Surrogacy Laws in India

Recently on 25th December 2021 President Ramnath Kovind has given his assent to Surrogacy Regulation Bill, 2021 which was passed by the parliament during the winter session.

This bill has been long awaited by people & even other concerned professionals. They were patiently waiting that some kind rules & regulations should come in from the government side and finally the legislative process of the bill concluded. At the time of parliamentary debates during session there were concerns about single parents, transgender and living couples to be included in the ambit of commissioning parents.

Surrogacy is not a new concept in India and this process became known here with the birth of the world’s second and India’s First IVF baby Kanupriya in Kolkata in 1978 and India realized that we have the expertise for assisted use of technology for reproductive rights.  Since then, there has been mushrooming of several clinics & agencies which have been involved in various kinds of technologies for reproduction but unfortunately there was no law. Hence, it is a very welcome law & regulation that we all were looking forward.

Concept of Surrogacy

Surrogacy means the process carrying and delivering a child for another person thus, a surrogate mother is a woman who bears a child on behalf of another woman either from her own eggs or from the implantation in her womb of a fertilized egg from another woman.

Commercial surrogacy involves an agreement which includes monetary compensation to the surrogate mother along with the medical expenses associated with the pregnancy.

Any child born out of surrogacy procedure shall be deemed to be a biological child of the couple and the said child shall be entitled to all the rights and privileges available to a natural child under any law for the time being in force. There are two kinds of surrogacy:

Altruistic Surrogacy - There is no charges, expenses, fees, remuneration or monetary incentive. Only the medical expenses and the insurance are given to the surrogate mother.

Commercial Surrogacy - It includes selling or buying of human embryo or trading in the sale or purchase of human embryo by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother.

Surrogacy (Regulation) Act of 2021

The Surrogacy Regulation Act, 2021 defines surrogacy as a practice where a woman gives birth to child for an intending couple with the intention to hand over the child after the birth. The Bill prohibits surrogacy on a commercial scale and allows only altruistic surrogacy in which the surrogate mother is not paid any financial compensation other than medical expenses and insurance coverage during the gestation period.

The bill states that married women, widows can take advantage of surrogacy. Divorced women can also take advantage of Assisted Reproductive Technology (ART) and, depending on the circumstances, surrogacy. Foreign couples have to follow the law of our country for surrogacy. If there is any disorder in the child, now he can not be left.

Key Points of Act

• The act prohibits commercial surrogacy but allows altruistic surrogacy.
• The intending couple should have certificate of essentiality and a certificate of eligibility issued by the appropriate authority.
• The central and the state government shall constitute the national surrogacy board and the state surrogacy boards respectively.

Eligibility Criteria for Surrogate Mother

• Close relative of the intending couple.
• Age of mother should be between 25 to 35 years.
• Surrogate only once in her lifetime.
• Prosses certificate of medical and psychological fitness.

Functions of National Surrogacy Board

• Advice the central government on policy.
• Supervise functioning of state surrogacy boards.

Offences for Contraventions

• Undertaking or advertising commercial surrogacy.
• Exploiting surrogate mother.
• Abandoning or exploiting surrogate child.

Punishment under the Act-  A first-time offender will be fined Rs 5-10 lakh for unethical conduct and practices under this law. also, fine of Rs 10-20 lakh or imprisonment for eight years will be under the act for repeat offenders.

Medical and Legal Process Currently Involved:

In 2005 ICMR came out with certain guidelines to give directions to doctors & clinic regarding such kind of cases. The procedure according to the ICMR guidelines is followed:

• The surrogacy clinic is chosen by the couple according to their financial status, clinic’s recognition and success rate, geographical location and other facilities.
• These clinics conduct physical examination, complete background check, psychological and medical screening to find out if the potential surrogate candidate can cope with the emotional demands and responsibility that comes with surrogacy. The screening also involves full blood count, renal, liver and thyroid function tests and chest X-Ray.
• Suitable surrogate mother is chosen and the embryo implantation through traditional or gestational surrogacy begins.
• Surrogacy agreement is signed between the surrogate mother and the intended couple which includes type of surrogacy, mention of paternity, issues of motherhood, child’s custody, compensation and jurisdiction related issues.
• Once the baby is born and delivered to the couple, the surrogate mother relinquishes all parental rights over the child. The birth certificate is issued bearing the name of the couple who commissioned the surrogacy, as parents.

Fashion Surrogacy under this Act

‘Fashion Surrogacy’ is not written under this law but this is a very commonly used term and it speaks volumes about the process and developing a law which is acceptable to all the stakeholders in the country.

When we talk about some unregulated clinics and try to link the term ‘fashion surrogacy’, then we have to try to look at the social section of the population which are using this type of services. It is a highly costly service and is being used by those persons who are bracketed high as far as their bank balance is concerned.

This concept of fashion surrogacy is on the increase, a system has been developed which is unethical, probably unregulated & needs to be taken care of, if the law has got enough strength in the hand.

There are certain provisions in current law which can limit this concept of fashion surrogacy. But it all depends upon the development of the various types of payment which can be made using many criterias and it can be included within the eligibility certificates & the essentiality certificate like gestational surrogates. Hence, there has to be strict implementation of the law to stop such kind of practices like fashion surrogacy.

Global Practices in Surrogacy

Commercial surrogacy is legally allowed in countries like, Russia, Ukraine & Thailand. In UK, Ireland, Denmark, Belgium, South Africa, Australia, Canada & Greece only Altruistic surrogacy is allowed.

While in France, Germany, Spain, Sweden, Italy & Iceland surrogacy banned in all forms. Some of the states in US, they have excelled in the treatment through surrogacy.

A UN study conducted in July 2012 put the surrogacy business at over 400 million dollars with more than 3000 fertility clinics all over the country in India. India is also considered as one of the very developed & advanced medical system. Which can address this efficiency like rules & regulations which are now in place to make sure that it is done in a very ethical manner and in a very transparent manner.

CONCLUSION

In 2021 the movie ‘Mimi’ has been in limelight in India, about the surrogacy concept in which a foreign couple come India for surrogacy process and then abandoned the child in surrogate mother’s womb only and left. The film has received both types of reviews. Many doctors have also criticized the concept of the movie, saying that perhaps the importance of surrogacy and the complications in the film have not been fully justified.

Foreign nationals who wanted to escape tough surrogacy laws in their own countries used to come India in search of poor and vulnerable women and they were used for renting their wombs. Foreigners are stopped 6 years ago, almost in 2015 and government of India had stopped them from coming to India for this surrogacy process. Even after that there are a lot of Indian couples also who need surrogacy. 

The new regulations and law certainly will go a long way in checking this kind of exploitation of surrogate mothers. According to this law & provisions it will not go underground and all the stakeholders will feel protected under this law.