The Legal Challenges Surrounding Surrogacy in India

An In-Depth Look at the Surrogacy (Regulation) Bill, 2021

Surrogacy has long been a contentious issue in India, oscillating between being a hopeful avenue for childless couples and a subject of ethical and legal debate. With the Surrogacy (Regulation) Bill, 2021, becoming a central piece of legislation, this article examines the current legal challenges surrounding surrogacy in India and the implications for intended parents, surrogates, and society at large.

Background

Surrogacy, a method where a woman agrees to carry and give birth to a child for another person or couple, has been practiced in India for decades. The country’s relatively affordable medical services and a large pool of women willing to become surrogates made it a popular destination for surrogacy. However, concerns over the exploitation of surrogates, lack of legal protection, and the ethical dimensions of the practice have prompted the government to introduce regulatory measures.

The Surrogacy (Regulation) Bill, 2021

The Surrogacy (Regulation) Bill, 2021, seeks to establish a comprehensive framework for regulating surrogacy practices in India. Below are key sections of the Bill and their implications:

1. Definition and Scope:

• Section 2(f): Defines surrogacy as an arrangement in which a woman carries and delivers a child for an intending couple with the intention of handing over the child after birth.
• Section 2(b): Defines altruistic surrogacy as surrogacy involving no monetary compensation to the surrogate mother other than medical expenses and insurance coverage.

2. Eligibility Criteria for Intending Parents:

• Section 4: Sets the eligibility criteria for intending parents. They must be Indian citizens, married for at least five years, and proven to be infertile. The couple must not have any surviving biological or adopted children, with exceptions for children with physical or mental disabilities or life-threatening illnesses.

3. Eligibility Criteria for Surrogate Mothers:

• Section 4: The surrogate mother must be a close relative of the intending couple, married, and have at least one biological child. She should be between 25 and 35 years of age and can only be a surrogate once in her lifetime.

4. National and State Surrogacy Boards:

• Section 14-19: Proposes the establishment of a National Surrogacy Board at the central level and State Surrogacy Boards at the state level. These boards will oversee and regulate surrogacy practices, provide guidance, and address grievances. They are also responsible for approving surrogacy clinics and ensuring compliance with the law.

5. Regulation of Surrogacy Clinics:

• Section 10: Mandates that all surrogacy clinics must be registered and adhere to the standards set by the National and State Surrogacy Boards. Regular inspections and audits will be conducted to ensure compliance with prescribed norms and ethical standards.

6. Prohibition of Commercial Surrogacy:

• Section 3: Strictly prohibits commercial surrogacy, penalizing those involved in the practice with imprisonment of up to 10 years and fines up to 10 lakh rupees. This provision aims to prevent the exploitation of surrogates and promote ethical practices.

7. Legal Framework and Parentage:

• Section 7: Provides a clear legal framework for establishing the parentage of the child born through surrogacy. The intending couple will be recognized as the legal parents, protecting the surrogate from any parental responsibilities or rights post-birth.

8. Insurance for Surrogate Mothers:

• Section 4(iii)(b): Requires the intending couple to provide a life insurance cover for the surrogate mother, ensuring her financial security during and after the pregnancy.

Legal Challenges and Implications

1. Access and Affordability: The transition from commercial to altruistic surrogacy has raised concerns about accessibility and affordability for many couples. With stricter eligibility criteria and the prohibition of commercial surrogacy, fewer women may be willing to become surrogates, potentially limiting options for intending parents.
2. Ethical and Social Concerns: The requirement for surrogates to be close relatives has sparked debates about the ethical and social implications. Critics argue that this may place undue emotional and psychological pressure on women to become surrogates for their family members. Additionally, the restriction could limit the availability of surrogate mothers, making it more challenging for intending parents to find suitable candidates.
3. Legal Rights and Protections: Ensuring the legal rights and protections for both surrogates and intending parents remains a significant challenge. Issues related to the custody of the child, the surrogate’s health and well-being, and the enforcement of surrogacy agreements require careful legal scrutiny. The Bill’s provisions must be effectively implemented to protect all parties involved and prevent exploitation.
4. Implementation and Enforcement: Effective implementation and enforcement of the Surrogacy (Regulation) Bill are crucial to its success. Establishing robust mechanisms for monitoring surrogacy practices, addressing grievances, and ensuring compliance with the law is essential to prevent exploitation and protect the rights of all parties involved. This includes regular inspections of surrogacy clinics, thorough vetting of surrogacy agreements, and strict penalties for violations.
5. Balancing Rights and Interests: The Bill attempts to balance the rights and interests of all stakeholders, including intended parents, surrogate mothers, and the child born through surrogacy. However, achieving this balance is complex and requires continuous evaluation and adaptation of the regulatory framework. The government must ensure that the law evolves to address emerging challenges and incorporates feedback from all affected parties.

Conclusion

The Surrogacy (Regulation) Bill, 2021, represents a significant step towards regulating surrogacy practices in India and addressing the ethical, social, and legal challenges associated with it. While the Bill aims to protect surrogates from exploitation and ensure ethical practices, it also presents new challenges in terms of accessibility, affordability, and the rights of intended parents and surrogates. As India navigates this complex legal landscape, continuous evaluation and adaptation of the regulatory framework will be essential to balance the needs and rights of all stakeholders involved in surrogacy. By doing so, India can ensure that surrogacy remains a viable and ethical option for those in need while safeguarding the welfare of surrogate mothers and the children born through this process.

Contributed by Aditya Gupta (Intern)
OP Jindal Global University