A Deep Dive into India’s Controversial Surrogacy Laws


A Deep Dive into India’s Controversial Surrogacy Laws

India’s surrogacy laws, as outlined in the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), have ignited a fierce and ongoing debate. These laws have created a perplexing scenario where the dream of having a biological child through surrogacy seems almost unattainable for a wide range of prospective parents. Single males (unmarried, divorced, or widowed), unmarried females, transgender individuals, homosexuals, live-in couples, married couples with children, and even married couples with a healthy and fertile wife who wishes to avoid pregnancy face significant restrictions. Additionally, these laws prohibit the transfer of gametes, zygotes, and embryos outside India for personal use without prior authorization, making access to surrogacy abroad equally challenging. The constitutional validity of these surrogacy laws is under scrutiny in the Supreme Court, but the perplexing nature of these regulations leaves many questioning the government’s true intentions.

One of the most contentious elements of India’s surrogacy laws is the comprehensive ban on commercial surrogacy, with severe consequences for those who contravene it. Engaging in commercial surrogacy is now considered a non-bailable and non-compoundable offense, potentially leading to imprisonment for up to ten years and fines of up to ten lakh rupees. This stringent approach is meant to eradicate profit-driven surrogacy arrangements and ensure that surrogacy is altruistic in nature.

The surrogacy laws also set strict eligibility criteria for those seeking surrogacy, recognizing only “intending couples” and “intending women.” However, the path for these eligible parties is riddled with challenges. They must find a surrogate who is married, falls within a specific age range, has previously given birth, has never served as a surrogate before, is willing to carry the pregnancy without providing her own eggs, and is willing to do so altruistically – without any form of financial compensation except for necessary medical and insurance expenses.

In practice, finding a surrogate willing to altruistically lend her womb to intending couples or women for childbirth and then hand over the child, especially if she has no familial ties to them, is exceedingly rare. Experience has shown that surrogates often expect financial compensation for their services. Both the intending couple/woman and the potential surrogate may not fully comprehend the rationale behind a law they find puzzling, and the threat of legal repercussions is unlikely to deter them.

While the law may invalidate commercial surrogacy agreements, Section 42 of the Surrogacy Act offers an escape route for surrogates. This provision presumes that surrogates were coerced by intending couples to provide surrogacy services for unauthorized purposes, allowing them to challenge agreements. Allegations of coercion, misconception, or misrepresentation can trigger a criminal investigation, reminiscent of issues surrounding Section 498-A (cruelty) and Section 377 (unnatural sex) of the Indian Penal Code.

A Deep Dive into India's Controversial Surrogacy Laws

Furthermore, the surrogacy laws consider children born through surrogacy as the biological offspring of the intending couple. The law requires the surrogate mother to hand over custody to them. This poses significant questions about the welfare of the child when the intending couple faces legal consequences and potential imprisonment for violating surrogacy laws.

India’s surrogacy laws, while well-intentioned in addressing the issues of commercial surrogacy, raise complex questions and challenges. They struggle to strike a balance between regulating surrogacy and providing accessible pathways for those in need. Rather than an outright ban on commercial surrogacy and stringent restrictions on access, a more comprehensive approach that addresses the commercial aspects while ensuring safe, ethical, and equitable surrogacy practices may be necessary. The government should consider comprehensive reforms that offer a more pragmatic solution to the complexities of surrogacy. Merely banning commercial surrogacy or making access to gestational surrogacy illusory is unlikely to achieve the intended outcomes.

Author: Manasvi Vaid, Student at Symbiosis Law School, Noida

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