SURROGACY IN INDIA – SOCIAL ISSUE

News: Supreme Court allows surrogacy, strikes down rule banning use of donor gametes

 

What's in the news?

       The Supreme Court has protected the right of parenthood of a woman, suffering from a rare medical condition, by staying the operation of a law which threatened to wreck her hopes to become a mother through surrogacy.

       The government in the Supreme Court has said that same-sex couples and live-in partners are not included in surrogacy and assisted reproduction laws to avoid ‘misuse’ and provide children a ‘complete family’.

 

Government’s stance:

       Same-sex couples and live-in partners are excluded from surrogacy and assisted reproduction laws to avoid ‘misuse.’

       The welfare of the child should be prioritized over any notions of equality among prospective parents or couples.

       No special provisions or additional rights have been granted to same-sex couples and live-in partners despite the decriminalization of their relationships.

 

Surrogacy:

       Surrogacy is defined by law as “a practice whereby one woman bears and gives birth to a child for an intending couple” and intends to hand over the child to them after the birth, as per The Surrogacy (Regulation) Act, 2021 (SRA).

 

Need for Surrogacy Regulation:

       India has emerged as a hub for infertility treatment, attracting people from the world – due to prevailing socio-economic inequities, underprivileged women found an option to ‘rent their wombs’ and thereby make money to take care of their expenses.

       To curb unethical practices - Lack of specific legislation had led to unregulated growth of Commercial Surrogacy services. Hence, to curb unethical practices related to issues of sex selection and exploitation of the surrogate, specific legislation was required.

       To curb the exploitation of women - Due to the absence of legal regulations and lack of implementation, surrogate mothers faced multiple challenges – there had been many cases of death related to surrogacy which neither commissioning parents nor the doctors were ready to take responsibility for.

       Legal Issues - Sometimes, Indian adoption laws or citizenship laws of some other countries also create problems. For example, Germany gives citizenship by mother; this creates issues in determining the nationality of a child.

 

Distinct features of the Surrogacy (Regulation) Act, 2021:

1. Definition of surrogacy: 

       It defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.

2. Regulation of surrogacy:

       It prohibits commercial surrogacy, but allows altruistic surrogacy which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance.

3. Purpose:

       Purposes for which surrogacy is permitted: Surrogacy is permitted when it is:

       For intending couples who suffer from proven infertility.

       Altruistic.

       Not for commercial purposes.

       Not for producing children for sale, prostitution or other forms of exploitation.

       For any condition or disease specified through regulations.

4. Eligibility criteria: 

       The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority ex. District Medical Board.

       Any couple that has ‘proven infertility’ are candidates. The ‘intending couple’ as the Act calls them, will be eligible if they have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.

5. Eligibility criteria for surrogate mother:

To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:

       A close relative of the intending couple.

       A married woman having a child of her own.

       25 to 35 years old.

       A surrogate only once in her lifetime.

       Possess a certificate of medical and psychological fitness for surrogacy.

       Further, the surrogate mother cannot provide her own gametes for surrogacy.

6. Appropriate authority:

       The central and state governments shall appoint one or more appropriate authorities.

       The functions of the appropriate authority includes.

       granting, suspending or cancelling registration of surrogacy clinics.

       enforcing standards for surrogacy clinics.

7. National and State Surrogacy Boards:

       The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively.

8. Parentage and abortion of surrogate child:

       An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority. This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971.

       The surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.

 

Issues with Surrogacy Law:

1. Exclusion:

       The eligibility criteria for legally availing surrogacy excludes a chunk of society like unmarried females, LGBTQ+ persons, live-in couples and single parents who wish to have surrogate child.

2. Paternalistic:

       The altruistic model expects a woman to go through the physical and emotional tolls of surrogacy free of cost and only out of compassion.

3. Autonomy of Woman:

       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.

4. Limitations of Altruistic Surrogacy:

       Having a relative as a surrogate mother may lead to emotional complications.

       Altruistic surrogacy also limits the option of the intending couple in choosing a surrogate mother as very limited relatives

5. Children with Disability:

       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.

 

By focusing on inclusivity, ethics and medical advancements, India can establish a robust legal framework for surrogacy that respects individuals' rights, ensures the well-being of all parties involved, and supports those seeking to start families through assisted reproductive technologies.