The Supreme Court of India recently ruled that the age limits under the Surrogacy (Regulation) Act, 2021, do not apply to couples who had frozen their embryos and initiated the surrogacy process before the law came into force on January 25, 2022. This ruling clarifies that those couples who had already begun the surrogacy process prior to the enactment of the Act are not bound by the new age limits for surrogacy, allowing them to proceed with their existing arrangements.
The Surrogacy (Regulation) Act, 2021, was passed to regulate surrogacy practices in India. Its main objectives are to protect the rights of surrogate mothers, prevent exploitation, and ensure ethical practices in surrogacy arrangements. The law significantly overhauls the surrogacy landscape in India, especially by distinguishing between altruistic and commercial surrogacy.
Prohibition of Commercial Surrogacy
The Act prohibits commercial surrogacy, i.e., any financial compensation or profit-making from surrogacy arrangements, other than covering medical and insurance expenses.
Exploitation Prevention: The law aims to prevent the exploitation of women, who may be vulnerable to being coerced or lured into commercial surrogacy contracts.
Altruistic Surrogacy
The Act permits altruistic surrogacy, where a surrogate mother helps another individual or couple without any monetary compensation other than medical and insurance costs.
Surrogacy Clinics Regulation: Surrogacy clinics must be registered under the Act to operate legally. They are prohibited from performing any surrogacy procedures unless they are registered.
Regulation of Surrogacy Clinics and Related Parties
The Act prohibits any commercial surrogacy involvement by individuals, including gynaecologists, embryologists, and paediatricians.
It also ensures that no surrogacy procedure can be initiated without a certificate of essentiality from the intended couple.
Eligibility Criteria for Surrogacy
For Surrogate Mothers:
She must be a married woman with at least one child of her own.
The surrogate must be between the age of 25-35 years at the time of implantation.
She cannot act as a surrogate more than once and cannot use her own gametes for the process.
For Intended Parents:
The intended couple must be married for at least 5 years.
The woman must be between 23-50 years and the man between 26-55 years.
They must be Indian nationals and have no surviving children, whether biological or adopted, or from any earlier surrogacy procedures.
The intended couple must obtain a certificate of essentiality to initiate surrogacy.
Rights of the Child Born via Surrogacy
The child born through surrogacy is considered the biological child of the intended couple and is entitled to all rights and privileges available to a natural child.
Surrogate Mother’s Rights and Protection
The Act provides strong safeguards for the surrogate mother, ensuring that she is not coerced into surrogacy and has the right to consent throughout the process, particularly in the case of abortion.
The prohibition of commercial surrogacy is seen as a significant step toward protecting women from potential exploitation, especially in the face of a burgeoning surrogacy industry in India.
The shift to altruistic surrogacy ensures that women acting as surrogates are not financially exploited, but only compensated for the medical expenses and risks they undertake.
The Act mandates that surrogacy clinics must be registered and comply with a set of stringent standards to prevent unethical practices.
The emphasis on the registration of clinics ensures transparency and accountability in the surrogacy process.
The Act's restrictions, particularly concerning the age limits for both surrogate mothers and intended parents, aim to ensure that surrogacy is carried out responsibly and in a way that is in the best interest of the child born out of the arrangement.
However, these strict requirements can sometimes lead to challenges for couples who have had embryos frozen before the law was passed, as highlighted by the Supreme Court’s recent ruling.
The Act ensures that children born through surrogacy have all the legal rights of a biological child, addressing concerns about inheritance, citizenship, and other legal matters.
India has long been a preferred destination for individuals and couples seeking surrogacy services, largely due to its cost-effectiveness and the growing number of fertility clinics across the country. India’s cheaper surrogacy services have attracted a significant number of foreign clients, making it a global hub for the surrogacy industry.
In 2002, the Indian Council of Medical Research (ICMR) laid out guidelines for surrogacy that made it legal, but these lacked legislative backing, resulting in an unregulated market.
By 2012, the surrogacy industry had ballooned into a $400 million business, with over 3,000 fertility clinics operating in India, as per a UN-backed study.
This booming industry, however, faced numerous ethical and legal issues due to the lack of regulation, leading to exploitation, especially of surrogate mothers. There were concerns regarding the rights of the surrogate, lack of medical insurance, child custody, and the absence of transparency in contracts.
Surrogacy is an arrangement in which a woman (the surrogate mother) agrees to carry a pregnancy for another person or couple (the intended parents). After the child is born, the surrogate mother relinquishes parental rights, and the intended parents become the legal parents of the child. Surrogacy may be chosen when pregnancy is medically impossible, there are significant health risks for the biological mother, or when a same-sex couple chooses surrogacy as a method of having children.
Altruistic Surrogacy:
The surrogate mother does not receive any financial compensation beyond medical expenses.
This is usually when the surrogate is a relative of the intended parents.
Commercial Surrogacy:
The surrogate mother is paid beyond medical expenses.
In this case, the surrogate is unrelated to the intended parents, and it is often more transactional in nature.
Traditional Surrogacy:
The surrogate mother uses her own eggs, which are fertilized by the intended father’s sperm (or a donor’s sperm) through artificial insemination.
The surrogate mother is the biological mother of the child, which can lead to legal complications over parentage.
Gestational Surrogacy:
The egg of the intended mother (or a donor egg) is fertilized by the intended father’s sperm, and the embryo is implanted into the surrogate’s uterus.
In this case, the biological mother is the woman whose egg was used, while the surrogate is simply the birth mother.
Access for Infertile Couples, Singles, and LGBT: Surrogacy allows individuals or couples who are unable to conceive naturally, including single people and members of the LGBT community, to become parents.
Genetic Connection: Through gestational surrogacy, one or both parents can be genetically related to the child.
Higher Success Rate: Surrogates, who have previously carried successful pregnancies, have a proven uterus, leading to higher chances of successful pregnancies compared to fertility treatments.
Greater Control: Surrogacy often provides the intended parents with more control over the pregnancy than adoption.
Less Restrictive than Adoption: Surrogacy may offer fewer barriers for parents, particularly those who are ineligible for adoption due to age restrictions or other reasons.
While surrogacy offers several benefits, the practice in India has faced significant challenges due to a lack of regulation and ethical concerns:
There have been several cases of death associated with surrogacy, where neither the commissioning parents nor the doctors took responsibility.
Citizenship and Adoption Laws: Surrogacy laws can clash with adoption or citizenship laws, leading to complications in determining the nationality of children born via surrogacy.
For example, Germany gives citizenship by mother, which sometimes creates legal issues in determining the child’s nationality when the birth occurs in India.
There were no clear laws or accountability for surrogates concerning:
Fair compensation.
Maternal health care.
The right to abortion and proper medical insurance during pregnancy and post-birth.
Surrogacy arrangements often result in multiple parent figures, including biological donors, surrogate mothers, and commissioning parents. Legal clarity on who is considered the legal parent and the rights of the child are not always addressed.
There have been reports of forced surrogacy and instances where women, especially from poorer backgrounds, were pressured or coerced into becoming surrogates.
In some cases, commissioning parents have abandoned the surrogate mother or the child if they were unhappy with the outcome of the surrogacy.
Surrogate mothers often don’t receive a copy of the contract signed by the intended parents. As a result, they often have little recourse for disputes. Furthermore, women often stay in shelter homes with insufficient care and support.
The ICMR guidelines (2005) were insufficient in addressing key issues like sex selection, accountability of agencies, and protecting the surrogate mother's physical and emotional well-being.
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