Surrogacy Regulation in India: Empowering Women and Ensuring Ethical Practices

Introduction

Surrogacy refers to a voluntary legal contract or arrangement between a woman, known as a ‘surrogate,’ and a couple who intends to become parents. This process is pursued when the couple is biologically unable to conceive or bear children for various reasons.

In India, surrogacy is legally recognized solely in the form of gestational surrogacy, and the law does not endorse or regulate traditional surrogacy.

Gestational Surrogacy

Gestational surrogacy is the only legally recognized form of surrogacy in India. In this type of surrogacy, the surrogate mother carries an embryo created using the intended parents’ donated egg and the father’s sperm through in-vitro fertilization (IVF).

Gestational surrogacy differs from commercial surrogacy, which involves the intrauterine insemination of the surrogate mother, allowing the embryo to develop in her womb without any egg retrieval treatment from the surrogate’s body.

In 2015, the Indian government imposed a ban on commercial surrogacy due to the widespread exploitation of women who served as surrogates. These women were often subjected to repeated surrogacy cycles and inadequate treatment. Additionally, there was a lack of regulation regarding the post-delivery care of the surrogate mothers, and they could be coerced into selling their wombs by their family members. The ban was prompted by various psychological, ethical, moral, medical, and legal concerns surrounding the practice of commercial surrogacy.

Laws Governing Surrogacy In India

In 2002, the Indian government legalized commercial surrogacy, leading to the country being referred to as the “baby factory” of the world. This resulted in the establishment of numerous foreign firms, intermediaries, and organizations offering services related to finding surrogate mothers, managing legal complications, and facilitating medical treatments. Unfortunately, these developments created complications for surrogate mothers who were often coerced into selling their wombs for commercial gain.

Recognizing these issues, the Law Commission, in its 228th report, recommended the prohibition of commercial surrogacy. The Indian Council of Medical Research (ICMR) also stated that the surrogate mother should relinquish all her rights over the surrogate child.

In 2016, the Surrogacy (Regulation) Bill, 2016 was introduced in parliament and subsequently passed in 2018. The bill primarily focuses on promoting altruistic or gestational surrogacy while aiming to protect women and children from potential exploitation. Its objective is to bring surrogacy under the purview of the law.

Key Provisions Of Surrogacy (Regulation) Bill, 2016

The Surrogacy law Bill has legalized the entire surrogacy process. Section 2 of the bill specifies that any payment made to the surrogate mother, such as fees, charges, remunerations, or incentives, shall be payable to her, excluding reasonable medical expenses and insurance coverage. This provision effectively eliminates the commercial aspect of surrogacy. Additionally, the section sets a minimum age requirement for couples opting for surrogacy, with the male partner needing to be at least 21 years old and the female partner at least 18 years old.

• Section 3 of the bill mandates that every surrogacy clinic must be registered with the government or specified bodies. Surrogacy procedures can only be performed at registered clinics, and advertising for commercial surrogacy, including soliciting women to become commercial surrogates or any other form of enticement, is strictly prohibited.
• Furthermore, the bill stipulates that abortions must adhere to the provisions outlined in the Medical Termination of Pregnancy Act, of 1971. Any unauthorized storage of human gametes or embryos is also subject to penalties.
• The bill designates the appropriate authority empowered by law to issue an eligibility certificate to the surrogate mother, provided she meets certain conditions. These conditions include being married and having her own biological child, undergoing surrogacy only once, and possessing the necessary medical and psychological fitness certificates. The intended couple must also not have any offspring prior to entering the surrogacy process.
• The act permits only Indian citizens to undergo surrogacy, while NRIs, PIOs, foreigners, single parents, and transgender individuals are not granted permission to pursue surrogacy.

Constitution Of Various Authorities

The act establishes several authorities in the form of boards, namely the National Surrogacy Board and State Surrogacy Boards.

The National Surrogacy Board, constituted by the Central Government, and the State Surrogacy Boards, constituted by the respective State Governments, have the responsibility of advising the central and state governments on surrogacy policies. They are also responsible for formulating rules and a code of conduct for surrogacy clinics and practitioners. Additionally, these boards supervise the subsidiary bodies operating under the provisions of the act.

Conclusion

The surrogacy bill has been a significant step forward for Indian society, addressing the rampant exploitation of women and their wombs. It effectively addresses potential issues such as the exploitation of surrogate mothers and illegal activities like pregnancy termination or female foeticide.

However, the bill has shortcomings that exclude certain sections of society, such as single parents or the transgender community, from benefiting from surrogacy. Additionally, the bill’s provision of a 10-month gestation period has helped mitigate misunderstandings between intended parents and surrogate mothers, reducing the likelihood of conflicts arising.

Overall, while the bill has made positive strides in protecting the rights of women and addressing concerns related to surrogacy, there is room for further improvement to ensure inclusivity and address any remaining issues.

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