An overview of the Changing Landscape of Surrogacy in India: Implications of the Surrogacy Act 2021

Changing Landscape of Surrogacy in India: Implications of the Surrogacy Act 2021

The act of bearing and giving birth to a child on behalf of another person is referred to as "surrogacy" in Black's Law Dictionary. The "renting of the womb" is a term used in common parlance to describe such an arrangement. This arrangement raises a number of difficult moral, ethical, legal, and medical questions as well as complicated potential scenarios. Technology can help commissioning parents realize their hopes and aspirations, but there is also a potential that the surrogate mother may develop a bond with the child growing inside her womb. This poses a question to a woman's agency and autonomy with her own body and womb. One cannot completely rule out the potential of intermediaries or middlemen luring impoverished women in underdeveloped nations into surrogacy arrangements for a paltry fee in order to take advantage of them. There is a potential that the commissioning parents will divorce or pass away before the baby is even born, in which case the child will be undesired and face uncertainty about his or her rights and destiny. Congenitally disabled children, such as those with Down syndrome, are frequently given up by their intended parents. When it comes to cross-border arrangements, the complications go from bad to worse as it is cheap for the intending parents furthermore there are also visa issues and the possibility of the child being transferred to a country other than that in which the child was born and where the law may not recognize the existence of a surrogacy contract and parentage resulting from it. Surrogacy is a process that often involves the recruitment of surrogate mothers from developing countries to give birth to children for more affluent parents from developed countries. This process has led to the emergence of a divide between those who have and those who do not and has raised a number of questions, the most significant of which is the exploitation of children and human life. Surrogacy can be divided into two distinct categories: traditional and gestational. Traditional surrogacy involves the surrogate mother being the biological parent of the child, as the baby is conceived with the intended father's sperm. On the other hand, gestational surrogate care involves the surrogate mother not sharing any genetic link with the fetus, as the embryo is created through in vitro fertilization or other similar methods. If the egg is created with the reproductive organs of the contracting parents, then they are also the biological parents. Surrogacy can also be categorized as commercial or non-commercial, depending on whether the surrogate mother has been remunerated by the intended parents or not (except for the costs associated with the pregnancy).

Evolution in surrogacy law

Assisted Reproductive Technology Bill, 2013

The Assisted Reproduction Technology Bill, 2013, which had been pending for some time, did not permit commercial surrogacy that involved the exchange of money for purposes other than the payment of medical expenses for both the mother and child. Furthermore, the bill prohibited couples who had already had one child, foreign nationals or overseas citizens of India, holders of passports, live-in partners, unmarried individuals, homosexuals, and widows from opting for surrogacy.

Surrogacy (Regulation) Bill, 2016 and 2019

In 2016, the Surrogacy Regulation Bill was introduced in the Indian Parliament's lower house, the Lok Sabha, and proposed to allow only Indian heterosexual couples who had been married for at least five years and who had experienced infertility problems to seek altruistic or unpaid surrogate care, thus prohibiting commercial surrogacy. However, the 2016 bill lapsed due to the dissolution of the Parliament's session.

Surrogacy Regulation Act 2021

The Surrogacy Act, 2021 is India's first legislation that regulates the practices of surrogacy, however, there is still a strong societal resistance to the practice, particularly in cases where the intended couple does not have a viable egg and requires an egg donor for the procedure. This has raised various questions not only among couples seeking surrogacy as an option but also among medical professionals due to the lack of clarity in the legislation. Despite its intention to make surrogacy available to those the Act is inherently exclusionary and vague, leaving it open to interpretation and misinterpretation.

The Act’s Beneficiaries

The Act restricts the people who can avail these services to only two categories:

• An intending woman
• An intending couple

The Act defines an "intending couple" as an Indian male and female, aged 21 and 18 respectively, who have entered into a legally binding marriage, as referred to in Section 2(h) of the Act. Section 2(r) of the Act defines an intending couple as a couple who are intending to become parents through the use of surrogate care and have medical proof that necessitates the use of such care. The married couple must be between the ages of 23 and 50 for women and 26 and 55 for men. An intending woman is defined as a widow or a divorcee who is 35 to 45 years old and intends to use the service. Provided that the intended woman as well as the intending couple needs a certification of recommendation as per Section 4(ii)(a) from the National Assisted Reproductive Technology and Surrogacy Board constituted under Section 17 of the Act. Apart from the above-mentioned categories, no other person shall be allowed to avail the surrogacy services under this Act. This rules out a large segment of society like unmarried women who wish to experience motherhood but are unable to conceive. The irony here lies in the fact that despite this law ostensibly embracing modernity, it results in maintaining the orthodox taboo against embracing motherhood without marriage. The 2021 Act defines a couple as an Indian man and woman aged 21 and 18 respectively, and excludes any man and woman in a live in relationship who are intending to avail of these services. This law promotes the institution of marriage, limiting the definition of couple to those referred to in Section 2(h) of the Act. It also excludes couples who may be medically unfit or have chronic diseases that could make the unborn baby more susceptible to these diseases. However, Section 4(i)(e) of the Act permits surrogacy in cases where a condition or disease is specified in the Act, subject to the opinion of the Board.

Challenges:

• Abuse of the Surrogate and the Child:

It can be argued that the state should take action to prevent the exploitation of poor women through surrogacy and to safeguard the child's right to be born, however, the current Act fails to reconcile these two objectives.

• Reinforces Patriarchal Norms:

The Act upholds the traditional patriarchal values of our society that do not recognize the economic significance of women's labor and directly affects the fundamental rights of women to reproduce as provided for in Article 21 of the Constitution.

• Denies Legitimate income to Surrogates:

The prohibition of commercial surrogacy also eliminates the legitimate source of income of the surrogate mothers, thus reducing the number of women who are willing to undergo the process. In summary, this action indirectly denies children to the couples who choose to become parents.

• Emotional Complications:

In altruistic Surrogacy, Having a friend or relative as a Surrogate Mother can cause emotional complications not only to the intending parents but also to the Surrogate Child. This is because there is a lot of risk involved in the relationship during and after the Surrogacy Period. Altruistic Surrogacy also limits the Surrogacy Option for the intending couple as very few Relatives will be prepared to go through the Surrogacy Process.

• No Third-Party Involvement

In altruistic surrogacies, there is no involvement of a third party. This ensures that the intended couple is able to bear the financial burden of the medical and other associated expenses, which may not be feasible in an altruistic situation. Ultimately, a third-party assistance is provided to the intended couple and surrogate mother to assist them in navigating the intricate process.

• Legal Provisions:

The ART Regulation 2021 establishes a framework for the implementation of the Surrogacy Act by establishing the National Assisted Reproductive Technology and Surrogacy Council. The purpose of the Act is to regulate and supervise the operations of ART clinics and assisted reproductive technology banks, to prevent misuse, and to ensure the safe and ethical provision of ART services.

Conclusion

It is clear that the Act is a step in the right direction, as India is a major hub for these practices. However, it is essential to maintain a dynamic oversight in order to ensure that the law is able to keep up with the ever-evolving technology, moral requirements, and societal changes. The 90-day period that the government has allotted for obtaining a certificate of registration from clinics to practice surrogacy or engage in assisted reproductive services necessitates the establishment of a proper infrastructure to ensure effective implementation and to prevent any injustice to stakeholders due to the provisions of the Act. Furthermore, an agency for providing surrogates can be established under the Act to gain better control over the market and to prevent any exploitation of the surrogate mothers. Delays in the appointment of authorities are resulting in a delay in the application for registration to the Board and the application for certificates to avail of the surrogate services. The Parliament has adopted a paternalistic approach to the issue, choosing to outlaw commercial surrogacy entirely and impose restrictions on those who wish to use its services under the guise of the welfare and interest of society, rather than addressing the issues and exploitation brought on by the absence of regulations governing it. According to the Supreme Court in Baby Manji Yamada, commercial surrogacy is referred to as "renting of wombs," "outsourced pregnancies," or "baby farms" since there is money involved in addition to the obligatory medical and insurance expenditures. The money given to the surrogate is intended to help her raise her level of life and provide for her for a while, but it seems to have been forgotten.

Disclaimer: The author affirms that this article is an entirely original work, never before submitted for publication at any journal, blog, or other publication avenue. Any unintentional resemblance to previously published material is purely coincidental. This article is intended solely for academic and scholarly discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organizations, governments, or institutions.