Surrogacy Regulation and Oversight Act
Author: Shivangi Singh, a Student of Student of Christ University
Meaning
The word “surrogate” is rooted in the Latin “Surrogate” (to substitute), which means “appointed to act in the place of.” Surrogacy is a process in which a woman, known as a surrogate mother, carries a child for another person or couple who are unable to have a child on their own. The child is then given to the intended or commissioning parents once it is born. Surrogacy is a vital fertility treatment that has become possible due to the advancements in in vitro fertilization (IVF), allowing women who would otherwise be unable to have children to experience motherhood. Without a uterus, with uterine anomalies preventing pregnancies, or with other contraindications for pregnancy or with serious medical problems, to achieve motherhood by the use of an embryo which is created by themselves or through a donor and transferred to the uterus of a gestational carrier. Surrogacy is an agreement between a woman (the surrogate) and another person or a couple (the intended parent/s); when a woman agrees to carry and give childbirth on behalf of another person or couple, it is known as Surrogacy. A woman who carries and gives childbirth to a couple or someone else (the intended parent/s) is also known as a gestational woman or a surrogate. This technique has made it possible for gay couples and single men to achieve fatherhood through the use of sperm and donor oocytes.
Method
TYPES OF SURROGACIES
Generally, four types of surrogacy options are there: –
i) Traditional Surrogacy
In this Surrogacy, the surrogate mother is also the genetic mother of the baby. It is the oldest form of commercial Surrogacy and is common in America. The child may be impregnated by fertility methods of IUI (intrauterine insemination) or conceived naturally or ICI (intra-cervical insemination) performed by infertility doctors at a certified infertility clinic.
ii) Gestational Surrogacy
It is an Assisted Reproductive Technology where embryos are produced through the IVF (In Vitro Fertilization) process in a lab with the biological father’s sperm and the mother’s eggs. Then, the complete embryos are implanted into the surrogate mother’s uterus. In this surrogacy process, a gestational surrogate has no biological link with the kids she carries.
iii) Commercial Surrogacy
In this process, an individual or couple has to pay a fee (except medical and other reasonable expenses) to the woman who carries and delivers their baby. After birth, the baby is turned over to the couple either through a legal or private adoption process. In this process, the surrogate mother is compensated for carrying and delivering the child.
iv) Altruistic Surrogacy
In this process, a woman who carries the baby of the infertile couple receives no financial reward for carrying the baby or the relinquishment of the baby. However, the intended parents pay for the expenses related to the baby’s pregnancy and birth. In other words, a woman who becomes pregnant and bears a child for another person and, after birth, intends to transfer the baby without being compensated monetarily in any way in order to Surrogacy is a part of Altruistic Surrogacy.
Among all these four types of Surrogacy, the traditional surrogacy method has been followed in different countries since the age-old period, which is continuing thereby. However, in the recent period, commercial Surrogacy has been practised globally, legally or illegally. Several ethical issues have been raised against this practice, as well as it is used as an instrument for the exploitation of poor women in society. Considering all these aspects, altruistic Surrogacy is the best method that benefits humanity in the long run. Now, it is necessary to understand the origin and history of Surrogacy in India.
Indian approach
In India, the practice of Surrogacy is not new, although it was previously uncontrolled due to a lack of clear legislation. The successful delivery of the first IVF child, Kanupriya alias Durga, in Kolkata on October 3, 1978, gave India’s population hope for Surrogacy as an alternative reproductive technique (ART). Although commercial Surrogacy was made legal, no bill or explicit rule was created and put into effect, which led to a sharp rise in uncontrolled Surrogacy in India by low-cost fertility clinics and vast numbers of underprivileged women. After their search for the ideal surrogate, many foreign nationals turned to India, which established India as the centre for Surrogacy. Jayshree Wad, an activist and attorney, brought a case before the Supreme Court of India in 2015 to draw attention to the dangers of the commercial surrogacy market. Following careful consideration, the Indian government decided to outlaw Surrogacy for foreigners in 2015. The Surrogacy (Regulation) Bill of 2016 was approved, a new legislation that gave Surrogacy a whole new definition and established regulations. The Surrogacy (Regulation) Bill 2019 was tabled in the Lok Sabha on July 15, 2019, by the Minister of Health and Family, Dr Harsh Vardhan; the Bill defines Surrogacy as a procedure in which a woman bears a child for the benefit of the intended parents. The Bill permits altruistic Surrogacy but outlaws commercial Surrogacy. On the other side, commercial Surrogacy is done for a financial incentive or benefit in addition to the necessary medical bills and insurance coverage throughout the pregnancy. Altruistic Surrogacy does not entail financial remuneration to the surrogate mother (in cash or in-kind). On December 25 2021, President Ramnath Kovind gave the green light to Surrogacy Regulation Bill 2021, which the parliament passed.
THE SURROGACY (REGULATION) ACT, 2021
The Parliament of India enacted the Surrogacy (Regulation) Act 2021 on December 25 2021. This Act speaks explicitly for the constitution of the State Assisted Reproductive Technology and Surrogacy Boards, National Assisted Reproductive Technology and Surrogacy Board and the appropriate authorities appointment for the regulation of the process and practice of Surrogacy and in addition for matters in connection to that or incidental to it.
Section 2 (1) (zd) of the Act defines Surrogacy, which in simple terms means A woman (the surrogate) also known as gestational carrier, carries a pregnancy for someone else (the intended parents). The surrogate does not intend to raise the child as her own.After the child is born, the surrogate transfers parental rights and custody to the intended parents.
Section 2 (1) (ze) and Section 2 (1) (zg) define Surrogacy Clinic and Surrogate Mother, respectively, which are the two critical arms of the Surrogacy system. Apart from several definitions necessary for the effectiveness of the Act, it also makes provisions for the prohibition of Commercial Surrogacy and approval of Altruistic Surrogacy, as well as prescribes punishments for violating the provisions of the Act. The main features of the Act are highlighted below.
i) Key features of the Act
▪ Definition of Altruistic Surrogacy: Section 2 (1) (b) of the Act defines Altruistic Surrogacy, which means the Surrogacy in which no charges, such as fees, expenses, remuneration or monetary incentive of whatever nature, excluding the medical expenses and such other prescribed expenses which are incurred on the surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her representative or her dependents.
▪ Definition of Commercial Surrogacy: Section 2 (1) (g) of the Act defines Commercial Surrogacy, which means that It is not permitted to commercialize surrogacy services or procedures or any of their component services or procedures. This includes activities such as selling or buying human embryos, trading in the sale or purchase of human embryos or gametes, or paying surrogate mothers or their dependents or representatives in exchange for their services, except for medical expenses, prescribed expenses and insurance coverage for the surrogate mother.
▪ Regulation of Surrogacy Clinics: According to the section 3 of the Act, as of its commencement date, all surrogacy clinics must be registered under the Act to legally operate. Any clinic that is not registered cannot engage in any activities related to surrogacy or surrogacy procedures.
▪ Regulation of Surrogacy and Surrogacy Procedures: Section 4 of the Act provides that, on and from the date of commencement of this Act, no place, which also includes a surrogacy clinic, cause to be used or shall be used by any person for conducting Surrogacy or surrogacy procedures, except for gestational or altruistic Surrogacy and not for commercial Surrogacy.
▪ Constitution of the National Assisted Reproductive Technology and Surrogacy Board: The Act establishes a National Board (Section 17) with the responsibility of creating a code of ethics for individuals working in surrogacy clinics (Section 25).
▪ Constitution of the State-Assisted Reproductive Technology and Surrogacy Boards: Section 26 of the Act provides the constitution of the State or Union Territory Boards to review the activities of the appointed appropriate authorities who function in the Union territory or State and recommend appropriate action against them.
▪ Establishment of the National Assisted Reproductive Technology and Surrogacy Registry: Section 15 of the Act speaks for establishing the National Assisted Reproductive Technology and Surrogacy Registry for registration of surrogacy clinics under this Act.
▪ Appointment of the Appropriate Assisted Reproductive Technology and Surrogacy Authority: Section 35 of the Act mandates the appointment of one or more Appropriate Assisted Reproductive Technology and Surrogacy Authorities for the States and Union territories. These authorities are responsible for granting, suspending, or cancelling the registration of a surrogacy clinic. They are also authorized to take appropriate legal action against any person who misuses Surrogacy under Section 36.
▪ Punishment: The Act prescribes stringent punishments for practising sex selection, undertaking commercial Surrogacy, and exploitation of surrogate mothers and children born through Surrogacy. Section 38 prescribes punishment for all these offences with imprisonment for a term extending to 10 years and a fine extending to 10 lakh rupees. Section 39 prescribes punishment for contravention of the Act’s provisions with imprisonment for a term extending to 5 years and a fine extending to 10 lakh rupees. Section 40 of the law mandates punishment for individuals not complying with altruistic surrogacy regulations. First-time offenders may face imprisonment for up to 5 years and a fine of up to 5 lakh rupees, while repeat offenders may face imprisonment for up to 10 years and a fine of up to 10 lakh rupees.
- The key features of the Act are awe-inspiring, especially the provisions for the prohibition of commercial Surrogacy and implementation of altruistic or gestational Surrogacy. However, specific practical difficulties should be removed for effective enforcement of the Act in the long run. A critical analysis of this Act is necessary, but before that, the role of the Indian Judiciary in favouring Surrogacy must be mentioned. The next part of the study shall concentrate on this aspect.
THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021
The Parliament of India enacted the Assisted Reproductive Technology (Regulation) Act 2021 on December 18 2021. This Act explicitly regulates and supervises assisted reproductive technology clinics and banks. The Act focuses on two main goals:
- Preventing the misuse of Assisted Reproductive Technology (ART) services and ensuring their safe and ethical practice. This means the Act aims to regulate ART procedures to avoid exploitation, discrimination, and unethical practices.
- Addressing reproductive health issues through ART. This includes enabling individuals to use ART for parenthood when facing infertility, medical conditions, or social concerns. Additionally, it allows for the freezing of gametes, embryos, or embryonic tissues for future use.
Beyond these primary goals, the Act also covers:
- Regulation and supervision of research and development related to ART.
- Other relevant matters connected to or arising from the use of ART.
Essentially, the Act intends to create a framework for responsible and ethical utilization of ART while addressing various needs and concerns surrounding reproductive health.
Section 2 (1) (a) of the Act:
Assisted Reproductive Technology (ART) refers to any method that aims to achieve pregnancy by:
- Taking sperm or eggs outside the body.
- Introducing the sperm or the resulting embryo back into a woman’s reproductive system.
In simpler terms, ART involves any fertility treatment where sperm or eggs are handled outside the body for the purpose of achieving pregnancy. This includes procedures such as vitro fertilization (IVF), intrauterine insemination (IUI), and gamete intrafallopian transfer (GIFT).Section 2 (1) (b) and Section 2 (1) (c) define Assisted Reproductive Technology Bank and Assisted Reproductive Technology Clinic, respectively, which are the two essential wings of Assisted Reproductive Technology system. Apart from several definitions necessary for the effectiveness of the Act, it also makes provisions for establishing a National Board, State Board and National Registry and prescribes punishments for violating the provisions of the Act. The main features of the Act are highlighted below.
i) Key features of the Act
▪ Safe ART: The Act makes provisions for safe and ethical practice of assisted reproductive technology services in the country.
▪ Pre-Implantation Genetic Testing Mandatory: Section 25 of the Act has provided that Pre-Implantation Genetic testing shall screen the human embryo for known, pre-existing, heritable or genetic diseases.
▪ Constitution of the National Assisted Reproductive Technology and Surrogacy Board: Section 3 of the Act provides the constitution of the National Board to lay down a code of conduct to be observed by persons working at ART clinics and banks under Section 5.
▪ Constitution of the State Assisted Reproductive Technology and Surrogacy Boards: Section 6 of the Act makes provision for the constitution of the State Boards to follow the policies and plans laid down by the National Board for ART clinics and banks in the States under Section 8.
▪ Establishment of the National Assisted Reproductive Technology and Surrogacy Registry: Section 9 of the Act speaks for the establishment of the National Assisted Reproductive Technology and Surrogacy Registry to act as a central database in the country of all the ART clinics and banks under Section 11.
▪ Appointment of the Appropriate Assisted Reproductive Technology and Surrogacy Authority: Section 12 of the Act speaks for the appointment of one or more Appropriate Assisted Reproductive Technology and Surrogacy Authorities for the States and Union territories to grant, suspend or cancel the registration of an ART clinic or bank and to take appropriate legal action against the misuse of assisted reproductive technology by any person under Section 13.
▪ the Act imposes harsh penalties for those who engage in sex selection, sell human embryos or gametes, or operate agencies, rackets, or organizations that deal in the sale, purchase, or trade of human embryos or gametes. Specifically:
- Sex-selective ART: Individuals who practice sex-selective ART face a minimum of 5 years in prison, a fine of at least 10 lakh rupees, or both. In prison 10 year is maximum penalty and a fine of 25 lakh rupees. (Section 32)
- Other violations of the Act:
- First offense: A fine of 5-10 lakh rupees.
- Subsequent offenses: Imprisonment of 3-8 years, a fine of 10-20 lakh rupees, or both. (Section 33)
Conclusion
The unique nature of surrogacy, involving complex interweaving of relationships and responsibilities, has thrust it into the spotlight as one of the most hotly debated areas within assisted reproductive technologies in recent times. To conclude, the importance of surrogacy practice in ART cannot be taken lightly. It has proved to be a blessing and medical marvel for many couples to date. All physicians rendering these services must understand that, with the privilege of producing gestational carrier treatment comes the professional responsibility to practice safely and ethically, mitigating risks for gestational carriers and children born from this practice and, in turn, the risk to our professional autonomy. Arguments of procreative liberty, privacy, and autonomy favour surrogacy, but arguments against it, as discussed, are undue inducements related to compensation, the commodification of women and concern about the best interest of the resulting child. All positives and negatives taken into consideration, we cannot negate the fact that gestational Surrogacy is ray hope for the individuals and couples who could not otherwise build a family outside of adoption. We will risk losing the privilege to provide this vital treatment altogether if a fair and legal middle ground is not agreed upon between the medical practitioner and regulatory bodies and, of course, the intended couples requiring this form of medical services.