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Context: The Delhi High Court recently raised concerns regarding the exclusion of single, unmarried women from accessing surrogacy procedures under the Surrogacy (Regulation) Act, 2021.
- The court was hearing a petition filed by a 44-year-old single, unmarried woman who challenged the Act's provision that only allows Indian widows or female divorcees to undergo surrogacy.
- The petitioner argued that her inability to marry earlier in life should not restrict her reproductive choices and that the state cannot regulate such personal decisions.
- The petitioner's lawyer explained that the woman, unable to conceive naturally due to her age, wishes to have a child through surrogacy. However, the Act's provisions hinder her from pursuing this option.
- The petition contends that these restrictions violate the petitioner's fundamental rights under Articles 14 (right to equality) and 21 (right to life) of the Constitution, branding them as irrational and discriminatory.
●Surrogacy is a complex and sensitive reproductive arrangement where a woman, known as the surrogate or gestational carrier, carries and gives birth to a child for another individual or couple, known as the intended parents.
●Surrogacy raises various ethical, legal, and emotional considerations, including the rights and well-being of the surrogate mother, the intended parents, and the child.
●Laws regarding surrogacy vary widely across different countries and even within regions of the same country. As a result, the legal aspects and acceptance of surrogacy differ greatly worldwide.
There are two main types of Surrogacy:
●Gestational Surrogacy: In this type, the surrogate is not biologically related to the child she carries. The embryo is created through in vitro fertilization (IVF) using the eggs and sperm of the intended parents or donors. The resulting embryo is implanted into the surrogate's uterus, and she carries the pregnancy to term and delivers the baby.
●Traditional Surrogacy: In this method, the surrogate mother's own egg is fertilized with the sperm of the intended father or a sperm donor through artificial insemination. The surrogate is both the biological and gestational mother of the child.
Surrogacy can be categorized into two main forms based on compensation:
●Altruistic Surrogacy: In altruistic surrogacy, the surrogate mother receives no financial compensation beyond the reimbursement of medical expenses and insurance coverage related to the pregnancy. The surrogate volunteers to help the intended parents without any monetary gain and is often motivated by a desire to assist others in building their families.
●Commercial Surrogacy: It involves financial transactions where the surrogate mother receives monetary compensation or other rewards that go beyond covering basic medical expenses and insurance. The compensation can vary significantly depending on the laws and regulations of the country or state where the surrogacy arrangement takes place.
Surrogacy law in India
- Surrogacy is a process in which a woman agrees to carry and deliver a child for another person or couple, who are unable to conceive or carry a child themselves. Surrogacy can be a blessing for many people who wish to have a biological child of their own, but it also raises many ethical, legal and social issues.
- In India, surrogacy has been practiced for decades, but without any proper regulation or oversight. This has led to many cases of exploitation, abuse and trafficking of surrogate mothers and children, as well as legal disputes over the parentage and citizenship of the children born through surrogacy.
- India has also become a hub for commercial surrogacy, where surrogate mothers are paid for their services, often by foreign nationals who seek cheaper and easier options than in their own countries.
- To address these concerns, the Indian government passed the Surrogacy (Regulation) Act, 2021 (SRA 2021), which regulates surrogacy in India and prohibits commercial surrogacy. The Act aims to protect the rights of surrogate mothers and the children born through surrogacy, while also promoting ethical and altruistic surrogacy practices.
Key features of the SRA 2021
- It allows only altruistic surrogacy, where no money or benefit is given or received by the surrogate mother or the intending parents, except for medical expenses and insurance coverage.
- It restricts surrogacy to married Indian couples who have been medically certified as infertile and have no surviving biological or adopted child, except for a child with a mental or physical disability.
- It requires the intending parents to obtain a certificate of eligibility from an appropriate authority before opting for surrogacy.
- It mandates the surrogate mother to be a close relative of the intended parents, between 25 to 35 years of age, married and having at least one child of her own.
- It prohibits any person or organization from advertising or facilitating surrogacy services for commercial purposes.
- It establishes a National Assisted Reproductive Technology and Surrogacy Board and State Assisted Reproductive Technology and Surrogacy Boards to oversee and regulate surrogacy activities in India.
- It provides for the registration and regulation of surrogacy clinics that offer assisted reproductive technology services.
- It ensures the legal parentage and rights of the child born through surrogacy by issuing a certificate of birth in favor of the intending parents.
- It prohibits the abandonment, exploitation or abuse of the surrogate mother or the child born through surrogacy.
- It prescribes penalties for violating the provisions of the Act, ranging from imprisonment to fine.
The SRA 2021 is expected to bring more clarity and transparency to the surrogacy process in India and safeguard the interests of all the parties involved. However, it also faces some criticism and challenges from various stakeholders
Criticism and Challenges
- The Act excludes unmarried couples, single parents, LGBTQ+ individuals and foreigners from accessing surrogacy services in India, which may be seen as discriminatory and violative of their reproductive rights.
- The Act limits the choice of surrogate mothers to close relatives of the intending parents, which may be difficult to find or may create emotional and familial conflicts.
- The Act does not adequately address the psychological, social and health issues faced by surrogate mothers during and after the pregnancy, such as counseling, support groups and postnatal care.
- The Act does not provide for any compensation or welfare measures for surrogate mothers who may suffer from complications or loss of life due to surrogacy.
- The Act does not harmonize with other existing laws related to adoption, inheritance, citizenship and matrimonial disputes that may arise due to surrogacy.
- The SRA 2021 is a landmark legislation that aims to regulate surrogacy in India in a humane and ethical manner. It seeks to prevent the exploitation of surrogate mothers and children born through surrogacy, while also ensuring that surrogacy is accessible only to those who genuinely need it. The Act is expected to bring transparency and accountability in the practice of surrogacy and promote the welfare of all parties involved.
Must Read Articles:
Surrogacy (Regulation) Bill, 2018: https://iasgyan.in/ig-uploads/pdf/6545118.pdf
Q. What are the key legal regulations and requirements surrounding surrogacy in India, and how have they evolved over time to address the concerns and challenges associated with surrogacy arrangements in the country?