Surrogacy Regulation Act, 2021

Context: Petitioners in the Delhi High Court questioned why marital status, age, or gender were the criteria for being allowed to commission or not commission surrogacy in India.

What is the Surrogacy Act, 2021?

• The Act sought to regulate the surrogacy in India
• The Act defines ‘surrogacy’ as a practice where a woman undertakes to give birth to a child for another couple and agrees to hand over the child to them after birth

Why is there a need for a Surrogacy Act in India?

• India has emerged as a hub for infertility treatment, attracting people from the world – due to prevailing socio-economic inequities, underprivileged women found an option to ‘rent their wombs’ and thereby make money to take care of their expenses
• By 2012, India had become the ‘surrogacy capital’ of the world with surrogacy tourism valued at approximately $500 million annually.
• Thus, it has become more than imperative to regulate surrogacy in the country.
• To curb unethical practices: Lack of specific legislation had led to unregulated growth of Commercial Surrogacy services. Hence, to curb unethical practices related to issues of sex selection and exploitation of the surrogate, specific legislation was required.
• To curb the exploitation of women: Due to the absence of legal regulations and lack of implementation, surrogate mothers faced multiple challenges – there had been many cases of death related to surrogacy which neither commissioning parents nor the doctors were ready to take responsibility of.
• Legal Issues: Sometimes, Indian adoption laws or citizenship laws of some other countries also create problems. For example, Germany gives citizenship by mother; this creates issues in determining the nationality of child.
• In 2008, a Japanese couple began the process with a surrogate mother in Gujarat, but before the child was born they split and there were no takers for the child.
• In 2012, an Australian couple commissioned a surrogate mother, and arbitrarily chose one of the twins that were born.
• Ethical Issues: Surrogacy leads to commoditization of the child. Renting of the womb breaks the bond between a mother and the child, interferes with nature

Key Provisions of the Act

• The Act prohibits commercial surrogacy, but allows altruistic surrogacy.
• Eligibility criteria for intending couple: Any couple that has ‘proven infertility’ are candidates. The ‘intending couple’ as the Act calls them, will be eligible if they have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
• Eligibility criteria for surrogate mother: Only a close relative of the couple can be a surrogate mother, one who is able to provide a medical fitness certificate. She should have been married, with a child of her own, and must be between 25 and 35 years, but can be a surrogate mother only once.
• Appropriate authority: The central and state governments shall appoint one or more appropriate authorities. The functions of the appropriate authority include;
• granting, suspending or cancelling registration of surrogacy clinics;
• enforcing standards for surrogacy clinics;
• National and State Surrogacy Boards: The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively.
• Parentage and abortion of surrogate child: An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority. This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971.
• The surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.

What are the controversies behind the Act?

• Exclusion: The eligibility criteria for legally availing surrogacy excludes a chunk of society like unmarried females, LGBTQ+ persons, live-in couples, and single parents who wish to have surrogate child.
• Paternalistic: The altruistic model expects a woman to go through the physical and emotional tolls of surrogacy free of cost and only out of compassion.
• Autonomy of Woman: The banning of commercial surrogacy moves from the rights-based approach to a needs-based approach, thus removing the women’s autonomy to make their own reproductive decisions and right to parenthood.
• Limitations of Altruistic Surrogacy: Having a relative as a surrogate mother may lead to emotional complications. Altruistic surrogacy also limits the option of the intending couple in choosing a surrogate mother as very limited relatives
• Children with Disability: The Act considers having children with physical and special needs as childless. It further encourages considering surrogacy if the couple has a child with a life-threatening disorder. This clause directly violates the right of the children with the disability, thus denying them treatment with dignity.

As India is one of the major hubs of these practices, the Act is certainly a step in the right direction. More reforms are still needed recognize the rights of all stakeholders involved. The law needs to keep up with rapidly evolving demands of morality and societal changes.

Source: The Hindu