Surrogacy is a delicate blend of science, law, and the profound human desire for parenthood. This compelling narrative has been written in different hues across the globe, each country grappling with its ethical complexities and legal implications.
India, once a hotbed for commercial surrogacy, finds itself at an intriguing intersection. Despite a deep cultural reverence for motherhood, the country is now ensnared in a network of laws that aim to reshape the practice of surrogacy.
A pressing question emerges - "Is surrogacy legal in India?" This article's main aim is to unlock this mystery and check all details about surrogacy laws, their moral underpinnings, and societal impacts in India. All in all, trying to clear up any confusion or misunderstandings.
So, without ado, let’s embark on this journey.
Types of Surrogacy in India
In India, two types of surrogacy are commonly practiced: traditional surrogacy and gestational surrogacy. Now, let's delve into a detailed explanation of these surrogacy types.
Traditional surrogacy is when a woman, known as the surrogate, gets artificially inseminated with sperm from the intended dad. This means that the surrogate's eggs get fertilized by the dad's sperm, so she is the biological mom of the baby she carries and gives birth to.
As you can guess, this kind of surrogacy can be quite difficult, both emotionally and legally. That's why it's not very common nowadays. In fact, in some places, traditional surrogacy is illegal.
Gestational surrogacy is a newer, more recommended type of surrogacy that is used most often today. In this process, doctors use a technique called In-Vitro Fertilization (IVF) to fertilize the mom's egg with the dad's sperm. Sometimes, the egg and sperm can also come from donors.
The fertilized egg, which is now an embryo, is then put into the surrogate's womb. The surrogate is only carrying the baby; she is not biologically related to it.
Keep in mind: The only type of surrogacy done at the Fertility World Surrogacy Center is gestational surrogacy.
Thanks to advances in medical science, a woman can now carry a baby that is not genetically hers for another couple. This woman is called a gestational surrogate or gestational carrier.
This is the most common type of surrogacy and offers the best legal protection for both the parents-to-be and the surrogate.
Altruistic surrogacy, which can be practiced in both traditional and gestational surrogacy, involves surrogate mothers who do not receive compensation for their time, risk, or effort.
This form of surrogacy is the only legally permitted type in certain countries. In this method, a woman willingly becomes a surrogate without financial compensation.
In contrast to most surrogacy arrangements, altruistic surrogates usually assist someone they know personally, such as a close friend or family member, and may only be reimbursed for medical expenses incurred during the pregnancy.
Independent surrogacy involves women who voluntarily offer surrogacy services without involving a surrogacy service provider. However, this type of surrogacy arrangement is considered one of the riskiest due to the absence of proper screenings and protections.
Commercial surrogacy is a term that encompasses various forms of surrogacy arrangements, excluding altruistic surrogacy.
In other words, any surrogacy arrangement mentioned earlier can be classified as commercial surrogacy if the surrogate mother is financially compensated, apart from being reimbursed for medical costs.
Laws Governing Surrogacy in India
Here are a few legal regulations currently used in India:
The Indian Council of Medical Research Guidelines, 2005
The purpose of these guidelines was to establish regulations for Assisted Reproductive Technology (ART) clinics offering surrogacy treatments in India.
The guidelines specified the appropriate procedures and protocols for fertility clinics to follow when conducting ART operations. In the following section, we will delve into a detailed discussion of these guides.
It's important to note that these guidelines were created before the implementation of the ART Bill and are purely advisory, lacking legal binding.
The Assisted Reproductive Technology Act, 2021
In India, surrogacy is currently restricted to married Indian nationals. The Assisted Reproductive Technology (ART) Act, however, broadens this scope to include all married pairs, cohabitating partners, single females, and foreign nationals.
The Bill defines ART as all techniques employed to assist a woman in achieving pregnancy, from introducing an embryo into a woman's reproductive system to managing sperm outside the human body.
The Act additionally establishes regulatory boards for overseeing the Act's implementation.
1. National Board: The National Board is tasked with advising the government on policy matters, recommending minimum standards for clinic and bank infrastructure staff, including doctors and nurses, and monitoring the implementation of the Bill, suggesting amendments as needed.
2. National Registry: The National Registry will maintain a comprehensive database of all clinics and banks nationwide, detailing the services they provide and their outcomes. This information will be reported to the National Board to inform regulatory development.
3. Registration Authority: The Registration Authority will consist of a chairperson from the health department (ranking above a joint secretary), a vice-chairperson (ranking above a joint director in the health department), a woman from a prominent women's organization, a law officer from the department of law, and a reputable medical practitioner.
The Registration Authority will handle the registration process for ART centers, enforce standards, oversee law implementation, address complaints and violations, take legal action against ART misuse, initiate investigations, and advise the National and State Boards on rule modifications to accommodate technological and societal shifts.
The Surrogacy (Regulation) Act, 2021
Enacted in early December 2021, the Act presents several key components:
1. All clinics offering surrogacy services must be registered under the Act, with professionals working in those clinics meeting the qualifications set out in the bill.
2. Facilities that carry out surrogacy procedures are required to register within sixty days following the appointment of a competent authority. This registration must be renewed every three years.
3. The Act completely bans commercial surrogacy, whether performed by a surrogacy clinic, gynecologist, embryologist, or any other medical professional. Only altruistic surrogacy is allowed under the 2021 Act.
4. The intending couple, that is, the couple wishing to have a child, must be legally married according to Indian laws. The age range for the female partner is 25-50 years, and for the male partner, it's 26-55 years.
Additionally, they should not have any other adopted or naturally-born child, either through surrogacy or otherwise.
5. The surrogate mother must be aged between 35-45 years. A woman is only permitted to be a surrogate once in her lifetime.
6. The National/State Assisted Reproductive Technology and Surrogacy Board is responsible for issuing a 'Certificate of Essentiality/Infertility' to an intending couple with a medical necessity for surrogacy.
7. The surrogate mother must be made aware of all known side effects and potential complications of the procedure. She must also provide written informed consent in a language she comprehends.
8. As per the Act, a registry named the National Assisted Reproductive Technology will be established to handle the registration of clinics providing surrogacy services.
9. The Act stipulates that any couple found guilty of engaging in commercial surrogacy could face a penalty of up to 50,000 rupees and a prison term of five years.
If the same offense is committed multiple times, the fine could increase to 1 lakh rupees, and the prison term could be extended to 10 years.
Any individual, organization, or clinic involved in the exploitation of surrogate mothers or children born via surrogacy may be subject to a maximum penalty of ten years in jail and a fine of 10 lakh rupees.
Lacunae in the Surrogacy (Regulation) Act, 2021
The Act is limited to two groups: the intending couple who must be legally married according to Indian laws and can prove infertility through a certificate, and an intended woman who is either a widow or a divorcee aged between 35-45 years.
The married couple must fall within the age bracket of 25 to 50 years for females and 26 to 55 years for males.
This approach, however, overlooks segments of society, such as unmarried women desiring motherhood but struggling with conception. Despite its seeming modernity, the legislation reinforces traditional stigmas against childbirth outside marriage.
The Act further excludes men and women in live-in relationships by restricting the term 'couple' to legally married individuals. Additionally, it fails to consider couples with chronic diseases potentially transmissible to offspring.
While Section 4(ii)(e) allows surrogacy under certain conditions identified by the National Assisted Reproductive Technology and Surrogacy Board, the criteria remain vaguely defined and largely subject to the Board's interpretation.
- One of the partners in a couple intending to have a child must be dealing with “verified infertility”.
- A couple unable to conceive naturally despite unprotected intercourse or facing a medically validated condition that inhibits conception.
- Those couples who are dealing with specific medical issues such as an absent or abnormal uterus, irreversible harm or destruction of the uterus, or having undergone a hysterectomy due to conditions like cancer, fibroids, and so on.
- Couples who have medically established that surrogacy is their only remaining option to have a biological child.
- When a prospective couple has a medical reason that necessitates gestational surrogacy as per the condition precedent in the 2020 bill.
- An Indian woman, whether a widow or divorcee, aged between 35 to 45 years who wishes to pursue surrogacy.
- A woman who is married and already has a child,
- She must fall within the age range of 25 to 35 years,
- She must obtain a certificate that validates her medical and psychological fitness for surrogacy from a certified medical practitioner.
- She is not permitted to donate her reproductive cells for surrogacy,
- A woman can only serve as a surrogate mother once in her lifetime,
- She is eligible for insurance coverage for 36 months to cover any complications that may arise post-delivery.
Guidelines for Agencies, Fertility Clinics, and Doctors
In 2002, the Indian Council for Medical Research presented guidelines regarding surrogacy, which gained government approval in 2005 to govern Assisted Reproductive Technology (ART) procedures.
The Law Commission of India, in its 228th report, delved into ART procedures, discussing the necessity and significance of surrogacy, as well as the measures taken to regulate surrogacy agreements.
The Law Commission has established the following directives:
1. Surrogacy procedures must be contract-based, involving an agreement between all parties concerned. This agreement should include all these conditions:
- The surrogate mother's consent to carry the child,
- Agreement from her spouse and other family members,
- The medical processes involved in artificial insemination,
- Compensation for all reasonable costs related to carrying the child to term,
- The willingness to hand over the child to the commissioning parent(s), etc. However, such an arrangement should not be for commercial gain.
2. A surrogacy agreement should ensure financial support for the surrogate child in case of the death of the intended couple or individual before the child's birth or if a divorce occurs and neither party wishes to take custody of the child.
3. A surrogacy agreement must ensure life insurance coverage for surrogate mothers.
4. One of the intended parents should also be a donor, as the primary source of a child's love and affection stems from a biological relationship. This would also lower the risk of different forms of child abuse observed in adoption cases.
5. If the intending parent is single, they must be a donor to have a surrogate child. Otherwise, if the biological (natural) parents and adoptive parents differ, adoption becomes the alternative.
6. The legislation should acknowledge a surrogate child as the legitimate child of the commissioning parent(s) without the need for adoption or guardianship declaration.
7. The surrogate child's birth certificate should only list the name(s) of the commissioning parent(s).
8. The privacy rights of both the donor and the surrogate mother must be safeguarded.
9. The standards protect both the commissioning parents and the surrogate mother.
10. Surrogacy for sex selection should be banned.
11. Abortion cases should be regulated exclusively by the Medical Termination of Pregnancy Act of 1971.