Surrogacy in India Law

Surrogacy is a complex process that involves a woman carrying a child for intended parents who are unable to conceive or carry a pregnancy to full term. In India, surrogacy has gained significant attention and has become a popular choice for couples and individuals seeking to build a family. However, to regulate and address the concerns associated with surrogacy, India has implemented specific laws and regulations. This article will delve into the legal framework surrounding surrogacy in India, highlighting key sections and acts that govern this practice.

Introduction

Surrogacy is a reproductive option that offers hope to those who are unable to conceive naturally or carry a child to term. In India, it has become a viable solution for couples and individuals struggling with infertility or medical conditions that prevent them from having children. The Indian government recognized the need to regulate surrogacy and introduced the Surrogacy (Regulation) Bill, 2020, which aims to establish comprehensive guidelines for the practice.

Understanding Surrogacy

Before exploring the legal aspects, it is essential to understand the concept of surrogacy. Surrogacy involves a woman, known as the surrogate mother, carrying a child on behalf of intended parents. There are two primary types of surrogacy: commercial and altruistic. Commercial surrogacy involves a monetary arrangement between the surrogate and the intended parents, while altruistic surrogacy is undertaken without financial compensation. Both forms of surrogacy have their own set of legal considerations.

Surrogacy Laws in India

In India, the Surrogacy (Regulation) Bill, 2020, is the cornerstone of the legal framework governing surrogacy. This bill aims to regulate the practice, protect the rights of all parties involved, and prevent commercial exploitation of surrogates. It provides a clear definition of surrogacy and outlines the eligibility criteria for intended parents.

The Surrogacy (Regulation) Bill, 2020

The Surrogacy (Regulation) Bill, 2020, emphasizes the importance of ethical and responsible surrogacy practices. It prohibits commercial surrogacy, allowing only altruistic surrogacy for Indian citizens. The bill establishes the National Surrogacy Board and State Surrogacy Boards to oversee the regulation and implementation of the law. These boards play a crucial role in granting certificates of eligibility to intended parents and ensuring the well-being of surrogates.

Eligibility Criteria for Intended Parents

The Surrogacy (Regulation) Bill, 2020, lays down specific eligibility criteria for intended parents. To be eligible for surrogacy, the bill states that the couple or individual must be Indian citizens who have been married for at least five years. It also mandates that they should be within the reproductive age range and have a certificate of essentiality and a certificate of eligibility from the appropriate authority.

Rights and Obligations of Parties Involved

The bill emphasizes the rights and obligations of all parties involved in the surrogacy process. It safeguards the rights of the surrogate mother, ensuring her physical and emotional well-being throughout the journey. The intended parents are granted the right to reasonable expenses related to the surrogacy, but commercialization of the process is strictly prohibited. The bill establishes the legal parentage of the child born through surrogacy, providing certainty and protection for all parties.

Commercial vs. Altruistic Surrogacy

One of the significant provisions in the Surrogacy (Regulation) Bill, 2020, is the prohibition of commercial surrogacy. This step was taken to address concerns of exploitation and commodification of surrogates. The bill promotes altruistic surrogacy, where the surrogate mother undertakes the process without any financial gain. This shift aims to ensure that surrogacy is driven by compassion and not monetary incentives.

Procedure for Surrogacy in India

The Surrogacy (Regulation) Bill, 2020, also outlines the procedure for surrogacy in India. It mandates the involvement of registered assisted reproductive technology (ART) clinics and surrogacy agencies, which act as intermediaries between intended parents and surrogate mothers. The bill specifies the legal requirements and documentation needed for the entire process, ensuring transparency and accountability.

Role of ART Clinics and Agencies

ART clinics and surrogacy agencies play a pivotal role in facilitating the surrogacy process in India. They provide medical expertise, psychological support, and legal guidance to all parties involved. These institutions ensure that the surrogacy journey is conducted ethically and in accordance with the provisions outlined in the Surrogacy (Regulation) Bill, 2020.

Legal Safeguards for Surrogates

The Surrogacy (Regulation) Bill, 2020, includes several provisions to protect the rights and well-being of surrogate mothers. It mandates that the surrogate must be a close relative of the intending couple, and she must have her consent and the consent of her spouse, if married. The bill also requires insurance coverage for the surrogate, ensuring that any medical complications or emergencies are adequately addressed.

Ethical Concerns and Challenges

While the Surrogacy (Regulation) Bill, 2020, aims to provide a legal framework for surrogacy, it also raises ethical concerns and challenges. Critics argue that the bill's restrictions on commercial surrogacy may limit the options available to intended parents and lead to a decline in surrogacy services. There is an ongoing debate on balancing the protection of surrogates' rights and the reproductive choices of intended parents.

International Perspective on Surrogacy

Surrogacy laws and regulations vary across different countries, leading to diverse perspectives on the practice. Some countries have embraced commercial surrogacy, while others have completely banned it. It is essential to consider the international landscape of surrogacy to understand the contextual challenges faced by Indian lawmakers while formulating the Surrogacy (Regulation) Bill, 2020.

Success Stories and Impact

Surrogacy has brought joy and fulfilled dreams for numerous intended parents in India. Many couples and individuals have successfully built families through surrogacy, overcoming their struggles with infertility or medical conditions. The legal framework provided by the Surrogacy (Regulation) Bill, 2020, has contributed to ensuring the success and positive impact of surrogacy arrangements.

Criticisms and Debates

Like any complex legal issue, surrogacy has its share of criticisms and ongoing debates. Some argue that the Surrogacy (Regulation) Bill, 2020, is too restrictive and limits the reproductive choices available to intended parents. There are concerns regarding the potential exploitation of surrogate mothers under the altruistic surrogacy model. The bill continues to undergo scrutiny and discussion to strike a balance between regulation and individual autonomy.

Conclusion

The legal framework surrounding surrogacy in India, particularly through the Surrogacy (Regulation) Bill, 2020, reflects the country's commitment to ensuring ethical and responsible surrogacy practices. The bill's provisions aim to protect the rights and well-being of surrogate mothers, establish eligibility criteria for intended parents, and prevent commercial exploitation. While debates and criticisms exist, the legislation seeks to strike a balance between regulation and the fulfillment of the dreams of intended parents and surrogates alike.