This article is authored by Bokka Ashwika and edited by Mr. Anoop Prakash Awasthi, AOR and Adv. Prapti Singh.

The Surrogacy Act, 2021: 

The Surrogacy (Regulation) Act 2021 came into effect from 25th January 2022. The Act aims to prohibit commercial surrogacy and allows for altruistic surrogacy. In commercial surrogacy, the surrogate mother is compensated for her services beyond reimbursement for her medical expenses. The arrangement of compensation in an unequal society could potentially pave way for exploitation of surrogate mothers and the intending parents. In altruistic surrogacy, the surrogate mother doesn’t receive any monetary compensation other than the medical expenses and insurance during the pregnancy.   

Commercial surrogacy was legalized in India back in 2002. Due to the absence of legal regulations and lack of implementation, surrogate mothers faced multiple challenges, including exploitation, unhygienic living conditions, and unfair treatment. Thus, the law is a welcome move in the right direction; however, banning commercial surrogacy has created its own set of challenges. 

The banning of commercial surrogacy moves from the rights-based approach to a needs-based approach, thus removing the women’s autonomy to make their own reproductive decisions and right to parenthood. One could argue that the state must stop the exploitation of poor women under surrogacy and protect the child’s right to be born. However, the current Act fails to balance these two interests.

The Act reinforces traditional patriarchal norms of our society that attributes no economic value to women’s work and, directly affecting the fundamental rights of the women to reproduce under Article 21 of the constitution. The altruistic surrogacy model expects the women to go through the physical and emotional pain and labor of giving birth to a child only out of compassion which is far removed from the existing reality. Having such unrealistic expectations reinforces the patriarchal attitude of the society and controlling the autonomy of people with reproductive organs. Banning commercial surrogacy also denies a legitimate source of income of the surrogates, further limiting the number of women to willingly surrogate. Overall, this step indirectly denies children to the couples choosing to embrace parenthood.

Further, there are multiple disadvantages of altruistic surrogacy. Having a friend or relative as a surrogate mother may lead to emotional complications not only for the intending parents but also for the surrogate child as there is great deal of risking the relationship in the course of surrogacy period and post birth. Altruistic surrogacy also limits the option of the intending couple in choosing a surrogate mother as very limited relatives will be ready to undergo the process.

In an altruistic surrogacy, there is no third-party involvement. A third-party involvement ensures that the intended couple will bear and support the medical and other miscellaneous expenses during the surrogacy process. Overall, a third party helps both the intended couple and the surrogate mother navigate through the complex process, which may not be possible in the case of altruistic surrogacy.

Next, the Bill outlines the eligibility criteria for couples intending to opt for surrogacy. The eligible couple should have a ‘certificate of eligibility ‘ and ‘certificate of essentiality’ issued by the authorities in charge. Further, the individuals wishing to be parents via surrogacy include the additional criteria as listed below:

  • Heterosexual couple (each of the opposite gender) with a man aged 26 to 55 years and women aged 25 to 50 years. 
  • The couple should be married for a minimum of five years.
  • Should have no other children, including biological, adopted, or surrogated. However, the Act waives off this condition for couples who have children with (a) physical/mental disability (b) life-threatening disorder. 

The Act further requires a waiting period of five years (from the date of marriage) before issuing a certificate of infertility to the couple. This clause directly curtails the couples’ freedom to start a family earlier. 

Additionally, the age-limits given for men and women in the Act reinforces the patriarchal values that men have to be older than women. It also remains silent on the procedure to be followed if only one of the parents is eligible as per the clause, whereas, the other is not.  

The Act also enforces the surrogate to be a close relative of the couple, aged between 25 to 35 years which may lead to physical abuse and domestic violence due to the added pressures from the families to become surrogates for the other family members.

The law comes as a discriminatory mark against children with disabilities. The Act considers having children with physical and special needs as childless. It further encourages considering surrogacy if the couple has a child with a life-threatening disorder. This clause directly violates the right of the children with the disability, thus denying them treatment with dignity.  

The Act is a clear slap on the face of the LGBTQ+ community and single fathers who want to have a child. The LGBTQ+ community forms 15% of the total population and around 20% of the population going for surrogacy accounts for single parents. This law comes as a backlash to the other laws passed in favor of the LGBTQ+ community, like banning Section 377 and Right to Privacy. Moreover, by restricting the Act only to the cis-gender heterosexual couples and single mothers (widows and divorced), the Act infringes the right to parenthood for the LGBTQ+ population and single fathers, as defined under Article 21 by The Supreme Court of India.    

To conclude, despite perceivably noble intentions and well-thought-out plans to protect surrogate mothers, it reinforces the typical patriarchal values of society by assuming the institution of heterosexual marriage as the basis for parenthood, which goes against the fundamental rights of the LGBTQ+ population, single men and women.

The Surrogacy rules 2022: The Ministry of Health and Family Welfare on 10th October 2022, has published the Surrogacy (Regulation) Amendment Rules, 2022 to further amend the Surrogacy (Regulation) Rules, 2022. The Amendment is brought under rule 5 which deals with Insurance coverage in which sub-rule 2 has been substituted as follows:

The intending couple/woman shall sign an affidavit to be sworn before a Metropolitan Magistrate or a Judicial Magistrate of First Class or an Executive Magistrate or a Notary Public giving guarantee as per the clause (q) of sub-section (1) of section 2 of the Surrogacy (Regulation) Act, 2021.

Under the Surrogacy (Regulation) Rules, 2022, The intending woman or couple shall purchase a general health insurance coverage in favour of surrogate mother for a period of thirty six months from an insurance company or an agent recognized by the Insurance Regulatory and Development Authority established under the provisions of the Insurance Regulatory and Development Authority Act, (41 of 1999) for an amount which is sufficient enough to cover all expenses for all complications arising out of pregnancy and also covering post- partum delivery complications.

Key features of the rules: 

  • Central Government by issuing a notification declared the eligibility criteria and number of persons required at a registered surrogacy clinic. Further, the details for the minimum equipment required at such clinics are also specifically mentioned.
  • The composition of such clinics as per the notification is, that any such clinics shall have at least one gynecologist, anesthetist, embryologist and counselor and the clinic may employ additional staff by the ART Level 2 clinics.
  • Gynecologist at surrogacy clinics shall be a medical post-graduate in gynecology and obstetrics and should have record of performing 50 ovum pickup procedures and at least 3 years of working experience in an ART clinic under supervision of a trained ART specialist.
  • ART is defined as “assisted reproductive technology” with its grammatical variations and cognate expressions, means all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the reproductive system of a woman”. Henceforth, a gynecologist needs to have expertise in this technology.
  • Form 1 in the notification specifies the application to receive a certificate of recommendation from the board.
  • To safeguard the rights of the surrogate mother the provision for insurance coverage has been introduced, which mandates the intending couple or woman to purchase a health insurance for the surrogate mother for 36 months.
  • An affidavit before a Metropolitan Magistrate or a Judicial Magistrate of the first-class shall be signed by the woman or couple with intention of giving guarantee under section 2 of the Surrogacy (Regulation) Act, 2021.
  • The maximum number of attempts of surrogacy procedure shall not be more than 3 times.
  • The surrogate mother shall give her free consent as per the specifications provided in Form.
  • It has been decided the gynecologist shall implant only 1 embryo, with an exception of 3 embryos in special cases.
  • In case where a surrogate mother wants to abort the child then abortion process is to be followed as per Medical Termination of Pregnancy Act, 1971.

References:

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