Introduction
The emergence of reproductive technologies has revolutionized the way we approach parenthood. Surrogacy, a practice in which a woman carries a pregnancy for another person or couple, has become an essential part of assisted reproduction. However, it also raises critical ethical, legal, and social questions. Over the years, the regulation of surrogacy in India has been a subject of intense debate. Concerns related to exploitation, commercial surrogacy, and the rights of surrogate mothers and children have prompted the Indian government to step in with the Surrogacy (Regulation) Act, 2021. This landmark legislation attempts to address the complex issues surrounding surrogacy, aiming to protect the rights of all parties involved, prevent exploitation, and create a framework for ethical practices.
The enactment of the Surrogacy Regulation Act marks a significant shift in India’s approach to surrogacy, which was previously governed by a lack of clear and comprehensive laws. With this legislation, India seeks to strike a balance between fostering the growth of assisted reproduction technologies and ensuring fairness, ethics, and equality in surrogacy arrangements. The Act has generated much legal, social, and ethical discussion. This article aims to explore whether the Surrogacy Regulation Act of 2021 is the right step towards an egalitarian and inclusive society by analyzing its provisions, recent trends, and landmark judgments related to surrogacy in India.
Background of Surrogacy in India
India has been one of the leading destinations for international surrogacy, often referred to as the “surrogacy hub of the world,” due to its low cost and the availability of high-quality medical services. This led to an influx of foreign couples seeking surrogates in India. The commercial surrogacy industry boomed in the 2000s, with numerous fertility clinics offering surrogacy services. However, this expansion was not without its challenges.
The lack of regulation led to several ethical and legal concerns, particularly regarding the exploitation of surrogate mothers. These women, often from underprivileged backgrounds, were subjected to physical, emotional, and economic risks with little legal protection. Additionally, the rights of children born through surrogacy were often murky, with issues related to nationality, parentage, and inheritance.
In response to growing concerns about the lack of regulation and the exploitation within the industry, the Indian government introduced the Assisted Reproductive Technology (Regulation) Bill, in 2014, followed by the Surrogacy (Regulation) Bill, of 2016, which eventually evolved into the Surrogacy (Regulation) Act, 2021.
Overview of the Surrogacy Regulation Act, 2021
The Surrogacy (Regulation) Act, 2021 seeks to regulate and monitor surrogacy practices in India. The Act establishes a comprehensive legal framework for both altruistic and commercial surrogacy, with a primary focus on protecting the rights of surrogate mothers, intended parents, and children born through surrogacy.
- Ban on Commercial Surrogacy: One of the most significant provisions of the Act is the ban on commercial surrogacy. The Act only allows altruistic surrogacy, where the surrogate mother is compensated for medical expenses and insurance but is not paid for her services. This aims to eliminate the profit-driven commercial surrogacy industry, which has been criticized for exploitation.
- Eligibility Criteria for Intended Parents: The Act specifies that surrogacy is allowed only for married Indian couples who have been married for at least five years and are infertile. The couple must be between 23 and 50 years of age (for women) and 26 to 55 years (for men). The legislation also restricts the practice of surrogacy to heterosexual couples, excluding LGBTQ+ couples and single individuals from seeking surrogacy.
- Regulation of Surrogate Mothers: The Act provides clear guidelines regarding the eligibility of surrogate mothers. A surrogate must be a married woman aged between 25 and 35 years, and she can only act as a surrogate once in her lifetime. The surrogate mother must be physically and mentally fit and must not have any children of her own who are below the age of 18 years.
- Surrogacy Boards: The Act establishes National and State Surrogacy Boards responsible for regulating surrogacy practices, registering clinics, and monitoring compliance with the law. These bodies will also oversee the ethical and medical aspects of surrogacy.
- Rights of Children Born Through Surrogacy: The Act ensures that children born through surrogacy have the same rights as children born through natural conception. The intended parents will be legally recognized as the child’s parents from birth, and the child will inherit the parents’ rights and property.
- Punishments and Penalties: The Act imposes stringent penalties for those violating the provisions of the law. This includes penalties for those involved in commercial surrogacy and clinics that engage in unethical practices. The punishment can range from fines to imprisonment.
Recent Trends in Surrogacy
The introduction of the Surrogacy Regulation Act, 2021 represents a significant step towards curbing the exploitation and commercialization of surrogacy in India. However, several trends and challenges must be considered in evaluating the effectiveness of this legislation:
- The shift from Commercial to Altruistic Surrogacy: The Act marks a shift from the widely practised commercial surrogacy model to altruistic surrogacy. While this shift is seen as a positive step towards protecting surrogate mothers from exploitation, it also raises concerns about the sustainability of altruistic surrogacy. Critics argue that the absence of financial compensation may make it difficult for women from economically disadvantaged backgrounds to volunteer as surrogates, thus limiting the availability of surrogate mothers.
- Exclusion of LGBTQ+ and Single Parents: One of the most controversial aspects of the Act is its exclusion of LGBTQ+ couples and single individuals from the surrogacy process. Despite growing acceptance of LGBTQ+ rights in India, the Act continues to deny surrogacy rights to these groups. Legal challenges to this exclusion are expected, as it raises concerns about equality and non-discrimination.
- Commercial Surrogacy Moving Abroad: With the ban on commercial surrogacy in India, there has been a growing trend of Indian couples seeking surrogacy services abroad, particularly in countries like Ukraine, the United States, and Georgia, where commercial surrogacy is still permitted. This trend has raised concerns about the potential for exploitation in foreign countries, as well as the loss of income and business opportunities for Indian fertility clinics.
Landmark Judgments on Surrogacy
Several landmark judgments in India have shaped the current legal landscape of surrogacy. These cases have highlighted key issues related to the rights of surrogate mothers, intended parents, and children born through surrogacy.
- Baby Manji Yamada v. Union of India (2008): This case brought international attention to the issue of surrogacy in India. Baby Manji was born to a Japanese couple through surrogacy, but the parents separated before the birth, leaving the child stranded in India. The Supreme Court ruled that the child’s rights to parentage and nationality must be determined based on Indian law. The judgment emphasized the need for clearer legal frameworks regarding the status of children born through surrogacy.
- Jan Balaz v. Union of India (2017): In this case, the Supreme Court addressed the issue of surrogacy for foreign nationals in India. The court held that foreign couples could not use Indian surrogates unless they fulfilled specific conditions, including demonstrating their inability to have children. The ruling highlighted the need for stricter regulation of the surrogacy industry to prevent exploitation and protect the rights of children.
- The Right to Identity and Parentage in Surrogacy: The Surrogacy Regulation Act, 2021 aligns with the Supreme Court’s emphasis on the right to identity and parentage for children born through surrogacy. The legislation ensures that children born via surrogacy are not discriminated against and have the same rights as children born naturally. This is in line with previous rulings, such as in Baby Manji Yamada v. Union of India, where the Court recognized the child’s right to claim parentage.
Is the Surrogacy Regulation Act a Step Towards an Egalitarian and Inclusive Society?
The Surrogacy (Regulation) Act, 2021 represents a move towards a more regulated and ethical surrogacy industry. By prohibiting commercial surrogacy and placing stringent regulations on the practice, the law aims to protect vulnerable surrogate mothers from exploitation and ensure that surrogacy arrangements are conducted safely and ethically.
However, the Act has faced criticism for its exclusionary provisions, particularly the restriction on surrogacy for LGBTQ+ couples and single individuals. Many argue that the law fails to embrace the diversity of modern family structures and discriminates against non-traditional family units. In this context, the law could be seen as not entirely inclusive, as it perpetuates heteronormative ideals about parenthood.
Moreover, the emphasis on altruistic surrogacy raises concerns about the availability of surrogates, particularly for economically disadvantaged women who may be reluctant to become surrogates without financial incentives. This could undermine the goal of creating a fair and ethical surrogacy framework.
On the positive side, the Act’s provisions aimed at protecting the rights of children born through surrogacy, as well as the establishment of regulatory bodies to monitor surrogacy practices, suggest a commitment to creating a more inclusive society. The recognition of children born through surrogacy as having the same rights as naturally conceived children represents a significant step toward equality.
Conclusion
The Surrogacy (Regulation) Act, 2021 is an important development in India’s approach to surrogacy, seeking to regulate the practice and protect the rights of all involved. However, while it takes significant strides towards ensuring the protection of surrogate mothers and children born through surrogacy, it raises concerns about inclusivity and equality. The exclusion of LGBTQ+ and single individuals from surrogacy, as well as the shift to altruistic surrogacy, creates challenges that may need to be addressed in future revisions of the law.
Ultimately, while the Surrogacy Regulation Act, of 2021 is a step forward in the regulation of surrogacy in India, it must continue to evolve to create a more inclusive and egalitarian framework that addresses the needs of all individuals seeking surrogacy as a means of parenthood. As society progresses and new challenges emerge, the legal framework surrounding surrogacy must adapt to ensure that it remains fair, ethical, and inclusive for all.
Contributed By – Nitya Agarwal (Intern)