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Surrogacy in India : Law and Issues

Surrogacy, a practice where a woman carries a child on behalf of another person or couple, has gained prominence in India over the years. It has attracted international attention as a reproductive tourism destination, primarily due to its cost-effective nature in comparison to developed countries like the USA. However, the commercialization of surrogacy has raised legal, ethical, and moral issues that have led to the need for regulation in India. This article explores the legal framework governing surrogacy in India, examining its eligibility criteria, legal and moral concerns, and the challenges it faces.

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surrogacy in india

Understanding Surrogacy in India

Surrogacy can be broadly classified into two categories: altruistic and commercial. Altruistic surrogacy involves no financial compensation for the surrogate mother, while commercial surrogacy includes payment to the surrogate, implying a profit motive. Compensated surrogacy covers the expenses and loss of wages incurred by the surrogate.

The commercial aspect of surrogacy in India has made it an attractive destination for foreign couples seeking infertility treatment. This has given rise to the practice of reproductive tourism, with surrogate mothers in India being paid significantly less than their counterparts in developed countries.

Legal and Moral Issues

The practice of surrogacy has sparked various legal and moral debates. Critics argue that surrogacy commoditizes children, disrupts the bond between a mother and child, interferes with nature, and exploits economically disadvantaged women. Psychological considerations also play a role in the success of surrogacy arrangements.

Legal Basis for Surrogacy in India

Article 16.1 of the Universal Declaration of Human Rights 1948 states that all men and women, without limitations based on race, nationality, or religion, have the right to marry and establish a family.

The Indian judiciary recognizes reproductive rights as fundamental.

  • In B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High Court upheld an individual's reproductive autonomy as part of the right to privacy. It concurred with the US Supreme Court in Jack T. Skinner v. State of Oklahoma, which recognized the right to reproduce as a basic civil right.

  • Even in Javed v. State of Haryana, although the Supreme Court upheld the two-child norm for Panchayati Raj elections, it refrained from denying the right to procreation as a fundamental human right.

The Surrogacy Regulation Act of 2021

The Surrogacy Regulation Act of 2021 introduced a comprehensive legal framework to govern surrogacy in India. It establishes eligibility criteria for couples, surrogate mothers, and addresses issues related to commercialization.

Eligibility Criteria for Couples:

  1. Age: Commissioning parents (the couple seeking surrogacy) must be between 25 and 50 years old.

  2. No previous child: The couple should not have had a child through natural conception, adoption, or surrogacy.

  3. Medical and Radiological Reports: The couple must provide clear medical and radiological reports, including genetic anomaly screenings.

  4. Insurance: An insurance policy covering the surrogate mother's medical needs for 36 months from embryo transfer is mandatory.

  5. Essentiality Certificate: After validation by a government medical board, the couple receives an essentiality certificate.

  6. Judicial Approval: The certificate must be submitted to a first-class judicial magistrate to obtain an order, serving as proof of the child's birth.

Eligibility Criteria for Surrogate Mothers:

  1. Age: Surrogate mothers must be between 25 and 35 years old.

  2. Married with a child: They should be married and have at least one child of their own.

  3. First-time surrogate: The surrogate should be a first-time surrogate.

  4. Mental Fitness: A psychiatrist must certify the surrogate as mentally fit.

Additional Regulations:

  • Aadhaar cards: The surrogate, the couple, and the child must have linked Aadhaar cards to ensure traceability.

  • Embryo Genetic Connection: The law requires the embryo to be genetically related to at least one member of the commissioning couple.

  • Embryo Donation: Surrogacy does not allow for embryo donation.

  • Divorcees and Widows: Divorced or widowed women aged 35 to 45 can offer their eggs for surrogacy.

  • Non-Recognition of Citizenship: Children born to Indian couples using surrogacy outside the country will not be recognized as Indian citizens.

  • Responsibility in Case of Parental Death: If the commissioning couple dies before the child's birth, the nominated individuals in the surrogacy contract must raise the child. Later, they can choose to give up the child for adoption or to an orphanage.

  • Right to Information: Children born through surrogacy have the right to know their origins when they turn 18 and can trace the identity of the surrogate mother.

surrogacy law in india

Surrogacy under the Indian Constitution

The practice of surrogacy in India has garnered attention not only for its ethical and moral complexities but also for its constitutional implications. Under the Indian Constitution, various fundamental rights, including the Right to Life, Personal Liberty, and Privacy (Article 21), are relevant when considering the legal framework for surrogacy. This article explores the constitutional aspects of surrogacy in India, focusing on the rights of women and the need for effective regulation.

Constitutional Rights and Surrogacy

  1. Right to Life and Personal Liberty (Article 21):

  • Article 21 of the Indian Constitution guarantees every person the right to life and personal liberty. This right has been expansively interpreted by the judiciary to encompass a wide range of freedoms and entitlements.

  • In the context of surrogacy, the right to life includes the right to make choices about one's reproductive health and family life. It implies that individuals have the autonomy to decide whether to opt for surrogacy as a means to have a child.

  • The concept of personal liberty extends to the right to privacy and dignity, which are closely linked to reproductive choices. Surrogacy, as a reproductive option, should be protected as a matter of personal liberty, free from unwarranted interference.

  1. Right to Earn a Living:

  • While the Indian Constitution does not explicitly mention the right to earn a living as a fundamental right, it is a natural extension of the right to life and personal liberty.

  • Surrogacy, especially when seen as a form of economic labor, implicates a woman's right to earn a livelihood. For many surrogate mothers, participating in surrogacy may provide financial stability and opportunities for their families.

Reproductive Rights and Autonomy

  1. Reproductive Choices:

  • The right to reproductive choices is an essential facet of personal liberty. It encompasses the right to decide whether to have children, when to have them, and how to have them.

  • Surrogacy is one of the methods that individuals or couples may choose to exercise their reproductive rights. Restricting access to surrogacy without a compelling reason could be seen as an infringement on these rights.

  1. Reproductive Autonomy:

  • Reproductive autonomy refers to an individual's right to make decisions about their own reproductive health and family planning, free from coercion or interference.

  • The High Court of Andhra Pradesh, in the case of B.K. Parthasarathi v. Government of Andhra Pradesh, recognized the concept of reproductive autonomy as a fundamental right. This decision reaffirms the importance of an individual's ability to make choices regarding surrogacy.

The Need for Regulation

While the constitutional rights of individuals to choose surrogacy are significant, it is equally important to acknowledge that unregulated commercial surrogacy can lead to exploitative practices.

Surrogate women, particularly those from economically disadvantaged backgrounds, may face exploitation, inadequate compensation, and lack of proper medical care. Hence, there is a compelling need for an active legal framework to regulate the practice of surrogacy in India.

Regulation can strike a balance between protecting the constitutional rights of individuals and preventing the commodification and exploitation of surrogate mothers. The Surrogacy Regulation Act of 2021 represents a step in this direction by introducing eligibility criteria for couples, ensuring the well-being of surrogate mothers, and prohibiting commercialization.

Challenges and Concerns in the Surrogacy

While the Surrogacy Regulation Act of 2021 represents a significant step towards regulating surrogacy in India and addressing ethical concerns, it also presents challenges and concerns that need to be addressed. Excluding LGBTQIA+ couples and live-in partners raises questions about equal access to surrogacy services. Additionally, the ban on commercial surrogacy and the export of embryos may have unintended consequences for the surrogacy industry. Major issues are: -

1.Exclusion of LGBTQIA+ Community:

The Surrogacy Regulation Act of 2021 has raised significant concerns regarding its exclusionary approach towards the LGBTQIA+ community. The Act prohibits homosexual couples from availing altruistic surrogacy services. This exclusion has sparked debates about discrimination and inconsistency with principles of equality and human rights.

Navtej Singh Johar v. The Union of India: In the landmark judgment of Navtej Singh Johar v. The Union of India, the Supreme Court of India declared Section 377 of the Indian Penal Code unconstitutional. This ruling decriminalized homosexuality and recognized the rights of LGBTQIA+ individuals. The Act's exclusion of homosexual couples from surrogacy contradicts the principles established in this case, as it denies them equal access to surrogacy as a means of biological parenthood.

2. Exclusion of Live-In Relationships:

Another pressing concern is the Act's failure to include live-in partners within its regulatory scope. Live-in relationships have been recognized and protected by Indian courts as valid partnerships, and couples in such relationships often raise families together. The Act's exclusion of live-in partners from surrogacy arrangements raises questions about equal access to surrogacy for various sections of society.

S. Khushboo v. Kanniammal: In the case of S. Khushboo v. Kanniammal, the Supreme Court of India ruled that live-in relationships are covered and protected by Article 21 (right to life). This decision affirmed the legal validity of live-in partnerships. The Act's omission of live-in partners from its ambit appears inconsistent with the judicial recognition of these relationships and may be considered discriminatory.

3. Potential Impact on Surrogacy Industry:

The Act imposes a ban on commercial surrogacy and the export of embryos. While these measures aim to prevent the exploitation of surrogate mothers and safeguard ethical surrogacy practices, they also raise concerns about the impact on the surrogacy industry's viability and accessibility.

Commercial Surrogacy: The ban on commercial surrogacy may limit the options available to intended parents and may result in reduced access to surrogacy services. It might also lead to the underground or unregulated surrogacy market, potentially increasing risks for both surrogate mothers and intended parents.

Export of Embryos: The Act prohibits the export of embryos to foreign countries, which can affect the global demand for surrogacy services in India. This restriction may lead to unintended consequences, including the decline of India as a surrogacy destination, impacting the surrogacy industry's sustainability.

Surrogacy in India presents complex legal, ethical, and constitutional issues. While individuals have the constitutional right to make reproductive choices and earn a livelihood, it is crucial to address the potential for exploitation and unethical practices within the surrogacy industry.

The establishment of a comprehensive legal framework, as outlined in the Surrogacy Regulation Act of 2021, is essential to strike a balance between protecting constitutional rights and ensuring the ethical and safe practice of surrogacy in India. This framework must evolve to address changing societal patterns and continue to uphold the principles of justice, dignity, and equality enshrined in the Indian Constitution.

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