Surrogacy in India

Context: The recent announcement by Tamil film director Vignesh and his wife, actress Nayantara, that they had become parents to twin boys is building up into a controversy, with speculations that the couple opted for surrogacy.

Meaning of Surrogacy:

• Surrogacy is defined as a practice wherein one woman bears and gives birth to a child with the intention to thereafter hand it over to the intending couple.
• While commercial surrogacy is not allowed in India such procedures are allowed only for altruistic purposes with many restrictions on the person seeking to apply under the law.
• No other monetary consideration will be permitted.

The Surrogacy Laws in India:

The parliament in 2021 passed two laws:

The Surrogacy (Regulation) Act

• It governs the practice and process of surrogacy in India.
• It provided a gestation period of ten months from the date of coming into force to existing surrogate mothers’ to protect their wellbeing.

The Assisted Reproductive Technology (Regulation) Act:

• It was enacted for regulation and supervision of the assisted reproductive technology clinics and banks.
• Under the Act, the services can be made available to a woman above the age of 21 years and below the age of 50 years and to a man above the age of 21 years and below the age of 55 years.
• ART procedures include gamete donation, intrauterine insemination, and in-vitro fertilisation or IVF.

Major provisions of the Law:

Eligibility: According to the Surrogacy (Regulation) Act, only a married couple who has a medical condition necessitating gestational surrogacy can avail it. They have to first obtain a certificate of recommendation from a District Medical Board.

Gestational surrogacy’ means:

• She has no uterus or missing uterus or abnormal uterus or if the uterus is surgically removed due to any medical conditions such as gynaecological cancer.
• Intended parent or woman who has repeatedly failed to conceive after multiple In vitro fertilization or Intracytoplasmic sperm injection attempts.
• Multiple pregnancy losses resulting from an unexplained medical reason, unexplained graft rejection due to exaggerated immune response;
• Any illness that makes it impossible for a woman to carry a pregnancy to viability or pregnancy that is life threatening.
• An intending woman who is a widow or divorcee between the age of 35 to 45 years- can also avail the surrogacy.
• The intending couple where the woman is of the age of 23 to 50 years and a man between 26 to 55 years- is eligible under the law.
• Only such intending couples can apply who have not had any surviving child biologically or through adoption or earlier surrogacy.
• An exception has been provided for the couples whose child is “mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure”.
• The intending couple or intending woman is not allowed to abandon the child, born out of a surrogacy procedure, for any reason whatsoever.
• A child born out of a surrogacy procedure is deemed to be a biological child of the intending couple or intending woman.

Eligibility to be a surrogate mother

• A married woman of the age of 25 to 35 years on the day of implantation, with a child of her own, can be a surrogate mother.
• She can act as a surrogate mother only once in her lifetime and with only three attempts of procedure is allowed.
• The woman has to give a written informed consent for the purpose and also be medically and psychologically fit.
• No charges other than medical expenses can be given to the surrogate mother or her dependents or her representative by the intending couple or woman.

Abortion

• A surrogate mother can be allowed abortion during the process of surrogacy only in accordance with the Medical Termination of Pregnancy Act.
• She also cannot disclose the identity of the couple seeking the surrogacy.

Penalty

• Offences under the Act include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc.
• These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakh.

Regulation of Surrogacy Clinics

• No Surrogacy Clinic can conduct or associate with or help in any manner in conducting the surrogacy procedure unless it is registered under the law.

Major Challenges:

• The two Acts have been described as discriminatory against the single man who may desire to become a father via surrogacy or the married woman who already has a child and is desirous of expanding her family through the procedure.
• Disqualifying other persons on basis of nationality, marital status, sexual orientation or age does not pass the test of equality.
• Reproductive autonomy: inclusive of the right to procreation and parenthood, is not within the domain of the State.
• Infertility cannot be compulsory to undertake surrogacy: the certificate to prove infertility is a violation of privacy as part of the right to life under Article 21 of the Constitution.
• India as Surrogacy hub: India has emerged as a hub for infertility treatment, attracting people from the world over with its state-of-the-art technology and competitive prices to treat infertility.

Way forward:

• Surrogacy is legal in India but making it commercial is illegal. It is a humanitarian act and is recognized by law.
• Surrogacy comes under the reproductive choices of women and it is included as a fundamental right under the purview of Article 21 of the Indian Constitution.
• Prior to the coming into effect of the laws, the Indian Council of Medical Research had issued a ‘Code of Practice, Ethical Consideration and Legal Issues’ for clinics involved in such procedures.
• The guidelines said surrogacy by assisted conception should normally be considered only for patients for whom it would be physically or “medically impossible” to carry a baby to term and that a surrogate mother should not be over 45 years of age.

Source: Indian Express

Previous Year Question

Q.1) Which of the following statements is/are correct regarding the Maternity Benefit Amendment Act, 2017?  (2019)

1. Pregnant women are entitled for three months pre-delivery and three months post-delivery paid leave.
2. Enterprises with creches must allow the mother minimum six creche visits daily.
3. Women with two children get reduced entitlements.

Select the correct answer using the code given below.

1. 1 and 2 only
2. 2 only
3. 3 only
4. 1, 2 and 3