Surrogacy, which is when a woman carries and gives birth to a child for another person or couple, in most parts of the world has been a strict matter of legal regulation and control. The Surrogacy Regulation Act, 2021, tried to regulate surrogacy by providing a structured framework concerning ethical considerations and the rights of the surrogate mother, welfare for children born out of surrogacy in the case of India. The Act underwent a number of crucial amendments, however, in the light of changing public feeling, legal challenge, and moral dilemma.
Overview of Surrogacy and Types
Surrogacy is a method whereby the surrogate, or more commonly called gestational carrier, agrees to the carrying of a pregnancy and the delivery of a child for intended parents who otherwise could not become parents on their own. From there, surrogacy breaks down into two main options:
• Altruistic Surrogacy: No compensation is given other than reimbursement of expenses incurred for medical treatment and purchase of insurance for the surrogate.
•Commercial Surrogacy: It is the monetary compensation other than for the medical expenses, which was prohibited under the Surrogacy Regulation Act of 2021.
This differentiation between types is important because it affects aspects of regulation and to great extents, even the ethical considerations that surround surrogacy arrangements.
THE SURROGACY (REGULATION) ACT, 2021: KEY PROVISIONS
The Surrogacy Regulation Act of 2021 stipulated stringent regulations with regard to surrogacy in India. Some major stipulations of the Act include:
Eligibility Criteria of Intended Parents: Only legally married Indian couples, with the woman in the age bracket of 25-50 years and the man between the ages of 26 -55 years, are eligible. They must not have any biological, adopted, or surrogate child prior to coming for surrogacy.
Commercial Surrogacy Banned: This direct legislation also prohibits commercial surrogacy, meaning surrogacy ‘that is performed with the primary purpose of making profit from the process that involves exploitation of the surrogate mother’. If convicted, any act in contravention of this provision shall be punishable with imprisonment and fine.
Altruistic surrogacy only: This means that the law is only for altruistic surrogacy where, on grounds of surrogacy, a surrogate mother could be compensated with the cost of medicines and gain insurance cover. This provision seeks to protect the rights and dignity of surrogate mothers by doing away with financial exploitation.
CHALLENGES AND CRITICISMS OF THE SURROGACY REGULATION ACT, 2021
Nevertheless, the Act, despite its great ideals, has been criticized on numerous fronts and challenged on the following:
• Rights and Autonomy: Critics on the other hand say that prohibiting commercial surrogate parenting infringes upon the reproductive choices a woman can make regarding her body. They support this further by stating that if compensation is only limited to the recovery of medical expenses, under the Act, surrogate mothers might still be under exploitative situations as their economic vulnerability might lead them to have no access to proper health or financial care.
• Patriarchal Norms: The Act will carry on the institution’s traditional patriarchal norms through surrogacy that excludes access based on factors: marital status and biological parenthood. This kind of exclusionary stance reeks of discrimination toward single individuals, same-sex couples, and unmarried couples who plan to have families via surrogacy.
• Emotional and Social Complications: Altruistic surrogacy usually involves a friend or relative as a surrogate and hence has possibilities of complicated emotional dynamics and strained relationships. This limitation on choice of surrogate from a more significant pool can limit the choices for intending parents and surrogate mothers alike.
AMENDMENTS TO THE SURROGACY REGULATION ACT
Recent amendments to the Surrogacy Regulation Act of 2021 prove that surrogacy regulation can never be held static in India. In March 2023 itself, the government issued a notification disallowing the use of donor gametes, either eggs or sperm, in surrogacy arrangements. This was done with the intention of restricting surrogacy to cases where both the gametes are off the intending couple itself, in a way limiting the options for a couple with certain medical conditions.
The Indian Supreme Court has been very vigorously interpreting and testing these amendments. Petitions challenging the prohibition of donor gametes bring out questions of law and ethics that are intertwined with questions of reproductive rights and medical imperatives.
In the face of public and judicial scrutiny, the government is reviewing the ban on gametes from donors in recognition of denial’s impact on people with medical conditions that would impose an imperatively alternative mode of reproduction.
IMPLICATIONS AND FUTURE DIRECTIONS
The Surrogacy Regulation Act, 2021, and further amendments, framed against the backdrop of assisted reproductive technologies bring forth the tipping balance between regulations and individual rights. The way ahead is to reach a consensus on:
• Inclusiveness: Ensuring that regulatory frameworks remain inclusive and respect the varied needs and rights of persons seeking surrogacy, including single parents, same-sex couples, unmarried individuals.
• Ethical considerations: Balancing ethical issues such as surrogate mothers’ rights, protection against exploitation, welfare of children born of surrogacy with the right to reproductive autonomy.
• Advances in Medicine: Updating regulations to address new medical advances and to make them more in line with contemporary social attitudes regarding families and assisted reproduction.
Conclusion
The Surrogacy Regulation Act, 2021, and its consequent amendments have been an ABLE step towards the regulation of surrogacy in India. Continued legal challenges, ethical debates, and societal expectations call for further reaching out and adaptation of policy to finally balance individual rights with public interests. It is only upon negotiation of these complexities that India will be able to constitute a robust legal framework that safeguards dignity and the rights of persons entering into surrogacy arrangements.
Contributed By- Aanya Bhargava
Kamala Nehru College (UoD) (2021-2024)