Surrogacy (Regulation) Act, 2021

Introduction

Even today the Indian society is deeply rooted towards it ethical values and the customs which were continued from times immemorial are still in practice. Marriage is a social institution and a sacred relation between the couples since the period of Vedas. Marriage in Indian society is socially approved practice and is considered to continue for the seven Janam’s. Marriage is done for the fulfilment of certain purposes such as redemption, companionship, and procreation of children. After the marriage there are a lot of responsibilities with the married couple to maintain the house, family and most importantly to continue their lineage.

To continue the lineage there are multiple ways to procreate the children. One is the natural process through which the women give birth to a child. But unfortunately, there are some couples who are not able to conceive and become parents. All thanks to the improvement done in the field of medical science because of the rapid development in the scientific and technological development in obstetrics and gynaecology, surrogacy is allowing the infertile couples to make their dream come true and become parents. Other than natural reproduction the other method of reproducing children is In Vitro Fertilisation (IVF), Intracytoplasmic sperm injection (ICSI), Artificial insemination, Fertility preservation, Stem cell therapy, Egg donation, Surrogacy, Intrauterine insemination (IUI), Frozen embryo transfer (FET), etc. According to World Health Organisation (WHO) reports it shows that one out of every 6 adult population across the world is experiencing infertility that is roughly around 17.5%. Whereas in 2019-2020 The National Center for Biotechnology Information (NCBI) provides that there are around 39.3% women of reproductive age (the age between 25- 29 years of age) and out which around 8.9% women are infertile that means they are unable to conceive child through natural process.

The main reason behind increasing infertility rate is due to age, genetics, lifestyle since now the people are of the view to give birth after they have settled in their life and ready to bear a child and take care of the child, inherited disorders, increased us e of contraceptives, medical conditions such as Polycystic Ovary Syndrome (PCOS), endometriosis, male factor infertility, Sexually Transmitted Diseases, and environmental aspects, etc.

The present article discusses briefly about surrogacy, types, historical development which led to the implementation of Surrogacy (regulation) Act, 2021 and the challenges faced in the current Act.

Historical development of the Surrogacy (Regulation) Act, 2021

The concept of Surrogacy is not new to Indian society it has been in practice from mythological period. The evidence of the same is given in our history that is Balram the elder brother of Lord Krishna who was transferred from the womb of Devaki to Rohini’s who was the first wife of Vasudev to protect him from Devaki’s brother, Kansa. But at that time there was no law for surrogacy.

In year 2002 surrogacy was legalised in India. During this time commercial surrogacy was legalised and India became the capital of surrogacy in the world. The reason behind India becoming capital was due to increasing poverty. As in commercial surrogacy the surrogate mother is provided with financial assistance other than the expenses incurred on the gestational carrier. This legalisation has led to the exploitation of women and their dignity is also harmed with this practice.

The Indian Council of Medical Research issued certain rules in year 2005 for surrogacy those were firstly, the monetary amount is to be decided by the parties involved in the process, secondly, the rules also said that the surrogate mother is not allowed to provide her eggs required for the procreation of the baby and lastly it asked the gestational carrier to abandon all the parental rights after giving birth to the baby.

The reason behind creation of Surrogacy (Regulation) Act, 2021 is to completely ban commercial surrogacy and to protect the rights of surrogate women, intending couple and the baby being born through surrogacy. This was done due to the illegal and unethical practices being conducted in the name of surrogacy. Due to urgent requirement to make changes to the current law the Indian Parliament was compelled to frame laws to protect all the people involved in the process of surrogacy. The said act was enacted on 25th December, 2021 and with this enactment in force the earlier 2002 regulation was replaced. The act has also disallowed the selling or purchasing of gametes and embryos.

With Surrogacy (Regulation) Act, 2021 it was also accompanied by another act called Assisted Reproductive Technology (Regulation) Act, 2021.

Surrogacy

The word surrogacy is derived from Latin word “subrogate” which means to “accept in place of” or “a substitute”. Surrogacy is an arrangement in which a woman agrees to carry and give birth to a child on behalf another person or intending couple.

In simple terms surrogacy is an alternative reproductive technology used by the couple when they are unable to conceive the child. In surrogacy the couple opt for third party who is woman to give her womb to help the couple become parents. The women who is providing her womb is called as surrogate mother. In the womb of the women the fertilised egg is inserted. In surrogacy the couple is bound to provide the surrogate mother with medical insurance, medical expenses incurred during the time of pregnancy and any other expenses incurred at that time.

The Surrogacy (Regulation) Act, 2021 defines surrogacy under section 2 (1) (zb) as a practice whereby one woman bears and gives birth to a child for an intending couple with the intention to give the child back the intending couple after the birth.

Section 2 (1) (zg) defines “surrogate mother” as a woman who is ready to bear the child and the who is genetically related to the intending couple through surrogacy by implantation of embryo in her womb but there are certain conditions which needs to be fulfilled as provided under section 4 of the act.

The term “intending Couple” has been defined under section 2 (1) (r) of the abovesaid act as a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy. In others words intending couple is a couple who is not medically fit to conceive the child which compels the couple to take help of surrogacy to become parents.

“Intending women” has been defined under section 2 (1) (s) of the act as an Indian woman between the age of 35 to 45 years who intends to avail surrogacy.

Methods of surrogacies

Generally, there are majorly two methods of doing surrogacy namely:

Traditional Method: – This method is known by various name such as genetic, partial or straight surrogacy. This method may be defined as a process in which the surrogate mother uses her own and artificially inseminated with sperm of the father or the donor. By this process the surrogate becomes the genetical parent of the child including the intending father. This process is cheaper than the gestational surrogacy.
Gestational Surrogacy: – In this method the intending couple goes for artificial method for the embryo to be created and inserted in the uterus of the surrogate mother. In this the surrogate mother is not genetically related to the baby. In this process the eggs and sperm of the intending couples are fertilised artificially using the method called In Vitro Fertilisation.

Classification of surrogacy

The Surrogacy (Regulation) Act, 2021 was made to completely prohibit commercial surrogacy whereas the act provides the authentication of altruistic surrogacy. So, surrogacy can be classified into two categories:

Commercial Surrogacy: – It is defined under section 2 (1) (g) of Surrogacy (Regulation) Act, 2021 as a surrogacy service including buying or selling of human embryo or trading in the sale or purchase of human embryo or selling or buying or trading in the service of surrogate motherhood by giving her monetary incentive in cash or in kind to the surrogate mother, or her representative except the medical expenses incurred on the surrogate mother and also her insurance coverage. It is the type surrogacy in which the third party who is a woman is not inherently related to the couples but is ready to carry the child for giving birth and after delivery she would be giving the child to the intending parents. The practice of commercial surrogacy was legal in India between the period from 2002 to 2015. The reason behind the increased number of women intending to be surrogate mother was that the woman wanted to make a fair living by renting their womb to the unprivileged couples who are unable to give birth. In this type of surrogacy an agreement is made between the intending couples and the surrogate mother which includes the pre – determined amount to be paid to the woman. The amount shall also include all the expenses which would be incurred during the process such as medical, legal, travel, etc. But, the Surrogacy (Regulation) Act, 2021 has completely banned commercial surrogacy due to the exploitation of both woman and the child being born out of the process.
Altruistic Surrogacy: – This type of surrogacy is legally accepted under Surrogacy (Regulation) Act, 2021. This is defined under section 2 (1) (b) as a surrogacy in which no monetary incentive of any kind is given to the surrogate mother except the medical expenses incurred on her and it also includes the insurance of the surrogate mother or gestational carrier. This amount may be given to surrogate mother, or her representative or her dependents. In this the main aim is to help the intending couple to become parents and there are no monetary benefits to the gestational carrier.

Regulation of surrogacy Clinics

Section 3 of the act says that on and from the commencement of this act only clinics which are registered under this act are allowed to conduct activities related to surrogacy.

The act prohibits the surrogacy clinics, paediatricians, gynaecologist, embryologists and registered medical practitioners with following:

From indulging in surrogacy in any way;
Surrogacy clinics not to appoint any person who does not have qualification as per the requirement;
No surrogacy procedure to conducted other than the place registered under this act;
No such person shall publish, promote, or canvass any act which is aims to induce a woman to act as surrogate mother;
It also prohibits the conduct or promotion of abortion without the written permission of surrogate mother and authorisation of the same by the appropriate authority concerned the same must follow Maternity Termination of Pregnancy Act, 1971;
It prohibits from storing human embryo or gamete; and
It prohibits the intending couple to conduct sex selection for surrogacy.

Regulation of surrogacy and its procedure

Section 4 of the Surrogacy (Regulation) Act, 2021 provides for the regulation of surrogacy and its procedure. The section says that on and from the date of commencement of this act no place including a surrogacy clinic shall be used or caused to be used by any person for conducting surrogacy unless for the purpose provided in clause (ii) and all the conditions being satisfied in clause (iii).

Clause (ii) of this section provides that the surrogacy procedure shall be conducted except for the following purposes:

Medical condition necessitating gestational surrogacy. But the intending couple or intending woman must obtain a certificate of recommendation from the Board on an application made by said person in the prescribed manner.
It is only done for the altruistic surrogacy purpose.
It is not for purpose of commercialisation of surrogacy.
Child so provided are not for sale or any other kind of exploitation.
Any other condition or disease as specified by regulations made by the Board.

Clause (iii) says that no surrogacy procedure shall be under- taken unless the director in-charge of surrogacy clinic or the person qualified to do so are satisfied for the reasons to be recorded in writing that following conditions are fulfilled:

Medical certificate in favour of intending couple or intending woman necessitating gestational surrogacy from a District Medical Board.
An order of parentage of child being born out of the process of surrogacy needs to be passed by Magistrate of First Class or above on the application made by intending couple or intending woman and surrogate mother which shall act as a birth affidavit of the child so born.

Eligibility for surrogate mother:

Section 4 of the act provides that surrogate mother should in order to be eligible for the process should have certificate issued by appropriate authority on the fulfilment of the following conditions:

Firstly, the woman should be married and should have her own child and she should be between the age of 25 to 35 years on the implementation than she can act as surrogate mother.
Secondly, woman should be wiling.
Thirdly, the surrogate mother should not provide her own gamete.
Fourthly, the woman can act as surrogate mother only once in her lifetime.
Lastly, the woman should be medically and psychologically fit for surrogacy by a registered medical practitioner.

Eligibility for intending couple:

It says that the intending couple is to be issued a separate certificate by the appropriate authority on the fulfilment of the following conditions:

Intended couple are married and between the age of 23- 50 years in case of female and 26- 55 years in case of male on the day of certificate.
The intending couple should not be having any surviving biological child or through adoption or through surrogacy earlier. But this provision shall not affect if the intending couple have a child who is mentally or physically challenged or suffer from life threatening disorder with permanent cure which is approved by appropriate authority with due medical certificate from District Medical Board.
And any such other conditions may be specified by the regulation.

Section 5 of the cat says that no person including the relative or husband of the surrogate mother or intending couple or intending woman shall encourage to conduct any surrogacy except for the purpose specified in section 4 of the said act.

Criteria for conducting the process of Surrogacy:

Section 6 of the act says that no person shall seek or conduct surrogacy procedure unless he has told her all side effects and after effects of such procedure to the surrogate mother in the language understood by her and obtained in the prescribed form written informed consent of the surrogate mother. but, the surrogate has an option of withdrawing her consent before the implantation of embryo in her womb.

Prohibition to abandon the child

Section 7 of the cat says that the child shall not be abandon after the birth by this process by the intending parent or intending woman within India or outside for any reason other than

Genetic defect;
Birth defect;
Any other medical condition;
Sex of the child;
Conception of more than one baby.

Prohibition of abortion

Section 10 says that no person, organisation, surrogacy clinic, laboratory, or clinical establishment of any kind shall force the surrogate mother to abort at any stage of surrogacy except in such conditions as may be prescribed.

Challenges

Exploitation of the Surrogate Mother and Child

Care must be taken to ensure that poor women are not exploited under surrogacy arrangements and that the rights of children are protected. However, the current legislation fails to balance both interests effectively.

Reinforcement of Patriarchal Norms

The act reinforces patriarchal norms from traditional eras. It does not acknowledge the economic value of women’s work and directly affects women’s fundamental rights to reproduce as guaranteed under Article 21 of the Constitution.

Denial of Legitimate Income for Surrogates

Banning commercial surrogacy has deprived surrogate mothers of a legitimate source of income, limiting women’s participation in surrogacy. Not everyone is willing to undergo pregnancy and childbirth without compensation.

Emotional Complications

In altruistic surrogacy, a close relative of the couple must serve as the surrogate mother. This arrangement can create an emotional bond between the child and the surrogate mother, potentially affecting the relationship between the intended parents and the surrogate. It also limits the couple’s options for choosing a surrogate, as it is often challenging to convince a relative to take on this role.

Lack of Third-Party Involvement

Altruistic surrogacy excludes third-party involvement, which can be beneficial in many cases. Third parties can assist both the intended parents and the surrogate mother in navigating the complex surrogacy process. They can also provide financial support, which is not possible in altruistic surrogacy since all medical expenses are borne by the intended parents.

Case laws

BABY MANJHI YAMADA v. UNION OF INDIA

In this case, a Japanese couple, Dr. Ikufumi Yamada and his wife, travelled to India for surrogacy. They hired an Indian woman from Gujarat as the surrogate mother. However, the couple divorced due to matrimonial disputes. The father sought custody of the child, but Indian law prohibits single fathers from adopting a girl child. As a result of this the custodial rights of girl child were given to child’s grandmother by Justices Arijit Pasayat and Mukundakan Sharma. This case highlighted the need for regulated surrogacy laws in India.

JAN BALAZ v. ANAND MUNICIPALITY

A German couple employed Marthaben Immanuel Khrishti as a surrogate mother, resulting in the birth of twins. The couple, working in the UK, required Indian passports for their twins to travel. Due to ongoing litigation regarding the twins’ citizenship, passport authorities denied issuance. As Germany lacked surrogacy laws, the Supreme Court did not grant passports but provided exit permits for the twins. German authorities allowed the couple to adopt the children and pursue their rights.

SUCHITA SRIVASTAVA v. CHANDIGARH ADMINISTRATION

The court ruled that Article 21 of the Constitution guarantees personal liberty, including a woman’s right to reproductive choices. This encompasses the right to carry a pregnancy to term and to give birth. These rights are integral to a woman’s privacy, dignity, and bodily integrity.

JUSTICE K.S. PUTTASWAMY AND ANR v. UNION OF INDIA

The court held that requiring an infertility certificate from the district medical board infringes on the right to privacy and is morally and ethically questionable. This fundamental right must be protected, emphasizing that such compulsory certification is a violation of individual privacy.

Conclusion

It can finally be said that Surrogacy (Regulation) Act, 2021 has at its best tried to avoid the exploitation of children being born through surrogacy and the surrogate mother. This act protects the interest and rights of all the parties involved in the process. It only approves for conducting the process of surrogacy after the certificate is issued by the appropriate authority which must is issued for both intending couple or intending woman and the surrogate mother separately. This act only allows only altruistic surrogacy as legal and has banned commercial surrogacy but this somehow has affected the life of surrogate mother as they were that woman who were poor and did this to maintain the standard of life. This act also does not allow the same sex couple to enjoy parenthood through the process of surrogacy which is a violation of article 21 of Indian constitution. This act also prohibited the surrogate mother from donating her gamete.

But the amendment to the laws have been done in Surrogacy (Regulation) bill, 2022 which allows the surrogate mother to donate her gamete.

Frequently asked questions

What is surrogacy?

Ans. Surrogacy may be defined as an arrangement in which the female gamete and male sperm are fertilised artificially in lab and then the embryo so made is inserted in the woman who is intending to give her womb for the birth of the child.

What was the need for Surrogacy (Regulation) Act, 2021?

Ans. The need behind the act to made for surrogacy is to avoid the exploitation of surrogate woman and the child being born from the process of surrogacy.

What is the difference between commercial and altruistic surrogacy?

Ans. The major difference between commercial surrogacy and altruistic surrogacy is that in commercial surrogacy the surrogate mother is provided with monetary incentive other than the medical expenses or other expenses incurred in the process whereas in case of altruistic surrogacy the surrogate mother should a relative of the intending couple or intending woman and she is only provided with expenses so incurred in the process of giving birth and also she is provided with health insurance and no other incentive is provided to her.

What is penalty or punishment for violation of Surrogacy (Regulation) Act, 2021?

Ans. The person who is found to be violating the laws provided under Surrogacy (Regulation) Act, 2021 shall be imprisoned for a period of 10 years and a fine of Rs 10,00,000 shall be imposed.

Author: Riddhi Garg

Student At College: Kurukshetra University