Introduction
Surrogacy is an arrangement, often whereby a woman (the surrogate mother) agrees to become pregnant and give birth to a child for someone else who is or will become the child’s parent(s). Intended parents use surrogacy to start their family when they can’t do so on their own. An ever-increasing prevalence of infertility globally has contributed to the advent of assisted reproductive techniques (ART). Here, Surrogacy has emerge as an alternative if the infertile woman or couple cannot reproduce.
An Indian woman opted to become a surrogate mother in 2014 in order to receive financial benefits and in the expectation that the money would help her start a new business. She gave birth to a child for the intended parents, but her expectations for herself were dashed. She received a little portion of the money she was promised. She discovered that a middleman received 50% of the money. This incidence prompted a number of Public Interest Litigations in the Supreme Court to control commercial surrogacy, and incidents like this emphasise the importance of enacting legislation that can govern and regulate the practise.
Surrogacy grew popular in India, and women began to use it for personal benefit. This surrogacy arrangement appears to benefit both sides because the intended parents have a child and the surrogate mother receives monetary rewards. At first glance, it appears to be an appealing offer in which a poor surrogate mother receives what she requires and an infertile couple get their long-desired kid. Aside from the benefits, we must not lose sight of what is done in the name of surrogacy. Surrogacy started to get misused when surrogate mothers began threatening intended parents and demanding monetary compensation. Due to the lack of openness and legal regulations, both the surrogate mother and the intended parents may be exploited.
Need of the Hour
The need for the surrogacy bill arose as India emerged as a surrogacy hub for couples and a rising number of incidences involving unethical practises were recorded. What was started for convenience has now become a luxury. It was highly misused even by the top elites in the country who are very well educated. There was a dire need to come up with a bill that could in some way be a positive side. In order to protect the rights of the intended parents and the surrogate mother, commercial surrogacy is now banned in India after a surrogacy bill passed in 2016. It aims to regulate the practice of surrogacy in the country, prevent exploitation of surrogate mother and protect the rights of children born of surrogacy.
Commercial surrogacy also known as “Rent a womb” was legalized in 2001 in order to increase medical tourism in India. Due to absence of strict regulations, it slowly became a reverberating business in India. India had been a favourite place of fertility tourism before the bill passed. Unethical practices, exploitation and greed over need led the government to take stringent actions
Surrogacy (Regulation) Act, 2021
This Act defines surrogacy as a practise in which a couple who is unable to have a child of their own owing to infertility or any disease is eligible for surrogacy under specified conditions. It is only approved for charitable purposes or for couples suffering from verified infertility or sickness.
Other than clinical fees and protection during the pregnancy, altruistic surrogacy involves no monetary compensation for the surrogate. The most well-known and effective type of ART is in vitro fertilisation (IVF). By establishing the National Assisted Reproductive Technology and Surrogacy Board, the ART Regulation 2021 provides a framework for the implementation of the surrogacy law.
To improve the facilities provided in surrogacy clinics, the Ministry of Health and Family Welfare issued Surrogacy (Regulation) Rules, 2022 on June 21, 2022 under the ministry of Mansukh Mandaviya, which elaborates on the number of people who must be employed and their qualifications. It also specifies the form and manner in which registration will take place, as well as the procedure for paying surrogacy clinic expenses.
Analysis of the Act
The Central Government specified the qualifying requirements and the number of people required at a registered surrogacy clinic in a notification.
Surrogacy clinic gynaecologists must be medical postgraduates in gynaecology and obstetrics with a track record of completing 50 ovum collection procedures and at least 3 years of working experience.
To protect the surrogate mother’s rights, a new insurance requirement that requires the intended couple or woman to buy a health insurance policy for the surrogate mother for a period of 36 months has been put in place.
The maximum number of surrogacy procedure attempts shall not exceed three. If a surrogate mother wishes to abort the child, the abortion procedure must be followed in accordance with Medical Termination of Pregnancy Act.
The intending pair, or the couple wishing to have a child, must be legally married in accordance with Indian laws. The female should be between the ages of 25 and 50, while the male should be between the ages of 26 and 55. Another key criteria is that they do not have any other adopted or naturally conceived children, whether through surrogacy or otherwise.
The surrogate mother must be between the ages of 35 and 45 when giving this service. Any woman can only be a surrogate mother once in her lifetime.
A ‘Certificate of Essentiality/Infertility’ must be issued by the National/State Assisted Reproductive Technology and Surrogacy Board to an intended couple who has a medical necessity for surrogacy.
Conclusion
The Act is surely a positive development however the procedure still is a complicated task. Many legal obligations need to be fulfilled even before starting the procedure. Not only this but there is also a social stigma around surrogacy. In my opinion, surrogacy should be reserved solely on woman’s discretion. The law should not encroach on that freedom. The bill excludes certain people to avail surrogacy such as same sex couples, live-in couples, widows and divorcees which I thought is a gross violation of human rights. It is simply a denial of justice for sexual minorities in India
This Article is Written by Ms. Dipti Tharwani who is the student of NIRMA University, Ahmedabad interning at SJLC.
