The Evolution of Surrogacy Law in India.

The Evolution of Surrogacy Law in India.

Author name: Asmi Kedare, a student at Nari Gursahani Law College.

INTRODUCTION

Surrogacy, the practice of carrying a pregnancy to term for another individual or couple, has gained prominence as a viable option for individuals struggling with infertility or medical conditions that prevent pregnancy. In India, surrogacy was once a booming industry, attracting couples from around the world seeking affordable reproductive services. However, the lack of comprehensive legal regulation led to ethical concerns and exploitation of surrogate mothers. Cases of exploitation, legal disputes, and ethical concerns prompted calls for legislative reforms to regulate surrogacy practices and protect the interests of all stakeholders. In response, the Indian government introduced several changes to surrogacy laws aimed at addressing these issues and ensuring the protection of all parties involved. This article provides a detailed analysis of the evolution of surrogacy law in India, tracing its history, key developments, and current status.

BACKGROUND

Surrogacy in India gained popularity in the early 2000s due to several factors, including the availability of skilled medical professionals, relatively lower costs compared to Western countries, and a large pool of potential surrogate mothers. Commercial surrogacy, where surrogate mothers receive financial compensation for carrying a pregnancy, became widespread, attracting couples from countries where surrogacy was either prohibited or prohibitively expensive.

However, the lack of clear legal regulations governing surrogacy in India raised concerns about the exploitation of surrogate mothers, the rights of children born through surrogacy, and the ethical implications of commercializing reproduction. Cases of exploitation, abandonment, and legal disputes further underscored the need for comprehensive legislation to regulate surrogacy practices in the country.

THE SURROGACY (REGULATION) BILL, 2016

In response to growing concerns, the Indian government introduced the Surrogacy (Regulation) Bill in 2016, aiming to regulate the practice of surrogacy and protect the interests of all parties involved. The Surrogacy (Regulation) Bill, 2016, proposed by the Indian government, aimed to regulate the practice of surrogacy in India and address the ethical concerns and exploitation associated with commercial surrogacy. The bill sought to establish a legal framework for surrogacy arrangements, protect the rights of surrogate mothers and children born through surrogacy, and ensure responsible and ethical practices in the field of assisted reproduction. The key provisions and implications of the bill included:

1. Prohibition of Commercial Surrogacy:

One of the central provisions of the Surrogacy (Regulation) Bill, 2016, was the prohibition of commercial surrogacy. The bill aimed to ban commercial surrogacy arrangements, where surrogate mothers receive monetary compensation beyond medical expenses and insurance coverage. Instead, the bill allowed only altruistic surrogacy arrangements, where surrogate mothers volunteer to carry a pregnancy for intended parents without any financial remuneration.

The rationale behind prohibiting commercial surrogacy was to prevent the exploitation of surrogate mothers and the commodification of human reproduction. By promoting altruistic surrogacy, the bill aimed to ensure that surrogacy arrangements were based on compassion and mutual consent rather than financial transactions.

2. Eligibility Criteria for Intended Parents:

The Surrogacy (Regulation) Bill, 2016, outlined strict eligibility criteria for intended parents seeking surrogacy services. According to the bill, only heterosexual married couples with proven infertility were eligible to enter into surrogacy arrangements. The bill excluded unmarried couples, single individuals, and same-sex couples from accessing surrogacy services.

The eligibility criteria were aimed at ensuring that surrogacy was used as a last resort for couples facing infertility issues and that children born through surrogacy would have a stable family environment. However, critics argued that the restrictive eligibility criteria excluded many individuals and couples who could benefit from surrogacy services, including LGBTQ+ individuals and single parents.

3.  Establishment of National and State Surrogacy Boards:

To oversee and regulate surrogacy arrangements, the Surrogacy (Regulation) Bill, 2016, proposed the establishment of National and State Surrogacy Boards. These regulatory bodies were tasked with monitoring and supervising surrogacy clinics, ensuring compliance with the law, and addressing grievances related to surrogacy practices.

The National Surrogacy Board and State Surrogacy Boards were responsible for granting licenses to surrogacy clinics, conducting inspections, and imposing penalties for violations of the law. The establishment of regulatory boards aimed to create a transparent and accountable framework for surrogacy practices, safeguarding the interests of all parties involved.

4. Rights of Surrogate Mothers and Children:

The Surrogacy (Regulation) Bill, 2016, sought to protect the rights and welfare of surrogate mothers and children born through surrogacy arrangements. The bill mandated that surrogate mothers have access to healthcare facilities, counselling services, and insurance coverage throughout the surrogacy process. It also prohibited the exploitation and abandonment of surrogate mothers, ensuring their physical and emotional well-being.

Furthermore, the bill addressed the legal status of children born through surrogacy, ensuring that they were entitled to the same rights and privileges as biological children. The bill outlined procedures for establishing parentage and citizenship for children born through surrogacy arrangements, providing clarity and legal recognition to their familial relationships.

5. Criticisms and Controversies:

Despite its intentions to regulate surrogacy practices and protect the interests of surrogate mothers and children, the Surrogacy (Regulation) Bill, 2016, faced criticisms and controversies from various quarters. Critics argued that the bill’s restrictive eligibility criteria excluded many individuals and couples from accessing surrogacy services, limiting their reproductive choices and autonomy.

Furthermore, the prohibition of commercial surrogacy was criticized for potentially driving the practice underground, where it could be less regulated and more prone to exploitation. Critics also raised concerns about the lack of provisions for regulating international surrogacy arrangements and ensuring the rights of surrogate mothers in cross-border surrogacy cases.

AMENDMENTS AND UPDATES

In response to the criticisms and feedback received, the Indian government introduced several amendments to the Surrogacy (Regulation) Bill, aiming to address concerns and improve the effectiveness of the legislation:

1. Expansion of Eligibility Criteria: The amended bill expanded the eligibility criteria for intended parents to include unmarried couples, divorced individuals, and widows/widowers, allowing a wider range of individuals and couples to access surrogacy services.

2. Inclusion of LGBTQ+ Individuals: The amended bill removed the requirement for intended parents to be heterosexual married couples, allowing LGBTQ+ individuals and couples to pursue surrogacy arrangements.

3. Regulation of Surrogacy Clinics: The amended bill introduced stricter regulations for surrogacy clinics and agencies, including mandatory registration, adherence to ethical guidelines, and compliance with quality standards.

4. Clarity on Legal Parentage: The amended bill provided clarity on the legal parentage of children born through surrogacy, establishing a legal framework for determining parentage and citizenship in surrogacy cases involving foreign intended parents.

THE SURROGACY (REGULATION) ACT, 2021

In 2023, the Indian government enacted the Surrogacy (Regulation) Act, 2021, marking a significant milestone in the regulation of surrogacy practices in the country. The new legislation aims to address ethical concerns, prevent exploitation, and protect the rights and welfare of all parties involved in surrogacy arrangements. The Surrogacy (Regulation) Act, 2021, introduces several key provisions aimed at regulating surrogacy arrangements, ensuring ethical practices, and safeguarding the rights of surrogate mothers, intended parents, and children born through surrogacy. 

1. Key Provisions:

1. Definition of Surrogacy: The Act defines surrogacy as the practice where a woman agrees to carry a pregnancy to term for another individual or couple, with the intention of handing over the child after birth to the intended parents.

2. Prohibition of Commercial Surrogacy: The Act prohibits commercial surrogacy, allowing only altruistic surrogacy arrangements where surrogate mothers are not paid monetary compensation beyond medical expenses and insurance coverage.

3. Eligibility Criteria for Intended Parents: The Act outlines strict eligibility criteria for intended parents, requiring them to be Indian citizens, married couples with proven infertility, and of a certain age range.

4. Establishment of National and State Surrogacy Boards: The Act mandates the establishment of National and State Surrogacy Boards to oversee and regulate surrogacy arrangements, monitor compliance with the law, and address grievances.

5. Rights of Surrogate Mothers: The Act seeks to protect the rights and welfare of surrogate mothers, ensuring access to healthcare, insurance coverage, and legal recognition of parentage.

6. Legal Parentage of Children Born through Surrogacy: The Act provides clarity on the legal parentage of children born through surrogacy, establishing a legal framework for determining parentage and citizenship.

2. Implications and Impact:

The Surrogacy (Regulation) Act, 2021, has several implications and potential impact on surrogacy practices in India:

1. Regulation of Surrogacy Practices: The Act aims to regulate surrogacy practices, prevent exploitation, and ensure ethical and responsible surrogacy arrangements. By prohibiting commercial surrogacy and establishing eligibility criteria for intended parents, the Act seeks to create a more transparent and regulated surrogacy ecosystem.

2. Protection of Surrogate Mothers: One of the primary objectives of the Act is to protect the rights and welfare of surrogate mothers, ensuring access to healthcare, insurance coverage, and legal recognition of parentage. The Act aims to prevent the exploitation and marginalization of surrogate mothers and promote their well-being.

3. Expansion of Reproductive Choices: While the Act imposes certain restrictions on surrogacy arrangements, such as the prohibition of commercial surrogacy and strict eligibility criteria for intended parents, it also aims to expand reproductive choices by allowing altruistic surrogacy arrangements. The Act recognizes the right of individuals and couples to pursue surrogacy as a means of building their families, provided that it is done in a transparent and ethical manner.

4. Ethical Considerations: The Act addresses various ethical considerations surrounding surrogacy, including the commodification of reproduction, exploitation of surrogate mothers, and the rights of children born through surrogacy. By promoting altruistic surrogacy arrangements and establishing regulatory mechanisms, the Act seeks to uphold ethical standards and values in surrogacy practices.

3. Challenges and Concerns:

While the Surrogacy (Regulation) Act, 2021, represents a significant step towards regulating surrogacy practices in India, it also poses certain challenges and concerns:

1. Access to Surrogacy Services: The Act imposes strict eligibility criteria for intended parents, including Indian citizenship, marriage, and proven infertility, which may limit access to surrogacy services for certain individuals and couples, including single parents and LGBTQ+ individuals.

2. Enforcement and Implementation: The effective enforcement and implementation of the Act pose challenges, particularly in ensuring compliance with the prohibition of commercial surrogacy and the establishment of regulatory mechanisms. Adequate resources, infrastructure, and training will be required to enforce the provisions of the Act effectively.

3. Legal and Ethical Dilemmas: The Act raises various legal and ethical dilemmas, including questions about reproductive autonomy, the rights of surrogate mothers, and the legal parentage of children born through surrogacy. Addressing these dilemmas will require careful consideration and balancing of competing interests and values.

CONCLUSION

The evolution of surrogacy law in India reflects a complex interplay of social, ethical, and legal considerations. From the early days of unregulated commercial surrogacy to the introduction of comprehensive legislation aimed at regulating the practice, the journey has been marked by challenges, controversies, and reforms.

The Surrogacy (Regulation) Bill, with its amendments, represents a significant step towards addressing the ethical concerns and ensuring the protection of the rights and welfare of all parties involved in surrogacy arrangements. As the legislation awaits enactment, stakeholders continue to engage in dialogue and debate to shape the future of surrogacy law in India, striving to strike a balance between reproductive autonomy and ethical governance.