Surrogacy in India, Need, Law, Feature & Challenges

Surrogacy in India

Surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the intended parent/s). A surrogate, sometimes also called a gestational carrier, is a woman who conceives, carries and gives birth to a child for another person or couple (intended parent/s).

Surrogacy in India Meaning

Surrogacy is defined as a practice wherein one woman bears and gives birth to a child with the intention to thereafter hand it over to the intending couple. While commercial surrogacy is not allowed in India such procedures are allowed only for altruistic purposes with many restrictions on the person seeking to apply under the law. No other monetary consideration will be permitted.

Surrogacy in India & Law Associated

The parliament in 2021 passed two laws related to surrogacy

The Surrogacy (Regulation) Act

It governs the practice and process of surrogacy in India. It provided a gestation period of ten months from the date of coming into force to existing surrogate mothers’ to protect their well being.

The Assisted Reproductive Technology (Regulation) Act

It was enacted for regulation and supervision of the assisted reproductive technology clinics and banks. Under the Act, the services can be made available to a woman above the age of 21 years and below the age of 50 years and to a man above the age of 21 years and below the age of 55 years. ART procedures include gamete donation, intrauterine insemination, and in-vitro fertilisation or IVF.

Surrogacy Act Key Features

Allows Only ‘altruistic surrogacy’: The Surrogacy law allows only altruistic surrogacy wherein only the medical expenses and insurance coverage is provided by the couple to the surrogate mother during pregnancy.  No other monetary consideration will be permitted under the surrogacy law.

Married Couple allowed Surrogacy only on Medical Grounds: Under the surrogacy Act, only a married couple can opt for surrogacy only on medical grounds.  The Surrogacy law defines a couple as a married Indian “man and woman”. It also prescribes age-criteria with the woman being in the age group of 23 to 50 years and the man between 26 to 55 years.

Ineligibility Criteria for Surrogate Couple:  The couple having a child of their own will not be eligible for Surrogacy. Though the law allows single women to resort to surrogacy, she should either be a widow or a divorcee, between the age of 35 to 45 years. Single men are however, not eligible.

Eligibility Criteria for Surrogate Mothers:  Only a close relative of the couple can be a surrogate mother, one who is able to provide a medical fitness certificate. She should have been married, with a child of her own, and must be between 25 and 35 years, but can be a surrogate mother only once.

Surrogacy in India Need

India has emerged as a hub for infertility treatment, attracting people from the world over with its state of the art technology and competitive prices to treat infertility.  Soon enough, due to prevailing socio-economic inequities, underprivileged women found an option to ‘rent their wombs’.

Underprivileged women use the money to take care of their expenses — often to facilitate a marriage, enable children to get an education, or to provide for hospitalisation or surgery for someone in the family. Once information of the availability of such wombs got out, the demand also picked up.  Unscrupulous middle men inveigled themselves into the scene and exploitation of these women began.

Several instances began to emerge where women, in often desperate straits, started lodging police complaints after they did not receive the promised sum. In 2008 a Japanese couple began the process with a surrogate mother in Gujarat, but before the child was born they split with both of them refusing to take the child. In 2012, an Australian couple commissioned a surrogate mother, and arbitrarily chose one of the twins that were born.

Surrogacy in India Associated Challenges

Exploitation of the Surrogate and the Child: One may make the case that the state needs to protect the child’s right to birth and cease using impoverished women as surrogates. These two interests are not sufficiently balanced by the existing Act, nevertheless.

Reinforces Patriarchal Norms: The Act directly affects the basic rights of women to procreate under Article 21 of the Constitution and upholds traditional patriarchal norms of our society that place little importance on the labor of women.

Denies surrogates a valid source of income: By outlawing commercial surrogacy, the number of women who are willing to become surrogates is further reduced. Overall, by taking this action, couples who choose to become parents are essentially denied having children.

A friend or relative serving as a surrogate mother in an altruistic surrogacy may result in emotional issues for the intended parents as well as the surrogate kid because there is a great degree of risk to the relationship during the surrogacy process and after the baby is born. Altruistic surrogacy further restricts the options available to the intended parents in selecting a surrogate mother because very few family members will be willing to participate in the procedure.

No Third-Party Involvement: There is no third-party involvement in an altruistic surrogacy. Involving a third party ensures that the intended pair will cover and support the surrogacy process’s medical and other incidental costs. In general, a third party aids the intended parents and the surrogate mother in navigating the difficult procedure, which would not be possible in the case of altruistic surrogacy.

Surrogacy in India UPSC

The Indian Council of Medical Research had published a “Code of Practise, Ethical Consideration and Legal Issues” for clinics engaged in such treatments prior to the legislation taking effect. The guidelines stated that a surrogate mother should not be older than 45 years old and that surrogacy by assisted conception should typically only be considered for patients for whom it would be physically or “medically impossible” to carry a baby to term.

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