SURROGACY
IN INDIA – SOCIAL ISSUE
News: Supreme Court allows surrogacy,
strikes down rule banning use of donor gametes
What's
in the news?
●
The Supreme Court has protected the right
of parenthood of a woman, suffering from a rare medical condition, by staying
the operation of a law which threatened to wreck her hopes to become a mother
through surrogacy.
●
The government in the Supreme Court has
said that same-sex couples and live-in partners are not included in surrogacy
and assisted reproduction laws to avoid ‘misuse’ and provide children a
‘complete family’.
Government’s
stance:
●
Same-sex couples and live-in partners are
excluded from surrogacy and assisted reproduction laws to avoid ‘misuse.’
●
The welfare of the child should be
prioritized over any notions of equality among prospective parents or couples.
●
No special provisions or additional rights
have been granted to same-sex couples and live-in partners despite the
decriminalization of their relationships.
Surrogacy:
●
Surrogacy is defined by law as “a practice
whereby one woman bears and gives birth to a child for an intending couple” and
intends to hand over the child to them after the birth, as per The Surrogacy
(Regulation) Act, 2021 (SRA).
Need
for Surrogacy Regulation:
●
India has emerged as a hub for infertility treatment, attracting
people from the world – due to prevailing socio-economic inequities,
underprivileged women found an option to ‘rent their wombs’ and thereby make
money to take care of their expenses.
●
To
curb unethical practices - Lack of specific legislation had
led to unregulated growth of Commercial Surrogacy services. Hence, to curb
unethical practices related to issues of sex selection and exploitation of the
surrogate, specific legislation was required.
●
To
curb the exploitation of women - Due to the absence of
legal regulations and lack of implementation, surrogate mothers faced multiple
challenges – there had been many cases of death related to surrogacy which
neither commissioning parents nor the doctors were ready to take responsibility
for.
●
Legal
Issues - Sometimes, Indian adoption laws or citizenship laws
of some other countries also create problems. For example, Germany gives
citizenship by mother; this creates issues in determining the nationality of a
child.
Distinct
features of the Surrogacy (Regulation) Act, 2021:
1.
Definition of surrogacy:
●
It defines surrogacy as a practice where a
woman gives birth to a child for an intending couple with the intention to hand
over the child after the birth to the intending couple.
2.
Regulation of surrogacy:
●
It prohibits commercial surrogacy, but
allows altruistic surrogacy which involves no monetary compensation to the
surrogate mother other than the medical expenses and insurance.
3.
Purpose:
●
Purposes for which surrogacy is permitted:
Surrogacy is permitted when it is:
○
For intending couples who suffer from
proven infertility.
○
Altruistic.
○
Not for commercial purposes.
○
Not for producing children for sale,
prostitution or other forms of exploitation.
○
For any condition or disease specified
through regulations.
4.
Eligibility criteria:
●
The intending couple should have a
‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the
appropriate authority ex. District Medical Board.
●
Any couple that has ‘proven infertility’
are candidates. The ‘intending couple’ as the Act calls them, will be eligible
if they have a ‘certificate of essentiality’ and a ‘certificate of eligibility’
issued by the appropriate authority.
5.
Eligibility criteria for surrogate mother:
To obtain a certificate
of eligibility from the appropriate authority, the surrogate mother has to be:
●
A close relative of the intending couple.
●
A married woman having a child of her own.
●
25 to 35 years old.
●
A surrogate only once in her lifetime.
●
Possess a certificate of medical and
psychological fitness for surrogacy.
●
Further, the surrogate mother cannot
provide her own gametes for surrogacy.
6.
Appropriate authority:
●
The central and state governments shall
appoint one or more appropriate authorities.
●
The functions of the appropriate authority
includes.
○
granting, suspending or cancelling
registration of surrogacy clinics.
○
enforcing standards for surrogacy clinics.
7.
National and State Surrogacy Boards:
●
The central and the state governments
shall constitute the National Surrogacy Board (NSB) and the State Surrogacy
Boards (SSB), respectively.
8.
Parentage and abortion of surrogate child:
●
An abortion of the surrogate child
requires the written consent of the surrogate mother and the authorisation of
the appropriate authority. This authorisation must be compliant with the
Medical Termination of Pregnancy Act, 1971.
●
The surrogate mother will have an option
to withdraw from surrogacy before the embryo is implanted in her womb.
Issues
with Surrogacy Law:
1.
Exclusion:
●
The eligibility criteria for legally
availing surrogacy excludes a chunk of society like unmarried females, LGBTQ+
persons, live-in couples and single parents who wish to have surrogate child.
2.
Paternalistic:
●
The altruistic model expects a woman to go
through the physical and emotional tolls of surrogacy free of cost and only out
of compassion.
3.
Autonomy of Woman:
●
The banning of commercial surrogacy moves
from the rights-based approach to a needs-based approach, thus removing the
women’s autonomy to make their own reproductive decisions and right to
parenthood.
4.
Limitations of Altruistic Surrogacy:
●
Having a relative as a surrogate mother
may lead to emotional complications.
●
Altruistic surrogacy also limits the
option of the intending couple in choosing a surrogate mother as very limited
relatives
5.
Children with Disability:
●
The Act considers having children with
physical and special needs as childless.
●
It further encourages considering
surrogacy if the couple has a child with a life-threatening disorder. This
clause directly violates the right of the children with the disability, thus
denying them treatment with dignity.
By focusing on
inclusivity, ethics and medical advancements, India can establish a robust
legal framework for surrogacy that respects individuals' rights, ensures the
well-being of all parties involved, and supports those seeking to start
families through assisted reproductive technologies.