Exploring India’s Surrogacy Act

Index 

1. Introduction: Surrogacy 
2. Origin And Formation 
3. Surrogacy (Regulation) Act, 2019
4. Eligibility Criteria 
5. Factors Behind The Ban Of Indian Surrogacy 
6. Surrogacy Regulation Act, 2020
7. Surrogacy (Regulation) Act, 2021
8. Key Provisions Of Legislation 
9. Rules For Surrogacy Clinics 
10. Rules And Procedure For Surrogacy 
11. Registration Process For Surrogacy Clinics 
12. Advantages Of Being A Surrogate Mother
13. Drawbacks Of Being A Surrogate Mother 
14. Critiquing Surrogacy Regulations
15. Understanding Assisted Reproductive Technology Act
16. Definition of Assisted Reproductive Technology (ART)
17. Regulations For ART Clinics And Banks
18. Criteria For Sperm Donation And Assisted Reproductive Technologies
19. Management Of Assisted Reproductive Procedures
20. Misconduct In Surrogacy And ART Practices
21. Latest Judgement 
22. Conclusion 

Introduction: Surrogacy 

Surrogacy entails the surrogate mother carrying a child for another person, relinquishing care to the intended parents post-birth. It involves intricate legal and medical procedures, necessitating professional guidance and support networks like Fertility World Surrogacy Center India. Notably, India has permitted commercial surrogacy since 2002.

Origin And Formation 

The Law Commission of India, in its 208th report, stressed the necessity for legislation to regulate commercial surrogacy, citing concerns such as its predominantly foreign clientele, absence of a robust legal framework, and the potential exploitation of surrogate mothers, often driven by financial constraints and limited education. Consequently, the Indian government issued a notification in 2015 prohibiting surrogacy for foreign nationals.

The first Surrogacy (Regulation) Bill was introduced in the Lok Sabha in November 2016, with key provisions including a complete ban on commercial surrogacy, stipulating that the surrogate must be a close relative of the intended parents, requiring proof of infertility for couples, mandatory registration of all surrogacy clinics, maintenance of surrogacy records for 25 years by registered clinics, and barring single parents, couples living in India, homosexuals, unmarried or childless women from participating in surrogacy. However, the law failed to be implemented and lapsed after the Parliament’s dissolution.

Surrogacy (Regulation) Act, 2019

The Surrogacy (Regulation) Bill, 2019, aimed to regulate surrogacy in India by prohibiting commercial surrogacy and allowing only altruistic surrogacy. Altruistic surrogacy involves no financial transactions except for medical expenses and insurance for the surrogate mother. The bill also specified eligibility criteria for intended parents, surrogate mothers, and outlined the establishment of surrogacy boards at the national and state levels for overseeing surrogacy arrangements. Additionally, it aimed to safeguard the rights and welfare of surrogate mothers and children born through surrogacy.

The Surrogacy (Regulation) Bill, 2019, was presented in the Lok Sabha on July 15, 2019, and approved by the Lok Sabha on August 5, 2019. Subsequently, it was referred to a select committee for additional deliberation.

Eligibility Criteria 

For surrogacy, couples must have been married for at least five years. Additionally, they need to provide a necessity certificate along with an eligibility certificate when requested. Moreover, they must commit to not abandoning any child born through surrogacy.

The surrogate, a relative of the intended couple, must be married with children of her own and aged between 25 and 35, with no prior surrogacy experience. An insurance cover is mandatory, not just for the pregnancy period but also post-pregnancy care for the surrogate. The bill also aims to regulate surrogacy clinic operations and mandates registration to avoid service suspension. However, the selection of a child’s sex through surrogacy is prohibited under the Act.

Factors Behind The Ban Of Indian Surrogacy 

In India, women were compelled to stay until childbirth for the intended parents, devoid of family support, and abandoned post-pregnancy. Surrogates received a fraction of what the agencies charged the intended parents, typically around $4,000 to $5,000 as compensation. This commercial surrogacy exploited financial vulnerabilities, poverty, and lack of education among surrogates, who were repeatedly drawn into the process. Consequently, their health suffered as they were effectively treated as “baby-making machines” year after year. Surrogate mothers lacked the essential support services for themselves and their families during this taxing journey. The Government of India has taken steps to ensure the safety of all involved in the surrogacy process.

Surrogacy Regulation Act, 2020

The new Surrogacy Regulation Act, 2020, allowing any woman willing to become a surrogate mother was approved by the Union Cabinet on February 26, 2020.  Due to the COVID-19 pandemic, the Bill was delayed but is expected to be introduced as Bill 2021 in the lower house of Parliament during its upcoming session. This bill represents a significant improvement over the Surrogacy Regulation Act of 2019, addressing its loopholes. However, it still follows a need-based approach rather than a rights-based approach. Before it can take effect and fulfil its purpose, it must be enacted into law and receive presidential assent.

The proposed surrogacy legislation includes the establishment of regulatory bodies such as the National Surrogacy Board at the central level, State Surrogacy Boards at the state level, and competent authorities or agencies for Union Territories. It sets minimum standards for surrogacy clinics’ physical infrastructure, laboratory equipment, and professional staff. The legislation also bans commercial surrogacy based on recommendations from the Law Commission of India, allowing only altruistic surrogacy to prevent the growth of the uterus rental industry and protect surrogate mothers from exploitation. This ban extends to fashionable surrogacy not based on medical necessity but for convenience purposes.

Countries such as Australia, New Zealand, the United Kingdom, Canada, Netherlands, and South Africa are also adopting similar surrogacy regulations. The Surrogacy (Regulation) Act of 2019 mandated “proven infertility” in at least one intended couple member for surrogacy eligibility, but the 2020 Bill expanded eligibility to couples with a medical indication necessitating gestational surrogacy. Additionally, widowed or divorced Indian women aged between 35 and 45 intending to undergo surrogacy are eligible under the new regulations.

Surrogacy (Regulation) Act, 2021

Under the Surrogacy (Regulation) Act of 2021, surrogacy is permitted for widowed or divorced women aged 35 to 45, as well as legally married couples, if a medical condition necessitates it. The act strictly prohibits commercial surrogacy, imposing severe penalties such as imprisonment for up to 10 years and fines of up to Rs 10 lakh. Altruistic surrogacy is the only allowed form, where no monetary transactions occur, and the surrogate mother must be genetically related to the intended parents.

Key Provisions Of The Legislation

The Surrogacy (Regulations) Act of 2021, which contains eight chapters and 54 sections governing surrogacy in India, was granted the President’s assent on December 25th, 2021.

Section 2 of the Act delineates key definitions. Altruistic surrogacy, as per Section 2(b), restricts compensation to medical expenses, insurance, and prescribed costs for the surrogate mother, disallowing any additional charges or incentives.

Commercial surrogacy, defined in Section 2(g), encompasses all forms of monetary rewards but is prohibited under the Act. Section 2(h) clarifies ‘couple’ as a legally married pair, both above the age of 21 for the man and 18 for the woman.

Section 2(r) explains ‘intending couple’ as those aiming to become parents through surrogacy, with age criteria specified for females (23-50 years) and males (26-55 years) under Section 4(iii)(c)(I). 

Section 2(s) defines ‘intending women’ as females aged 35-45, including widows or divorced individuals seeking surrogacy. Additionally, Section 2(zd) outlines ‘surrogacy’ as a process wherein a woman carries and delivers a child for an intending couple, subsequently relinquishing parental rights to them after birth.

Rules For Surrogacy Clinics 

Section 3 of the Act mandates the registration of surrogacy clinics for conducting surrogacy procedures. It explicitly prohibits commercial surrogacy, emphasising that registered surrogacy clinics, paediatricians, gynaecologists, or any medical practitioners must not engage in such practices. All surrogacy-related procedures must occur exclusively at registered clinics, with no honorary employment allowed. Additionally, the Act strictly prohibits sex selection and the storage of human embryos or gametes for surrogacy purposes.

Rules And Procedure For Surrogacy 

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1. Under Section 4 of the Act, any unregistered surrogacy clinic is barred from involvement, collaboration, or support in surrogacy activities and procedures which is further mentioned in chapter IV of the Act. They are also prohibited from hiring individuals lacking the necessary qualifications, whether on an honorary basis or for payment, in connection with surrogacy services. Moreover, storing human gametes or embryos for surrogacy purposes is strictly prohibited, except for authorised purposes such as sperm banks, IVF, or medical research.
2. Section 6 of the Act mandates that the surrogate mother be fully informed about the potential side effects and impacts of surrogacy procedures in a language she comprehends, and her consent must be documented in writing. Furthermore, according to Section 7, it is strictly prohibited to abandon a child born through surrogacy due to birth defects, genetic conditions, or any medical issues, regardless of whether the abandonment occurs in India or outside of it.
3. Section 8 of the Act stipulates that a child born through surrogacy will be legally regarded as the biological offspring of the intending couple, possessing all rights granted to a natural child by existing laws. Additionally, as outlined in Section 10, no entity or individual has the authority to compel a surrogate mother to undergo an abortion, except under specific circumstances that may be defined by prescribed conditions.

Registration Process For Surrogacy Clinics 

1. Section 11 of the Act mandates that surrogacy clinics must obtain proper registration under the legislation before providing any surrogacy services or operating a surrogacy centre. Within sixty days of obtaining the necessary authorization, every surrogacy centre involved in conducting surrogacy procedures, whether partial or complete, must submit an application for registration.
2. Section 12 of the Act outlines the procedure for obtaining a certificate of registration for surrogacy clinics. Upon thorough examination and confirmation that the applicant has fulfilled all stipulated criteria and paid the required fees, the relevant authority will issue the certificate of registration. However, if the authority finds that the applicant has not met the necessary requirements, the application may be rejected, with detailed reasons for rejection documented in writing.
3. Section 13 permits the cancellation or suspension of registration upon receiving complaints or taking suo motu action. In such cases, the clinic is required to provide justification as to why their registration should not be revoked or suspended, based on the reasons specified in the notice.
4. Section 14 allows for an appeal to be lodged within 30 days from the date of receiving the rejection order. In addition, Section 15 mandates the establishment of the National Assisted Reproductive Technology and Surrogacy Registry, while Section 16 specifies that entities registered under Section 15 of the Act must also register under Section 9 of the Assisted Reproductive Technology Act.
5. Section 17 mandates the establishment of the National Assisted Reproductive Technology and Surrogacy Registry to register surrogacy clinics under the Act. This registry will be referred to as the National Assisted Reproductive Technology and Surrogacy Registry. Regarding meetings, as outlined in Section 19, a meeting must be conducted every six months, chaired by the chairperson or, in their absence, the vice-chairperson. Decisions on all matters discussed in the meeting will be made based on the majority vote.
6. Section 21 outlines the grounds for disqualifying members, including insolvency, moral misconduct, physical or mental incapacity, actions prejudicial to public interest, or any other reasons deemed appropriate by the Central Government indicating misbehaviour or incapacity. The removal of a member can only be done by order of the Central Government. Additionally, Section 24 allows for the re-appointment of an ex officio member for two consecutive terms.
7. Ex officio members are eligible for re-appointment for two consecutive terms according to Section 24. Section 25 outlines the board’s responsibilities, which include advising the Central Government on surrogacy matters, conducting periodic reviews and monitoring of Act implementation, establishing a code of conduct for clinic personnel, supervising clinic operations, boards, and registries, and fulfilling any other prescribed functions.
8. According to Section 35 of the Act, the Central Government must appoint an authority for each territory within 90 days of the Act’s commencement, while the State Government should appoint at least one authority for the state or a specific part of it. Section 37 delineates the powers of these authorities, which include summoning individuals violating Act provisions, searching suspected premises, requesting documents related to violations, and exercising any other powers prescribed as per the situation and case at hand.
9. Under Section 40 of the Act, any individual or entity that prevents an intending couple from following altruistic surrogacy procedures can face imprisonment for up to five years and a fine of up to five lakh rupees for the initial offence. For subsequent offences, the punishment includes imprisonment of up to ten years and a fine of up to ten lakh rupees. Furthermore, Section 43 classifies all offences under this Act as cognizable, non-bailable, and non-compoundable.
10. Chapter VIII encompasses the authority to establish rules, regulations, conduct search and seizure operations, address difficulties, and establish transitional provisions. Section 46 mandates the maintenance of records for 25 years, unless related to ongoing criminal or other proceedings, where they must be retained until the proceedings conclude. These records must be accessible for inspection upon request as necessary.
11. Section 47 empowers the appropriate authority to conduct a search and seizure of records if there is a reasonable belief that an act has been carried out.

Advantages Of Being A Surrogate Mother 

Embarking on the surrogacy journey is driven by various reasons for women. Many surrogate mothers find immense satisfaction and a sense of accomplishment in contributing to the happiness of another family. Apart from this, surrogates experience the joy of fulfilling a strong desire to help others in need, particularly those facing infertility. This transformative experience not only brings happiness but also a deep sense of fulfilment. Additionally, the solidarity among surrogates creates a supportive and encouraging environment, making the journey less daunting despite the rigorous background checks, medical assessments, and psychological evaluations involved.

Becoming a surrogate allows women to relive the experience of pregnancy, which many of them enjoy, without the responsibility of raising the child. Surrogates, who are typically already mothers, are generously compensated for their commitment, time, and the associated risks they undertake. This compensation covers expenses such as travel, medication, and health insurance throughout the surrogacy journey. The financial reward received can significantly contribute to achieving personal goals like purchasing a home, funding education, or paying off debts.

Upon reaching an agreement, legally binding contracts are established to safeguard the rights and interests of both the intended parents and the surrogate. These contracts outline clear responsibilities and duties for each party, promoting a healthy and successful pregnancy journey. Additionally, they affirm that the surrogate holds no legal responsibility for the child once born, providing a comprehensive framework that ensures protection and clarity for all involved parties.

Drawbacks Of Being A Surrogate Mother 

While gestational surrogacy offers significant advantages by enabling surrogate mothers to give parenthood to hopeful couples, it also comes with inherent risks and drawbacks. The process is physically and emotionally demanding, requiring potential surrogates to undergo rigorous medical screenings and tests to ensure their suitability for a healthy pregnancy. Surrogates must handle the full spectrum of pregnancy-related responsibilities, from attending medical appointments to undergoing necessary treatments, adding to the emotional challenges associated with this selfless decision.

From initial online applications to the actual birth of the baby, there are numerous follow-up appointments and procedures to navigate. The legal and medical aspects alone take several months to finalise. Surrogates are advised against making extensive travel plans during this time, as the entire process typically spans at least a year. Additionally, like any pregnancy, there are inherent health risks involved, including the potential for failed initial transfers and complications that may impact the surrogate’s well-being. These factors require careful consideration and emotional preparedness before embarking on the surrogacy journey.

Surrogate mothers undergo medication as a crucial part of the gestational surrogacy process, which includes birth control, estrogen, and progesterone. Regular blood draws and ultrasound checks ensure the cycle’s effectiveness. Some surrogates are surprised by the volume of medication prescribed for preparation and pregnancy, but it’s essential for a healthy pregnancy and delivery. Despite growing acceptance, surrogacy still faces societal stigma, leading to varying attitudes and potential lack of understanding or support from some individuals due to misinformation and social biases.

Critiquing Surrogacy Regulations 

The Act’s loopholes are evident in areas such as the potential exploitation of surrogates and children. There’s a need for a balanced approach that safeguards the rights of both the unborn child and economically vulnerable surrogate mothers. However, the current legislation lacks this equilibrium. Furthermore, the Act inadvertently reinforces traditional patriarchal norms by not recognizing the economic value of women’s reproductive labour, which directly impacts their fundamental reproductive rights as guaranteed by Article 21 of the Constitution.

The ban on commercial surrogacy denies surrogates a legitimate income source, reducing the pool of willing participants. This restriction indirectly impacts couples seeking parenthood through surrogacy. Additionally, emotional complexities arise in altruistic surrogacy when involving friends or relatives as surrogates, leading to potential strains on relationships among intended parents, surrogates, and the surrogate child. This arrangement also limits the options available to intended parents in selecting a surrogate due to the limited number of willing participants.

Altruistic surrogacy stands out for its exclusion of any third-party involvement. This means the expectant couple takes on the responsibility of covering medical and other related expenses during the surrogacy process. In contrast, involving a third party can offer crucial support to both the intended couple and the surrogate mother, navigating them through the complexities of the surrogacy journey. However, India’s Surrogacy Act strictly prohibits commercial surrogacy and any monetary compensation to surrogates. This prohibition, although aimed at safeguarding against exploitation, clashes with the constitutional right to choose one’s reproductive options, as established in the Suchita Srivastava v. Chandigarh Administration case of 2009. By disallowing commercial surrogacy, the law overlooks the financial burdens, emotional toll, and medical expenses surrogates bear, potentially hindering their ability to benefit from their reproductive capacities.

The Parliamentary Standing Committee on Health and Family Welfare advocated for fair compensation for surrogates in its 102nd report in 2016, instead of advocating for the removal of the ban on commercial surrogacy. This viewpoint, supported by Article 23 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Economic, Social, and Cultural Rights, stresses the importance of fair remuneration for human labour. However, these arguments and international standards are not considered in the Surrogacy Act, which maintains its prohibition on commercial surrogacy without addressing the issue of adequate compensation for surrogates.

Statutory reforms concerning surrogacy must prioritise the protection of oocyte donors’ rights, considering their pivotal role in the process. The Surrogacy (Regulation) Act of 2021 should explicitly recognize and uphold the rights to equality and parenthood for LGBTQIA+ individuals interested in engaging in surrogacy. Additionally, the Act should allow for voluntary disclosure of donors’ identities. Moreover, it’s crucial to establish clear guidelines for compensating surrogates to prevent any potential exploitation or abuse of their vulnerability within these arrangements.

Understanding Assisted Reproductive Technology Act 

The Assisted Reproductive Technology (ART) Act is legislation that regulates procedures and practices related to assisted reproductive technologies in a country or jurisdiction. It typically covers various aspects such as the rights and responsibilities of parties involved in assisted reproductive procedures, including couples seeking fertility treatments, gamete donors, surrogates, and medical professionals. The ART Act may address issues such as consent requirements, eligibility criteria for accessing assisted reproductive services, guidelines for gamete donation and surrogacy arrangements, establishment of regulatory bodies overseeing ART practices, and ethical considerations related to these technologies. Overall, the ART Act aims to ensure ethical, safe, and fair practices in assisted reproduction while protecting the rights and well-being of all individuals involved.

Definition of Assisted Reproductive Technology (Art)

Assisted Reproductive Technology (ART) comprises various techniques designed to facilitate pregnancy by manipulating sperm or egg cells outside the body and then implanting embryos into the female reproductive system. These procedures include sperm donation, in vitro fertilisation (IVF) conducted in a laboratory, and surrogacy, where the surrogate mother is not genetically related to the child.

Regulations For Art Clinics And Banks 

The National Registry of Banks and Clinics in India is responsible for maintaining a centralised database with detailed information about ART clinics and banks. These establishments can renew their registrations every five years for an additional five-year period. However, if any clinic or bank violates regulations, it faces the risk of having its registration revoked or suspended. Moreover, clinics are strictly prohibited from performing sex-selective deliveries and must conduct genetic testing for diseases before implanting embryos into women’s bodies.

Criteria For Sperm Donation And Assisted Reproductive Technologies

Registered ART banks are authorised to screen, collect, and store sperm from men aged 21 to 55 and eggs from women aged 23 to 35. The law mandates that egg donors must be married with at least one child aged three years or older. Additionally, egg donors are limited to donating up to seven eggs once in their lifetime, and sperm from a single donor cannot be provided to more than one couple. Both the couple seeking ART procedures and the donor must provide written informed consent. Furthermore, the couple must ensure insurance coverage for the donor in case of loss, damage, or death during the ART procedure.

Promoting or providing gender-selective Assisted Reproductive Technology (ART) services is strictly prohibited for clinics and banks, with penalties including imprisonment of 5 to 10 years and/or fines ranging from Rs.10 to 25 lakhs. Any child born through ART is legally recognized as the biological child of the couple, entitling them to all associated rights. The donor relinquishes any parental authority or rights over the child as per the law.

Management Of Assisted Reproductive Procedures

Under the Surrogacy Act, both national and state boards are set up to oversee and regulate ART services. These boards play crucial roles such as advising the government on policy matters, ensuring the enforcement of laws, and formulating a code of conduct for ART clinics and banks.

Misconduct In Surrogacy And ART Practices

The Surrogacy Act outlines several punishable offences, including abandoning or exploiting children born through ART, engaging in the sale, purchase, or trade of embryos, exploiting couples or donors, and transferring embryos to men or animals. For first-time offences, a fine ranging from Rs 5 to 10 lakh can be imposed. Subsequent or more severe offences are punishable by imprisonment lasting 8 to 12 years and fines ranging from Rs 10 to 20 million.

Latest Judgement 

The Baba Manji Yamada v. Union of India case in 2009 involved a child born to an Indian surrogate mother for a Japanese couple who had separated before the child’s birth. As there was no legal framework for such situations, the biological father sought to take the child to Japan. In response, the Supreme Court of India stepped in and granted custody of the child to her grandmother. This incident prompted the Indian government to introduce legislation to regulate surrogacy practices.

In the Jan Balaz v. Anand Municipality case from 2008, the Gujarat High Court ruled that the birth certificate of a child born via surrogacy would list the surrogate mother’s name. The child, born to an Indian surrogate mother, had a German father who claimed parental rights. However, Germany refused to grant citizenship to the child after birth. This case gained complexity due to the lack of prior legal guidance on the citizenship status of children born through surrogacy. As the case progressed, it became evident that the children were considered Indian nationals by birth under Section 3(1)(c)(ii) of the Citizenship Act, establishing their Indian citizenship.

Conclusion 

In conclusion, the proposed surrogacy law presents a comprehensive approach that addresses the complex interplay of social, moral, ethical, legal, and scientific factors inherent in the surrogacy process. It aims to balance the often conflicting interests of all parties involved, including the well-being of the child, the rights of the surrogate mother, and the expectations of clients. The inclusion of stringent penalties in the proposed legislation serves as a deterrent against potential violations, ensuring fair and equitable proceedings. However, passing the Assisted Reproduction (ART) Bill 2020 before the Surrogacy Regulation Bill 2020 is crucial as it establishes a much-needed regulatory framework for ART clinics, enhancing oversight and regulation of processes such as surrogacy and abortion.