INTRODUCTION
Infertility is a quite common issue that is faced by married couples nowadays. The need and a dream of having a child or new baby is a dream for everyone. But reasons like infertility or unable to conceive a foetus can be a barrier to this and thus, a modern approach to tackle this is the introduction of surrogacy. Surrogacy is act done by a surrogate mother for the real parents of the child by impregnating herself to give birth to the child. This process is done by couples who cannot conceive or are infertile, i.e., there is a couple either one or both of them are incapable to give birth to child and thereforth they approach another woman for her womb to carry their child until the delivery is done after the birth and then they take the child considering it to be their natural heir. This is called surrogacy. In India, commercial surrogacy is banned but altruistic surrogacy is allowed because during one point of time commercial surrogacy was at peak, i.e., unfertile couple approached a particular middle man who provided a woman who would become a surrogate mother for that couple who were infertile, and they usually hire those women for surrogacy who were socio-economically weak and underprivileged. Those women were seen as an option for those infertile couple or widow or a divorcee. Thus, to compact commercial surrogacy and to regulate it, the government introduced the surrogacy(regulation)act, 2021
ELIGIBILITY FOR SURROGACY
Surrogacy is a modern approach for married couples who cannot conceive after several trials and for those as well who are infertile. It includes single women who were already married either widowed or divorced can also adopt for surrogacy but a single man either married or unmarried cannot adopt surrogacy. Also, homosexuals cannot legally adopt for surrogacy.
- BIOLOGICALLY INCAPABLE- Married couples who cannot conceive can opt for surrogacy because due to biological reasons like PCOD or PCOS, or due to transverse vaginal septum in which the vagina gets blocked.
- INFERTILITY- In this case either of the couple is infertile due to which they are unable to conceive the child. It is a type of disease either in male or female reproductive organs due to which there is failure to achieve pregnancy within 12 months or because of unprotected sexual intercourse.
- WIDOWS OR DIVORCED WOMEN- Women who are widowed or divorced can also adopt for surrogacy only in case they do not have a biological child. In case they have an own child, they cannot surrogate a child.
IS IT VALID FOR WOMEN TO SURROGATE BEFORE MARRIAGE?
For the couple or the biological mother, it is quite essential or rather it is an essential element that the biological mother of the child should be married. This is because the Indian laws does not allow minors, unmarried women or singles like widows and divorced women who do not have their own biological child to opt for surrogacy to get a child of their own through this modern technique.
Now, for the surrogate mother it is necessary for her to be married and have a child of her own, if this condition goes unfulfilled then the women is not entitled to become a surrogate mother as per the laws prevalent in India. The surrogacy act mentions about the above-mentioned provisions. Thus, the prevalence of the act has restricted the exploitation of surrogate mothers which became quite popular due to commercial surrogacy.
PROVISIONS OF THE SURROGACY ACT, 2022
The surrogacy act was brought by Dr. Harshvardhan, the then minister of health. The act was simply brought up to regulate the surrogacy sector. This act controlled as well as regulated the exploitation of surrogate mothers because they were kept that the stage of exploitation by the couples. Since, most of these surrogate mothers belonged to the lower economic strata, few of the foreign couples started to exploit the mothers. They took undue advantage of them and hence the need of the act as well as few amendments were brought to place.
The following are the provisions of the surrogacy act.
Section 4, clause (ii) states on which ground surrogacy is allowed
- Surrogacy allowed when either one spouse or both of them are infertile.
- Surrogacy allowed for the purpose of altruistic, but it is ban for the commercial purpose.
- Surrogacy allowed only when they ensure that they are not used child for human trafficking
Illustration:
- A and B both have been married for 5 years. And B is a wife who is infertile or incapable to give a birth to the child therefore they have an option to go for surrogacy.
- A and B both are married, and both are infertile to produce a child so they can avail the option of surrogacy
Section 6 says that surrogate mother must be inform about all the side effects as well as the consequences that happens after this procedure. Consent of surrogate mother must be taken before this procedure. Moreover, anytime she can revoke her consent before the procedure get started.
Section 7 mentions that the intending couple to surrogacy cannot leave the child behind that cannot abandon him or her for any reason. The reason may include any medical issues or genetic problems. In any case, the couple is the biological parent of the surrogate child and will be treated as the natural child only, there shall be no discrimination on any ground.
CONCLUSION
If seen from the lens of modernity and as an approach, surrogacy can be considered as a good option. Other options like adoption may not be widely accepted because of the traditional thinking that the adopted child is not their own biological kin, thus the concept of surrogacy serves as a better option here. In my view, the surrogacy act can be amended in a broader way so that it can also include divorced men or single men as well.
Author: Harsh Pasi, a Student of Vivekananda Institute of Professional Studies
