Surrogacy in India

In News

• The recent announcement by Tamil film director Vignesh and his wife, actor Nayanthara, that they had become parents to twin boys is building up into a controversy, with speculations that the couple opted for surrogacy.

What is Surrogacy?

• 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.

The Surrogacy Laws

• The parliament in 2021 passed two laws: 
  • 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. 

Major provisions of the Law 

• Eligibility: According to the Surrogacy (Regulation) Act, only a married couple who has a medical condition necessitating gestational surrogacy can avail it. They have to first obtain a certificate of recommendation from a District Medical Board.
  • Gestational surrogacy’ means:
    • She has no uterus or missing uterus or abnormal uterus or if the uterus is surgically removed due to any medical conditions such as gynaecological cancer.
    • Intended parent or woman who has repeatedly failed to conceive after multiple In vitro fertilization or Intracytoplasmic sperm injection attempts.
    • Multiple pregnancy losses resulting from an unexplained medical reason, unexplained graft rejection due to exaggerated immune response;
    • Any illness that makes it impossible for a woman to carry a pregnancy to viability or pregnancy that is life threatening.
• An intending woman who is a widow or divorcee between the age of 35 to 45 years- can also avail the surrogacy.
• The intending couple where the woman is of the age of 23 to 50 years and a man between 26 to 55 years- is eligible under the law.
  • Only such intending couples can apply who have not had any surviving child biologically or through adoption or earlier surrogacy.
  • An exception has been provided for the couples whose child is “mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure”.
  • The intending couple or intending woman is not allowed to abandon the child, born out of a surrogacy procedure, for any reason whatsoever.
    • A child born out of a surrogacy procedure is deemed to be a biological child of the intending couple or intending woman.
• Eligibility to be a surrogate mother
  • A married woman of the age of 25 to 35 years on the day of implantation, with a child of her own, can be a surrogate mother.
  • She can act as a surrogate mother only once in her lifetime and with only three attempts of procedure is allowed.
  • The woman has to give a written informed consent for the purpose and also be medically and psychologically fit.
  • No charges other than medical expenses can be given to the surrogate mother or her dependents or her representative by the intending couple or woman.
• Abortion
  • A surrogate mother can be allowed abortion during the process of surrogacy only in accordance with the Medical Termination of Pregnancy Act.
  • She also cannot disclose the identity of the couple seeking the surrogacy.
• Penalty
  • Offences under the Act include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc. 
  • These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakh.
• Regulation of Surrogacy Clinics
  • No Surrogacy Clinic can conduct or associate with or help in any manner in conducting the surrogacy procedure unless it is registered under the law.

Major Challenges

• The two Acts have been described as discriminatory against the single man who may desire to become a father via surrogacy or the married woman who already has a child and is desirous of expanding her family through the procedure.
• Disqualifying other persons on basis of nationality, marital status, sexual orientation or age does not pass the test of equality.
• Reproductive autonomy: inclusive of the right to procreation and parenthood, is not within the domain of the State.
• Infertility cannot be compulsory to undertake surrogacy: the certificate to prove infertility is a violation of privacy as part of the right to life under Article 21 of the Constitution.
• India as Surrogacy hub: 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.

Way forward

• Surrogacy is legal in India. But, making it commercial is illegal. It is a humanitarian act and is recognized by law.
  • Surrogacy comes under the reproductive choices of women and it is included as a fundamental right under the purview of Article 21 of the Indian Constitution.
• The law on surrogacy came into effect from January 25 and provides a gestation period of ten months to existing surrogate mothers’ to protect their well being. 
• Prior to the coming into effect of the laws, the Indian Council of Medical Research had issued a ‘Code of Practice, Ethical Consideration and Legal Issues’ for clinics involved in such procedures.
• The guidelines said surrogacy by assisted conception should normally be considered only for patients for whom it would be physically or “medically impossible” to carry a baby to term and that a surrogate mother should not be over 45 years of age.

Source: IE