This Article is written by Dixita Baishya, a Third Year Law Student of University Law College, Gauhati University

Abstract

This article looks at the changing environment of surrogacy in India, especially in light of the Surrogacy (Regulation) Act of 2021. With advances in reproductive technology, surrogacy has arisen as a viable alternative for infertile individuals and couples, allowing people of both genders to become parents. However, legal and ethical concerns remain in the application of surrogacy practices. The 2021 Act creates a framework for altruistic surrogacy by defining eligibility criteria for intended parents and surrogates while protecting the rights of all parties involved. This article discusses the legal obligations, rights, and responsibilities of intended parents, the requirements for being a surrogate, and the rights of surrogate offspring. Furthermore, it covers recent revisions and historic decisions that have transformed the surrogacy landscape in India, underlining the importance of ethical standards in the surrogacy process.

Keywords

Surrogacy, India, Surrogacy Regulation Act 2021, intended parents, surrogate mother, altruistic surrogacy, legal framework, rights of children, reproductive technology, ethical challenges.

Introduction

Infertility is an emerging healthcare issue in both men and women due to various factors like age, genetics, lifestyle, and environmental issues. Due to increasing rates of infertility, there is a need for alternative methods to help people to become parents. Surrogacy has emerged as a viable option due to advancements in artificial reproductive procedures. [1]. Apart from infertility, the acceptance of surrogacy has also been influenced by shifts in social standards. Parenthood is no longer limited to the heterosexual community in today's progressive society, where both men and women acknowledge infertility as a medical condition.

People of both genders can now become parents because of advancements in artificial reproductive techniques, and surrogacy is becoming a competitive alternative. [2] [3]. The technique of using a woman's womb to carry a foetus until it is born so that another person might raise it is known as "surrogacy" [4]. It comes from the Latin word "subrogate," which means "a substitute" or "accepted to act in place of." As per American Law Reports, surrogacy is typically defined as “...a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights after the child's birth” [5]

Eligibility requirements for intended parents wishing to engage in surrogacy have been created by India's new surrogacy law of 2021. The intended pair must meet certain age requirements and be legally married, according to the legislation. The male partner must be between the ages of 26 and 55, while the female partner must be between the ages of 23 and 50. They must also bring forth a willing surrogate who will be married and have at least one child of her own, and they must not have any biological children from a previous marriage. Furthermore, an unmarried woman may also be eligible to be considered an intended parent if she is between the ages of 35 and 45 and is either married, divorced, or widowed. However, she cannot use a surrogate if she has a living child from a prior marriage.

Legal framework for Surrogacy in India

To regulate surrogacy in the nation, the Indian government passed a new surrogacy law in 2021. The Indian surrogacy law of 2021 lays out guidelines for surrogacy agreements and attempts to safeguard the rights of intended parents, surrogates, and the surrogate child. This law has limited who can become an intended parent or surrogate and made commercial surrogacy illegal. The new surrogacy law in India allows couples to opt for surrogacy under certain medical conditions, including MRKH, unicornuate uterus, multiple IVF failure, miscarriage, or abortion.[6]

Both intended parents and surrogates must abide by several legal conditions set down in India's new surrogacy law for 2021. Along with a medical indication acquired from the District board, they must provide several documents, such as proof of marriage, certificates of age, and a certificate of essentiality for the surrogate. Additionally, the surrogate needs to possess a Board-issued certificate of eligibility. In addition, the intended parents are required to cover the surrogate's transportation, clothing, medications, examinations, and checkups. They are not permitted to provide any financial investment, nevertheless. Additionally, the intended parents must produce an affidavit or assurance of the surrogate's health, and she must be insured for three years.[7]

Rights and Responsibilities of Intended Parents

The new surrogacy law in India forbids commercial surrogacy to protect women from being exploited by those who might be enticed into such contracts. Only altruistic surrogacy is permitted by India's 2021 surrogacy law, which calls for the surrogate mother to bear the kid to assist another person or couple without receiving any financial remuneration beyond insurance and medical costs. This clause puts the welfare of all parties concerned first and guarantees that surrogacy agreements in India continue to be moral and open. Furthermore, the law emphasizes the significance of responsible and controlled surrogacy activities in India by laying forth several requirements that must be fulfilled before a couple or individual can choose to use surrogacy in that country.[8]

The new surrogacy law in India - 2021 has defined eligibility conditions for intended parents who wish to pursue surrogacy. According to the legislation, the intending pair must be legitimately married and meet certain age requirements. Female partners must be between the ages of 23 and 50, while male partners must be between the ages of 26 and 55. Furthermore, they must have no biological children from a previous marriage and must produce a consenting surrogate who will marry and have at least one child of her own. Furthermore, an unmarried woman may also qualify as an intended parent, provided she falls within the age range of 35 to 45 years and is either married, divorced, or widowed. However, she cannot use a surrogate if she has a living child from a prior marriage.[9]

The Surrogacy Act provides intended parents with various legal rights, including the right to parenthood of the child delivered through surrogacy. After the child is born, the intended parents are acknowledged as legal parents, with no claim from the surrogate mother. Surrogacy agreements are legally required to protect the rights of all parties involved. This agreement establishes the roles, obligations, and rights of both the surrogate and the intended parents.

Eligibility of an intending couple to choose Surrogacy in India[10]

Who can be a surrogate mother in India?

A married woman who has her child must be between the ages of 25 and 35 years. A certificate of physical and psychological fitness for surrogacy from a qualified medical practitioner is required. She cannot give her gametes for surrogacy. She is entitled to 36 months of insurance coverage for postpartum birth problems.

Who is qualified to give their eggs?

Any interested woman may donate her eggs to a surrogacy program. She must meet the following criteria: Must have a previous successful pregnancy and delivery. She must be between the ages of 25 and 35 years. A certificate of physical and psychological fitness for donation is required.

What are the rights of a surrogate child?

The kid is considered a biological child of the "intending couple" or "intending woman" and has the same rights and advantages as a natural child. He/she is not for sale, prostitution, or any other form of exploitation, nor is he/she to abandon, disown, exploit, or cause to be abandoned, disowned, or exploited in any form, the child or children born through surrogacy, nor to exploit or cause to be exploited the surrogate mother or the child born through surrogacy in any manner, and stringent penalties have been imposed to deter potential violators.

Legal Provisions of Surrogacy in India[11]

1. Surrogacy Regulation Act,2021

The Act exclusively authorizes altruistic surrogacy, which means that the surrogate mother cannot be compensated other than for medical expenditures incurred during the pregnancy, including insurance coverage. Commercial surrogacy, in which the surrogate is compensated in cash or kind, is prohibited. Before beginning the surrogacy process, the intending pair must receive two certificates from a competent authority: a certificate of essentiality and a certificate of eligibility. Certain conditions must be completed before receiving a certificate of essentiality. The pair must present a District Medical Board certificate of infertility confirming their inability to conceive. The Magistrate Court must also issue an order of custody for the kid. Additionally, insurance for the surrogate mother must be provided to cover postpartum complications for 16 months after delivery.

Further, this act prohibits advertisement that promotes commercial surrogacy. The penalty for these offenses is up to ten years in prison and a fine of up to ten lakh rupees. It requires all facilities that provide surrogacy therapy to be registered, and practitioners to meet certain qualifications. The intended pair must be lawfully married, meet age standards, and have no previous children via surrogacy or adoption.

2. The Surrogacy Regulation Rules, 2022 [12]

The central government notified the Surrogacy Regulation Rules, 2022, which establish the essential requirements and regulations for registered surrogacy clinics. These clinics must have a minimum staff of one gynaecologist, anaesthetist, embryologist, and counsellor. Additional people may be hired from ART Level 2 clinics. The gynaecologist must have a postgraduate degree in gynaecology and obstetrics and prior experience doing ART operations. Surrogacy clinics must register with the competent authority and pay the required fees. Following approval, a certificate of registration is issued, which must be conspicuously displayed within the clinic premises. In the case that an application is rejected, cancelled, or suspended, the applicant has the right to appeal within 30 days using the approved appeal form. Authorized entities are authorized to perform unannounced inspections of surrogacy clinics, including their premises, equipment, and documents, provided that such inspections do not harm stored gametes or embryos. The surrogate mother's voluntary permission, as outlined in the rules, is required for the surrogacy operation. The number of surrogacy efforts is limited to three. Typically, the gynaecologist will implant only one embryo, but in extreme instances, up to three embryos may be authorized. If the surrogate mother wants to terminate the pregnancy, the procedure must follow the rules provided in the Medical Termination of Pregnancy Act, 1971. Additionally, the intending couple or woman must procure health insurance covering 36 months for the surrogate mother’s protection.

3. Recent Amendments and developments [13]

The first amendment to the Rules, notified on October 10, 2022, modified Rule 5(2) governing surrogacy insurance coverage. The updated rule requires the prospective couple to buy 36 months of insurance coverage and guarantee it by completing an affidavit. Previously, the affidavit had to be sworn before either the Metropolitan or the Judicial Magistrate of the First Class. The 2022 Amendment added flexibility to this process by permitting the affidavit to be sworn before one of two additional sorts of authorities: an Executive Magistrate or a Notary Public. This adjustment is designed to shorten the procedure and make it easier for couples planning to apply for surrogacy. The application expands the list of authorized authorities who can swear the affidavit, the amendment provides more options for the intending couple to comply with the insurance coverage requirement. This is likely to result in a quicker and smoother surrogacy application process. The second amendment to the Rules, issued in March 2023, prohibits intended couples from using donor gametes for surrogacy. Previously, the rule specified that surrogacy treatment might include the fertilization of a donor oocyte with the husband's sperm, which some understood to suggest that utilizing donor gametes was permitted. However, the 2023 Amendment substitutes this rule with a new one that expressly outlaws the use of donor gametes for couples or single women (widows or divorcees). The amendment also makes it clear that surrogate moms cannot supply their gametes. Thus, intended parents who have medical challenges with their gametes and require donor gametes to have a child may find difficulties in pursuing surrogacy in India. The change restricts the pool of eligible individuals who can commission surrogacy, along with other restrictions based on age, marital status, and medical requirements.

Landmark Judgements [14]

1. Jan Balaz v. Anand Municipality (2009 SCC OnLine Guj 10446): This is a significant case in Indian surrogacy legislation. In 2008, the Petitioner, a German national, engaged in a surrogacy agreement with an Indian woman to have a child. The child was born in Gujarat, India, and the Petitioner secured a birth certificate for them. However, when the Petitioner attempted to leave India with the child, he was stopped by authorities. The petitioner filed a petition before the Gujarat High Court Seeking permission to depart India with the child. The Court first rejected the case, citing worries about the child's well-being and the legality of commercial surrogacy in India. However, the court ultimately allowed the Petitioner to depart with the kid, subject to specific conditions. The case highlighted the issue of commercial surrogacy in India, as well as the need for clearer laws and regulations governing surrogacy arrangements. It also emphasized the importance of ensuring the safety and well-being of children born through surrogacy arrangements.

2. Baby Manji Yamada v. Union of India [(2008) 13 SCC 518]: In this case, a surrogate child was born to a Japanese couple via an Indian surrogate mother. The couple eventually divorced, and the mother refused to take custody of the child, while the father was unable to secure a visa to visit India and collect the child. The case raised problems concerning surrogate children's legal status and rights, as well as the responsibility of surrogacy clinics and intended parents. Finally, the Supreme Court asked the Japanese consulate in India to issue travel permits for the kid so that she might be taken to Japan and advised that the Indian government adopt legislation governing surrogacy in India.

Conclusion

The Surrogacy (Regulation) Act, 2021, and later revisions have dramatically changed the landscape of surrogacy in India. The legal system has created clear criteria for intended parents and surrogates, promoting altruistic surrogacy while forbidding commercial partnerships to prevent exploitation. While the law seeks to protect the rights of all parties involved, including surrogate children, it also imposes strict eligibility requirements for both intended parents and surrogates. These measures have resulted in a more regulated and ethical surrogacy process, although obstacles remain, particularly for individuals who require donor gametes or face legal complexities. The continual advancements and historic decisions highlight the need for balanced regulation that protects the rights of both surrogates and intended parents while assuring the child's well-being.

References

For website sources:

• Fertility World, ‘Surrogacy Laws in India’ https://fertilityworld.in/blog/surrogacy-laws-in-india/ accessed 25 October 2024.

• Khurana & Khurana, ‘Legality of Surrogacy in India: Everything You Need to Know’ (2023) https://www.khuranaandkhurana.com/2023/06/16/legality-of-surrogacy-in-india-everything-you-need-to-know/ accessed 25 October 2024.

• International Fertility Centre, ‘Surrogacy Law in India 2021’ https://internationalfertilitycentre.com/surrogacy-law-in-india-2021/ accessed 25 October 2024.

• IVF Conceptions, ‘Latest Surrogacy Law in India’ https://www.ivfconceptions.com/latest-surrogacy-law-in-india/ accessed 25 October 2024.

For journal articles:

• W Cui, ‘Mother or Nothing: The Agony of Infertility’ (2010) 88 Bull World Health Organ 881 https://doi.org/10.2471/BLT.10.011210 accessed 25 October 2024.

• AR Igreja and M Ricou, ‘Surrogacy: Challenges and Ambiguities’ (2019) 25 New Bioethics 60 https://doi.org/10.1080/20502877.2019.1564007 accessed 25 October 2024.

• MA Hartshorn, ‘Surrogate Parenting: Analysis and Recommendations for Public Policy’ (1989) 261 JAMA 1811.

For academic sources (e.g., PubMed Central):

• National Center for Biotechnology Information, ‘Surrogacy and Ethics’ (2021) PubMed Central https://pmc.ncbi.nlm.nih.gov/articles/PMC3531011/ accessed 25 October 2024.

[1] W Cui, ‘Mother or Nothing: The Agony of Infertility’ (2010) 88 Bulletin of the World Health Organization 881 <https://www.scilit.net/publications/f2416e526fc43bf18af432482ad595d5> accessed 25 October 2024.

[2] W Cui, ‘Mother or Nothing: The Agony of Infertility’ (2010) 88 Bulletin of the World Health Organization 881 <https://www.scilit.net/publications/f2416e526fc43bf18af432482ad595d5> accessed 25 October 2024.

[3] AR Igreja and M Ricou, ‘Surrogacy: Challenges and Ambiguities’ (2019) 25 New Bioethics 60 <https://research.amanote.com/publication/F6pyAnQBKQvf0Bhiq7dn/surrogacy-challenges-and-ambiguities> accessed 25 October 2024.

[4] AR Igreja and M Ricou, ‘Surrogacy: Challenges and Ambiguities’ (2019) 25 New Bioethics 60 <https://research.amanote.com/publication/F6pyAnQBKQvf0Bhiq7dn/surrogacy-challenges-and-ambiguities> accessed 25 October 2024.

[5] MA Hartshorn, ‘Surrogate Parenting: Analysis and Recommendations for Public Policy’ (1989) 261 JAMA 1811 <https://repository.library.georgetown.edu/handle/10822/1035964> accessed 25 October 2024.

[6] Fertility World, ‘Surrogacy Laws in India’ https://fertilityworld.in/blog/surrogacy-laws-in-india/ accessed 25 October 2024.

[7] Fertility World, ‘Surrogacy Laws in India’ https://fertilityworld.in/blog/surrogacy-laws-in-india/ accessed 25 October 2024.

[8] International Fertility Centre, ‘Surrogacy Law in India 2021’ https://internationalfertilitycentre.com/surrogacy-law-in-india-2021/ accessed 25 October 2024.

[9] International Fertility Centre, ‘Surrogacy Law in India 2021’ https://internationalfertilitycentre.com/surrogacy-law-in-india-2021/ accessed 25 October 2024.

[10] Fertility World, ‘Surrogacy Laws in India’ https://fertilityworld.in/blog/surrogacy-laws-in-india/ accessed 25 October 2024.

[11] Khurana & Khurana, ‘Legality of Surrogacy in India: Everything You Need to Know’ (2023) https://www.khuranaandkhurana.com/2023/06/16/legality-of-surrogacy-in-india-everything-you-need-to-know/ accessed 25 October 2024.

[12] Khurana & Khurana, ‘Legality of Surrogacy in India: Everything You Need to Know’ (2023) https://www.khuranaandkhurana.com/2023/06/16/legality-of-surrogacy-in-india-everything-you-need-to-know/ accessed 25 October 2024.

[13] Khurana & Khurana, ‘Legality of Surrogacy in India: Everything You Need to Know’ (2023) https://www.khuranaandkhurana.com/2023/06/16/legality-of-surrogacy-in-india-everything-you-need-to-know/ accessed 25 October 2024.

[14] Khurana & Khurana, ‘Legality of Surrogacy in India: Everything You Need to Know’ (2023) https://www.khuranaandkhurana.com/2023/06/16/legality-of-surrogacy-in-india-everything-you-need-to-know/ accessed 25 October 2024.