The Surrogacy (Regulation) Act, 2021 is a law passed by the Indian Parliament to regulate surrogacy in the country. Surrogacy is a practice where a woman carries a pregnancy for another person or couple who cannot conceive or carry a pregnancy to term. The act aims to protect the rights of surrogate mothers and children born through surrogacy while preventing the commercialization and exploitation of the practice.
HISTORY OF SURROGACY IN INDIA:
India emerged as a popular destination for surrogacy tourism in the early 2000s due to its favourable legal, medical, and economic conditions. Commercial surrogacy was legalized in 2002, and over time, surrogacy became an option for various groups, including infertile couples, single individuals, same-sex couples, and those with medical reasons. While the industry had many successful cases, it also faced criticism for its lack of regulation, exploitation of surrogate mothers, and ethical concerns regarding the commodification of women’s bodies. The commercial surrogacy industry in India is estimated to be worth $400 million annually, with over 3,000 fertility clinics across the country.
SALIENT FEATURES OF THE ACT:
The Act provides for surrogacy (Regulation)in India. The main provisions of the Act
Definition of surrogacy: Section 2(zd) of The Act defines surrogacy as a practice where a woman carries a child for another person or couple, and agrees to hand over the child to them after birth.
Types of surrogacy allowed: Section 2(b) of The Act permits only altruistic surrogacy, where the surrogate mother receives no financial compensation except for medical expenses and insurance coverage. Commercial surrogacy is banned under the Act.
Eligibility criteria for intending parents: Section 4 prescribed the Eligibility criteria for Intending Parents. To be eligible for surrogacy, the intending parents must be a heterosexual married couple who have been married for at least five years and are Indian citizens. They should also have a certificate of infertility from a government hospital.
Eligibility criteria for surrogate mother: Sub-clause (b) of clause (iii) of section 4 of the Act provides for the Eligibility criteria for a surrogate mother. The surrogate mother must be a close relative of the intending couple, between the ages of 35 and 45, and have a child of her own. She must also be married and have the consent of her spouse.
Registration of surrogacy clinics: Chapter IV enumerated the provisions relating to the Registration of Surrogacy Clinics. The Act mandates the registration of all surrogacy clinics with the appropriate authorities. The clinics must maintain records of all surrogacy arrangements and submit them to the authorities.
Establishment of National Surrogacy Board: The Act under Chapter V provides for the establishment of a NATIONAL ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD AND STATE ASSISTED
REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARDS to regulate surrogacy in the country. The Board will oversee the registration of surrogacy clinics and maintain a database of surrogate mothers. The NARSB will be responsible for formulating policies, guidelines, and standards for the Assisted Reproductive Technology and surrogacy industry. It will also monitor and oversee the functioning of State Assisted Reproductive Technology And Surrogacy Boards (SASBs), which will be established in each state and union territory.
Protection of rights of surrogate mother: The Act under Section 2(b) provides for the protection of the rights of the surrogate mother. It mandates that the surrogate mother has the right to medical care and financial support during the pregnancy and Insurance Coverage.
Protection of rights of surrogate Child: Section 8 of the Act deals with the child born through surrogacy will have the same rights as any biological child and the said child shall be entitled to all the rights and privileges available to a natural child under any law for time being in force.
Offences and penalties: The Act under CHAPTER VII prescribes penalties for various offences, such as conducting Penalties under Surrogacy Act. Some of the offences and penalties under the Surrogacy (Regulation)Act 2021 are as follows:
- Commercial surrogacy: The act under Section 38 prohibits commercial surrogacy, which involves paying a surrogate mother for carrying a child for someone else. Any person who engages in commercial surrogacy or promotes it in any way is liable for imprisonment of up to 10 years and a fine of up to Rs. 10 lakhs.
- Exploitation of surrogate mother: The act prohibits any exploitation of the surrogate mother, including physical exploitation or any kind of physical or emotional harm. Any person who is found guilty of exploiting a surrogate mother is liable for imprisonment of up to 5 years and a fine of up to Rs. 10 lakhs.
- Abandonment of child: The act provides that if a commissioning couple or intending couple abandons the child born through surrogacy, they will be liable for imprisonment of up to 5 years and a fine of up to Rs. 10 lakhs.
SIGNIFICANT CHANGES FROM THE EARLIER LAW INCLUDE:
- The eligibility criteria for intending parents have been narrowed to exclude single persons, live-in couples, and foreign nationals.
- The age limit for surrogate mothers has been lowered from 35 to 45 years.
- The number of surrogacy arrangements that a surrogate mother can undertake has been limited to two, including her own child.
- The penalty for violating the provisions of the Act has been increased from five to ten years of imprisonment and a fine of up to Rs. 10 lahks.
IMPACT OF THE ACT ON DIFFERENT SECTIONS OF THE SOCIETY:
The potential impact of the Surrogacy (Regulation)Act, 2021 on various sections of society is as follows:
Individuals: The act is likely to impact individuals seeking surrogacy services, particularly those who were using commercial surrogacy services. The ban on commercial surrogacy may increase the cost of surrogacy for couples seeking this option. However, the availability of altruistic surrogacy may provide an alternative for eligible couples. The act also provides protection for surrogate mothers and children born through surrogacy, which could benefit their overall well-being.
Businesses of Commercial Surrogacy: The ban on commercial surrogacy may have a negative impact on businesses providing surrogacy services, as they will no longer be able to operate in the country. However, the act may also create new opportunities for businesses providing services related to altruistic surrogacy, such as counselling and medical services.
Government agencies: The establishment of the National Surrogacy Board and State Surrogacy Boards will provide a regulatory framework for surrogacy services in the country. This will help protect the rights of surrogate mothers and children born through surrogacy and ensure that surrogacy is carried out ethically and with due consideration for all parties involved.
POSITIVE EFFECTS OF THE SURROGACY (Regulation)ACT 2021:
- Protection of the rights of surrogate mothers: The act ensures that surrogate mothers are not exploited and are treated with dignity and respect. It provides for the establishment of a Surrogacy Board to regulate surrogacy services and to ensure that the rights of surrogate mothers are protected.
- Protection of the rights of children born through surrogacy: The act provides for the registration of children born through surrogacy, making it easier for them to obtain citizenship and other legal rights.
- Prevention of commercial exploitation of women: The act prohibits commercial surrogacy, which means that surrogacy can only be done for altruistic purposes, and not for financial gain.
- (Regulation)of surrogacy: The act regulates surrogacy arrangements by setting eligibility criteria for intended parents and surrogate mothers, providing for the establishment of surrogacy boards, and mandating the registration of surrogacy clinics and ART clinics.
NEGATIVE EFFECTS OF THE SURROGACY (Regulation)ACT 2021:
- Limited access to surrogacy services: The act restricts access to surrogacy services to only heterosexual couples who have been married for at least five years and are unable to conceive a child. This means that single parents, LGBTQ+ couples, and couples who have been married for less than five years cannot avail of surrogacy services.
- Economic impact on surrogacy clinics: The prohibition on commercial surrogacy could negatively impact the surrogacy industry, particularly clinics that rely on revenue from commercial surrogacy.
- Potential for black market surrogacy: The act’s restrictions on surrogacy may lead to an increase in black market surrogacy arrangements, where surrogate mothers may be more vulnerable to exploitation and abuse.
- Exploitation of surrogates: While the Surrogacy (Regulation)Act, 2021 aims to prevent the exploitation of surrogates, it may have unintended consequences. For example, the law permits only close relatives of the intending parents to be surrogates. This provision could lead to a situation where close relatives may feel obligated to become surrogates, even if they do not want to, due to social or familial pressures. This could potentially lead to their exploitation.
- Impact on medical tourism: India has been a popular destination for medical tourism for surrogacy due to lower costs and a supportive legal framework. However, the Surrogacy (Regulation)Act, 2021 restricts surrogacy to Indian citizens, thus limiting the number of clients who may travel to India for surrogacy. This could negatively impact the economy of the country and the livelihoods of those involved in the surrogacy industry.
In the case of Baby Manji Yamada versus the Union of India (2008), the Supreme Court faced the issue of surrogacy head-on. The court acknowledged that surrogacy can be a means for individuals to become parents, whether they are single or part of a same-sex couple. However, the current law only permits heterosexual couples to engage in surrogacy, effectively excluding non-heterosexual and non-binary individuals from the privilege of parenthood. Therefore, it is necessary to extend the right to have children to all individuals, regardless of their sexual orientation or gender identity.
The Supreme Court further held the surrogacy contract to be valid, and despite the presence of discord between the intended parents, allowing the intended father, who was also the biological father, the custody of the child.
The court ruling in the case of C (A Minor) (Wardship: Surrogacy) in 1985 acknowledged the validity of commercial surrogacy by considering it to be in the “best interests of the child.”
In a case known as Jan Balaz vs Municipality of Anand, the High Court of Gujarat addressed the issue of citizenship status for children born through surrogacy. The case involved a German couple who had entered into a surrogacy agreement with an Indian mother, resulting in the birth of twins. However, the German Government refused to grant citizenship to the babies, as German law did not recognize surrogacy as a means of parenthood. As a result, the biological father, Jan Balaz, applied for Indian passports for the children, but this was also denied, as they were not Indian citizens.
The High Court of Gujarat eventually ruled that the children, having been born in India to an Indian surrogate mother, were deemed citizens of India under Section 3(1)(c)(ii) of the Citizenship Act. The children were then issued overseas Indian passports. Subsequently, the German courts allowed the couple to apply for the adoption of the children.
In the Case of X v. UoI And Anr. WP(C) No. 42/2023, The petitioner, an unmarried woman in her late 30s who had already begun searching for a surrogate mother before the legislation came into effect, argues that the provisions of the Act are unconstitutional, illegal, and in violation of various articles of the Indian Constitution.
The petitioner is challenging certain provisions of the Surrogacy (Regulation) Act, 2020, specifically Sections 2(r), 2(s), 2(zd), and 2(zg) read with Sections 4 and 5. She argues that these provisions are unconstitutional as they prohibit unmarried women from using surrogacy to become parents, in violation of Articles 14, 19, 38, and 51 of the Constitution of India.
The petitioner’s argument that the provisions of the Act are unconstitutional is based on several articles of the Indian Constitution. Article 14 guarantees the right to equality before the law and equal protection of the law. She contends that denying unmarried women the right to use surrogacy to become parents is discriminatory and a violation of their right to equality before the law.
She also argues that the provisions of the Act restrict her freedom of reproductive choice Under Article 21 of the Constitution and deny her the opportunity to form a family.
The surrogacy procedure outlined in Section 4 has been criticized for imposing unreasonable restrictions on the reproductive rights of intending couples. The petition highlights several provisions deemed unreasonable, including the prohibition on having any surviving child, the requirement that the surrogate mother be genetically related to the intending couple or woman, the limit on the number of times a surrogate can act as a surrogate mother, the age limit of 25-35 years for surrogate mothers to undergo surgery, and the condition that the intending mother must be a widow or divorcee between 35-45 years of age. The petition contends that the Legislature failed to incorporate the recommendations made by the Law Commission’s report, which recognizes the right of unmarried women to be intending mothers. Additionally, the petition argues that these provisions violate international instruments.
The Surrogacy (Regulation)Act 2021, legislation has been introduced to regulate the surrogacy process in India. It aims to protect the interests of surrogate mothers and ensure the rights of the child born through surrogacy. However, some concerns have been raised about the Act’s restrictive nature and potential impact on the accessibility and affordability of surrogacy for those in need.