Explained: Surrogacy Law in India

Surrogacy has become a widely accepted option for individuals and couples seeking parenthood. However, navigating the legal and ethical issues of Surrogacy Act remains a challenge. 

The Surrogacy Act of 2021 aims to regulate various aspects of surrogacy, including eligibility criteria, rights of the surrogate mother and child, and financial implications. 

This review of the act describes the legal nuances, health implications, and societal norms surrounding surrogacy. It also discusses the need for modifications to ensure fairness, inclusivity, and protection of fundamental rights.

Definitions

• Surrogacy - Surrogacy includes an agreement where a woman (the surrogate) consents to carry and deliver a child for another person or couple (the intended parent/s). The surrogate, also known as a gestational carrier, conceives and bears a child on behalf of the intended parent/s.
• Intended Couples - The “intending couple” means a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy. 

Surrogate mothers must meet criteria such as age, marital status, and physical and mental health. Also, surrogacy requires a medical necessity certificate from the District Medical Board as mentioned under the law.

Analysis of the surrogacy act of 2021:

Strengths of the surrogacy act

A. Regulatory progress - It constitutes an important step towards regulating surrogacy in India, providing a legal framework for the practices that were unregulated earlier relating to surrogacy.

B. Protection of rights - The act defines several key aspects relating to surrogacy, such as eligibility criteria and the rights of the surrogate, providing a certain degree of legal protection to parties involved.

C. Transparency - The act also mentions transparency in the surrogacy process, which can help prevent the exploitation and abuse of surrogate mothers.

D. Ethical approaches - It lays down some ethical guidelines for surrogacy, promoting responsible and ethical implementation within the industry.

Shortcomings of the surrogacy act

A. Need for rectification - The need for rectification arises from the vague language in the act to prevent misinterpretation or misuse of the law)(One example of the need for rectification due to vague language in the act is the ambiguity surrounding the definition of "close relative" about eligibility criteria for surrogacy, which could lead to varying interpretations and potential misuse of the law.

B. Fairness and inclusivity - It requires some major modifications to straighten the principles of fairness, inclusivity, and protection of fundamental rights, ensuring that all parties involved are treated fairly and their rights are secured.

C. Implementation challenges - The implementation of the Surrogacy Act, of 2001 may face challenges such as lack of awareness, regulatory oversight, resource constraints, legal and ethical issues, enforcement challenges, and cultural and social factors. requiring transparent mechanisms and resources to ensure effective implementation of the law.

D. Accessibility - It is a very difficult task to ensure that the act is accessible to all individuals and couples, including those from backward communities.

What is the altruistic model?

The altruistic model is a form of surrogacy where the surrogate mother receives no monetary compensation apart from the coverage for medical expenses and insurance during the pregnancy.

Challenges of the altruistic model

• Forced labor concerns: The ban on commercial surrogacy might create a situation where women are compelled to become surrogate mothers against their will, possibly due to financial reasons. To address this, there should be fair compensation for surrogate mothers to prevent exploitation and ensure their well-being.

• Health implications: The act should provide clear guidelines on the health risks involved for both the surrogate mother and the fetus. This includes ensuring access to comprehensive healthcare services throughout the surrogacy process, to safeguard the health of all parties involved.

• Discrimination based on disability: The current guidelines are unclear and may lead to discrimination against individuals with disabilities. It is important to have inclusive regulations that protect the rights of all individuals, including those with disabilities, involved in the surrogacy process.

What is commercial surrogacy?

The surrogacy or related procedures conducted for a monetary benefit or reward (whether in cash or kind) which is more than the basic medical expenses and insurance coverage is called commercial surrogacy.

Challenges of commercial surrogacy

• Implications - The ban on commercial surrogacy has vital implications for procreative medical tourism, as it limits opportunities for fertility tourism and economic prospects for surrogate mothers. 
• Fair compensation - To address the issue of fair compensation, alternative solutions such as short-term disability insurance coverage and the provision of legal representation for surrogate mothers could be explored. 
• Legal recognition - It is crucial to address the parity in the legal recognition of different methods of family-making. This includes avoiding the establishment of hierarchies based on biological relatedness, and ensuring that all individuals have equal access and recognition regardless of the method chosen to build their families.

Surrogacy act for unmarried women

During a recent petition of a 44-year-old unmarried woman who approached the court seeking permission for surrogacy, which is not allowed under the law, a bench of Justices B V Nagarathna and Augustine George Masih said a single woman bearing a child outside marriage was not the rule in Indian society, but an exception.

Justice Nagarathna observed "It is a norm here to become a mother within the institution to survive or not in the country? We are not like Western countries The institution of marriage has to be protected. You can call us and tag us conservative, and we accept it" 

• The Supreme Court has raised its concerns about protecting the institution of marriage, against the practices in the western part of the world where children are often born outside marriage.
• The Surrogacy Regulation Act permits only widowed or divorced women aged 35 to 45 to undergo surrogacy, excluding single unmarried women.
• A 44-year-old unmarried woman challenged the validity of Section 2(s) “intending woman” of the Surrogacy (Regulation) Act, claiming it violated her fundamental and human rights.
• The court suggested some alternatives such as adoption or marriage to the petitioner.
• Addressing the significance of societal norms, describing that while science has advanced, social norms must also be considered.

Conclusion

The Surrogacy Act, 2021 is a significant step towards the regulation of surrogacy in India but it needs to be fixed. 

Currently, the act shifts from a right-based to a need-based approach, excluding certain groups and limiting reproductive autonomy. The ban on commercial surrogacy raises concerns about exploitation and discrimination. 

Future changes should make the law clearer about surrogacy, making sure it's fair to everyone involved and protects their rights.

Nancy Sharma is a legal researcher and writer. She is the Founder of The LawGist, an online portal explaining legal news.