embryo is implanted in her womb

Child's Rights and Prohibitions on Abandonment

No Abandonment of Surrogate Child: The intended parents cannot abandon the surrogate child for any reason, including genetic issues, sex of the child, or if more than one baby is conceived.

Rights of the Surrogate Child: A child born through surrogacy is considered the biological child of the intended parents and has all the rights and privileges of a natural child according to the law.

In simple terms, these rules ensure that surrogate mothers are fully informed and voluntarily consent to the process, and they protect the rights of the children born through surrogacy, guaranteeing they cannot be abandoned and are entitled to the same rights as any biological children of the intended parents.

Source: Surrogacy Regulation Act, 2021

Punishments

Section 39: Punishment for Breaking the Law

• If any doctor, specialist, or anyone working at a surrogacy clinic breaks any rule of this law (except for the rules mentioned in section 38), they could go to jail for up to 5 years and might also have to pay a fine up to 10 lakh rupees.
• If they keep breaking the law, their medical license can be suspended for 5 years.

Section 40: Punishment for Not Following Altruistic Surrogacy Rules

If a couple or a woman tries to do surrogacy in a way that makes money (not altruistic) or goes against the rules, they could face a jail time up to 5 years and a fine up to 5 lakh rupees for the first time. If they do it again, the punishment could go up to 10 years in jail and a fine up to 10 lakh rupees.

Section 41: Penalty for Other Violations

If someone breaks any part of this law or its rules, and if there's no specific punishment already mentioned for it, they could be jailed for up to 3 years and fined up to 5 lakh rupees. If they continue to break the law, they can be fined an additional 10,000 rupees for every day they keep doing it after being first convicted.

In summary, this part of the law talks about the punishments for people or clinics that do not follow the rules of surrogacy. This includes fines and possible jail time, depending on the violation and whether it's a first-time or repeated offense.

Source: Surrogacy Regulation Act, 2021

Discriminations of Surrogacy

In the context of surrogacy in Indian law, particularly with the implementation of the Surrogacy (Regulation) Act, 2021, certain aspects can be seen as potentially discriminatory with respect to reproductive rights. These discriminations arise from the restrictions the Act places on who can access surrogacy services in India. 

Marital Status Discrimination: The Surrogacy (Regulation) Act, 2021, permits only married Indian couples to avail of surrogacy. This provision excludes unmarried individuals, those in live-in relationships, and same-sex couples from accessing surrogacy services, which can be seen as discriminatory against people based on their marital status and sexual orientation.

Discrimination Based on Nationality: The Act prohibits foreigners, including Overseas Citizens of India (OCIs), Persons of Indian Origin (PIOs), and Non-Resident Indians (NRIs), from commissioning surrogacy in India. This creates a distinction based on nationality, limiting the reproductive rights of Indian citizens living abroad or those of Indian origin who do not hold Indian citizenship.

Discrimination Against Single Parents and LGBTQ+ Individuals: By allowing only heterosexual married couples to use surrogacy, the law discriminates against single individuals and LGBTQ+ people who wish to become parents through surrogacy. This limitation restricts their reproductive rights and their ability to start families through surrogacy.

Discrimination Based on Infertility Criteria: The Act requires the intending couple to have a certificate of proven infertility to qualify for surrogacy. This can be discriminatory against individuals or couples who may not meet the stringent definitions of infertility but have other medical or physical conditions that prevent them from conceiving or carrying a pregnancy to term.

Age and Other Restrictions for Surrogate Mothers: The law also places specific restrictions on who can become a surrogate mother, including age limitations and the requirement that the surrogate must have been married and have a child of her own. These conditions can be seen as discriminatory by limiting women's autonomy over their bodies and their right to make reproductive choices.

While the Surrogacy (Regulation) Act, 2021, aims to protect surrogate mothers from exploitation and to ensure the ethical practice of surrogacy in India, the restrictions it imposes have raised concerns about discrimination and the infringement of reproductive rights for various groups. The debate around these issues highlights the need for a balance between ethical concerns, protection of all parties involved in surrogacy, and the broader reproductive rights of individuals and couples desiring to become parents through surrogacy.

What is the Role of Fatherhood?

In the context of surrogacy in Indian law, particularly under the Surrogacy (Regulation) Act, 2021, the role of fatherhood is integrated within the legal framework that governs surrogacy arrangements. The Act, which aims to regulate surrogacy practices in India, prohibits commercial surrogacy but allows altruistic surrogacy for intending couples under stringent conditions.

Intending Father's Eligibility: The law specifies the conditions under which an intending father can opt for surrogacy. The intending parents must be Indian citizens who are married and have been diagnosed with infertility. The Act also makes provisions for a widow or a divorced woman but does not explicitly mention single men. Thus, the role of the father, in a legal sense, starts with meeting the eligibility criteria to become an intending parent through surrogacy.

Legal Parenthood: The Surrogacy (Regulation) Act, 2021, ensures that the child born through surrogacy is deemed to be the biological child of the intending parents. This means that the intending father (along with the intending mother) is legally recognized as the parent of the child from birth, assuming all parental rights and responsibilities.

Parental Rights and Obligations: The intending father, like the intending mother, is required to fulfill certain obligations and is endowed with specific rights concerning the surrogate child. This includes taking custody of the child immediately after birth and ensuring the child's well-being, education, and upbringing.

Written Consent and Agreement: The Act mandates that the intending parents and the surrogate mother enter into a legally enforceable surrogacy agreement. The intending father, as one of the parties to this agreement, must provide informed consent for the surrogacy arrangement, clearly understanding and agreeing to his role, rights, and responsibilities towards the surrogate child and the surrogate mother.

Welfare of the Surrogate Child: The law places the utmost importance on the welfare of the child born through surrogacy. The intending father, alongside the intending mother, is responsible for ensuring that the child's rights are protected, and their welfare is prioritized.

In summary, in the context of surrogacy under Indian law, the role of fatherhood encompasses meeting eligibility criteria, participating in the legal process of surrogacy arrangements, assuming legal parenthood of the surrogate child, and fulfilling all parental rights and responsibilities to ensure the welfare of the child. It's important to note that the legal framework surrounding surrogacy in India is designed to safeguard the interests of all parties involved, particularly the surrogate child, and to prevent any form of exploitation.