Introduction
The word “Surrogacy” comes from the Latin word “Surrogatus” which means a “substitute” or an alternate option. Surrogacy is an act of reproductive practice where a third party conceives and gives birth to a child. The intending parents and surrogate mother enter into a contractual arrangement which states that after the child is born, the surrogate mother would hand over the child to the intending parents without having any legal or parental obligation over the child.
Reproduction through surrogacy can be performed by two methods: Traditional and Gestational. In Traditional Surrogacy, the surrogate mother is fertilized with the semen of the male partner of the intending couple, whereas, in Gestational Surrogacy, an embryo is created in a laboratory using the female partner’s eggs and male partner’s semen of the intended couple. Then, that embryo is placed inside the uterus of the surrogate mother. Unlike gestational surrogacy, in traditional surrogacy, the child born is biologically related to the surrogate mother. Countries like Russia, USA, Mexico, Ukraine, etc, have permitted commercial surrogacy whereas France, Italy, Finland, etc have still restricted the use of surrogacy in all forms.
Background
India suffered from the commercialization of surrogacy for a long period of time. Until 2008, the commercialization of surrogacy was rapid in India. There was also no statutory legislation to regulate this. Surrogacy was not socially accepted in the country, but unethical commercialization was rampant, in ignorance of certain guidelines provided by the Indian Council for Medical Research (ICMR). In 2002, commercial surrogacy was legalised in India, but due to lack of strong statutory legislation, the estimated rise of the commercial surrogacy industry was $400 million per year, with more than 3000 fertility clinics across India.[1] During that time women involved in surrogacy faced several hardships, such as exploitation, poor living conditions, low cost fertility clinics, and unethical treatment. Only after the controversial case of Baby Manji Yamada v. Union of India[2], the ethical side of commercial surrogacy came under public scrutiny.
Over the last few years, surrogacy has gained immense importance in the country. With the rise of 20-25 million infertile couples in the country, this Assisted Reproductive Technology has been a huge help to childless couples.[3]
Surrogacy Regulations in India
The first set of guidelines on surrogacy in India was the National Guidelines for Accreditation, Supervision and Regulation of ART ??Clinics in India, formed in 2005. It was not exclusively related to surrogacy, nevertheless provided some basic guidelines to be followed in Assisted Reproductive Treatment (ART)[4].
In 2009, the Law Commission of India took suo moto action to deal with regulation of surrogacy in its 228th report. The report recommended guidelines to regulate provisions for surrogacy with an aim to protect the interests of both the parties. Transparency, privacy, financial support for the surrogate child and mother, ensuring legitimacy of surrogate child, were some of the key features of the Law Commission report. Finally, based on the report, a new Bill was formed to regulate the provisions of surrogacy in 2010. However, there were several amendments made to this Bill over the years.
The Surrogacy (Regulation) Bill, 2016 was introduced and passed by Lok Sabha but rejected in Rajya Sabha with a suggestion to examine its provisions once again. However, in 2019 the same bill was again introduced in Rajya Sabha without any consideration to the previous suggestions. The Surrogacy (Regulation) Bill, 2019 banned commercial surrogacy and permitted only altruistic surrogacy, thereby restricting surrogate mother to gain monetary compensation for her services. Such restrictions reinforced traditional societal values of women’s work in the private sphere and having no economic value. Once again, the Bill was not passed by Rajya Sabha, and a Committee was formed to recommend changes to the legislation.
The Surrogacy (Regulation) Bill, 2020 was a significant improvement to the 2019 Bill, as it discarded several old clauses, among which an important change was made to limit the eligibility of surrogate mothers to only close relatives. The 2020 Bill allowed “willing” women to be surrogates. However, there are still debatable clauses that do not provide equal protection for both parties.
The Surrogacy (Regulation) Act 2021
The Indian Parliament, in early December 2021 passed two bills which became landmark acts - Assisted Reproductive Technology (Regulation) Act and Surrogacy (Regulation) Act. Earlier while the Surrogacy (Regulation) Bill was passed in Lok Sabha, it could not be passed in the Rajya Sabha which instead relegated it to a Parliamentary Standing Committee for deliberation. Finally, on 25th December 2021, the Surrogacy (Regulation) Act, 2021 received President’s assent in order to regulate the practice and process of surrogacy.
The key features of the surrogacy (Regulation) Act, 2021 are as follows:
- Commercial surrogacy is strictly prohibited and only altruistic surrogacy can be practiced.
- No surrogacy clinics, unless registered under this Act, shall be involved in any surrogacy activities or procedures; or employ any person who does not possess qualifications prescribed in the Act.
- Every clinic which is conducting surrogacy procedures shall within a period of sixty days, from the date of appointment of the appropriate authority, apply for registration of their clinics. Registration shall be renewed after every 3 years.
- No surrogacy clinic, gynecologist, embryologist, or any other medical practitioner shall conduct or promote commercial surrogacy in any form. Under the 2021 Act, only altruistic surrogacy is permitted.
- The intended couple shall be a legally married Indian man and woman, the man shall be between the ages of 26-55 years and the woman shall be between the ages of 25-50 years, and shall not have any previous biological, adopted, or surrogate child.
- The surrogate mother shall be an Indian woman between the age of 35-45 years, intending to avail the surrogacy. Any woman intending to be a surrogate mother cannot be a surrogate for more than once in her lifetime.
- When an intending couple has a medical necessitating surrogacy, shall obtain a ‘Certificate of Essentiality/Infertility’ from the National/State Assisted Reproductive Technology and Surrogacy Board.
- All the known side effects and after-effects of such procedure shall be well informed to the surrogate mother. Also, written informed consent shall be obtained from the surrogate mother, in the language she understands.
- There shall be established a Registry be called National Assisted Reproductive Technology and Surrogacy Registry for the purpose of registration of surrogacy clinics under this Act. Along with Centre, every State and Union Territories shall establish a similar kind of Board for surrogacy matters.
According to the Surrogacy (Regulation) Act, 2021 any couple involved in commercial surrogacy shall be punished for first offence with an imprisonment up to 5 years and fine up to Rs 50,000; and for subsequent offence, imprisonment shall be up to 10 years and fine up to Rs 1,00,000. Any person, organisation or clinic involved in exploitation of surrogate mothers or childrens born through surrogacy, shall be punished with imprisonment for a term which may extend to 10 years and fine which may extend to Rs 10 lakhs.[5]
Constitutional Scrutiny of the Surrogacy (Regulation) Act, 2021
In India the major obstacle for surrogacy is balancing the different interests of both parties. On one side, it is the duty of the State to prevent exploitation of surrogate mothers and protect the rights of the unborn child, while on the other hand, the right of the women to make their own reproductive choices and rights of the intended parents. India’s regulation of surrogacy is still struggling to find a right balance between these conflicting interests.
In Devika Biswas v. Union of India[6], the Apex Court held that Right to Reproduction was an essential facet of the ‘Right to Life’ under Article 21 of the Indian Constitution. Right to Reproduction includes the right to carry a baby, giving birth and raising them. Thus restricting surrogacy to a particular group of age among heterosexual couples only, creates a partial imbalance. The communities such as single people, older couples, LGBTQ+ couples, are all completely denied the right to have reproductive choices, which, arguably, is a violation of Article 21 as well as Article 14 of the Indian Constitution.
Experts have argued that the conflicting provisions in the Surrogacy (Regulation) Act, 2021 would not be able to protect the rights and interests of surrogate mothers and intended parents. It has been feared that these shortcomings will contribute to the development of an illegal market in surrogacy services. Concerns have been raised regarding barriers such as age limitations and excluding queer couples, not aiding in the progression of society, as surrogacy should be recognized as a reproductive right available to all individuals irrespective of their place in the community. India is going through a revolutionary time whereby the citizen’s thinking process is radically shifting from patriarchal norms to a more feministic ethos, hence there is skepticism about the current surrogacy legislation when it comes to the progression of Indian society.
[4] Chapter 3, ICMR Guidelines on ART Clinics, 2005.
