The Surrogacy (Regulation) Act 2021: An overview

Abstract:

Motherhood is a fundamental aspect of human life, yet infertility rates in India have risen due to modern lifestyle changes. Medical advancements have introduced various solutions, with surrogacy being a key alternative. Surrogacy is a reproductive arrangement where a woman, known as the surrogate mother, carries and delivers a child for an intended couple. While the biological parents provide the genetic material, the surrogate mother plays a vital role in childbirth.

India became a global surrogacy hub due to its affordability and availability of surrogates. However, the lack of regulations led to the exploitation of economically disadvantaged women by intermediaries and wealthy couples. In response, the Indian government introduced the Surrogacy (Regulation) Act, 2021, and the Surrogacy (Regulation) Rules, 2022, to safeguard surrogate mothers’ rights and regulate the industry.

This article critically examines India’s surrogacy laws, assessing their impact on intended parents, surrogate mothers, and society. It explores ethical, legal, and social challenges, compares India’s approach with international standards, and discusses potential reforms to balance protection and reproductive rights.

While India’s surrogacy laws mark progress in ethical regulation, concerns remain over restrictive eligibility and limited access. This article contributes to the ongoing debate by analyzing legal developments, ethical considerations, and possible reforms for a fair and balanced approach.

Keywords: Motherhood, Surrogacy, Exploitation of Women, Legal parentage, Lack of Regulations

Introduction:

The basic unit of our society is family. However, the family system was affected by the various changes in lifestyles. In this modern culture, many couples face numerous problems in giving birth to children as parents. In the early period of the 2000s, a solution was raised for these problems. The solution is called “Surrogacy”, which means a reproductive arrangement where a woman agrees to give birth to a child on behalf of another couple. This is a medical method to get a biological child through another woman. The Indian industry of Surrogacy became more familiar to the affordable surrogates. In the mid-2000s, the lack of regulations and the cheapest cost of Surrogates made India an attractive option for intended couples from all around the world. The Indian Government introduced various rules and acts to regulate the Surrogacy Industry of India. This article aims to examine the current legal provisions, comparative perspective among other countries, ethical and social implications, recent reforms and future suggestions regarding Indian Surrogacy^[1].

Status Quo: The Current Legal Framework:

India’s reputation as a global hub for surrogacy can be attributed to several factors. The cost of surrogacy in India is significantly lower compared to other countries, making it an attractive option for foreign couples seeking surrogate mothers. Additionally, India’s lax laws and regulations in the past made it easier for couples to navigate the surrogacy process.

However, this lack of regulation also led to several challenges, including exploitation of surrogates’ rights and a lack of awareness about the surrogacy process. To address these concerns, the Indian government enacted the Surrogacy (Regulation) Act, 2021, which aims to regulate the surrogacy industry and protect the rights of surrogates. The judiciary has played a significant role in shaping surrogacy laws in India.

Key Provisions of the Surrogacy (Regulation) Act, 2021

• Regulation of Commercial Surrogacy: The Act prohibits commercial surrogacy and allows only altruistic surrogacy.
• Eligibility Criteria: The Act sets out specific eligibility criteria for intended parents and surrogates.
• Protection of Surrogates’ Rights: The Act aims to protect the rights of surrogates, including their right to informed consent and fair compensation.

Baby Manji Yamada vs. Union of India

The Supreme Court of India ruled in the case of Baby Manji Yamada vs. Union of India that the birth certificate of a child born through surrogacy must reflect the genetic parents as the legal parents. This landmark judgment established the principle that the genetic parents, rather than the surrogate mother, are the legal parents of the child^[2].

Jan Balaz vs. Anand Municipality

The Gujarat High Court ruled that a child born through surrogacy to a foreign couple is entitled to Indian citizenship. The court held that the child should not be penalized for the circumstances of their birth, emphasizing the importance of protecting the rights of children born through surrogacy^[3].

Union of India vs. Nalini

The Supreme Court of India has upheld the validity of surrogacy agreements in the case of Union of India vs. Nalini. The court emphasized that the surrogacy agreement is a shield for the surrogate’s rights and regulates the relationship between the surrogate and the intended parents. This ruling provides clarity on the legal status of surrogacy agreements in India^[4].

The Surrogacy (Regulation) Act 2021:

The Indian surrogacy industry has been plagued by numerous challenges, including a lack of awareness, irregularities, and illegal human trafficking, which exploit the rights of surrogates. These issues have raised significant concerns about the welfare and protection of surrogates, as well as the ethical implications of surrogacy.

To address these concerns, the Indian government introduced the Surrogacy (Regulation) Bill in 2015. The bill aimed to regulate surrogacy and protect the rights of surrogates. After a lengthy legislative process, the bill was finally passed in 2021 and came into effect on January 25, 2022.

The Surrogacy (Regulation) Act, 2021, is a landmark legislation that seeks to regulate the surrogacy industry in India. The act aims to prevent exploitation, ensure ethical practices, and protect the rights of surrogates. Some of the key provisions of the act include:

Section 4: Prohibits commercial surrogacy.

Section 5: Sets eligibility for surrogacy mothers, intended couples, and surrogacy clinics.

Eligibility Criteria for Intended Couples :

• They must be Indian Citizens.
• They must be married for a minimum of 5 years.
• They must have a medical certificate that says they are unable to naturally conceive.

Eligibility criteria for Surrogates:

• She must be close to the intended couples.
• She must be between the ages of 25 to 35.
• She must have a medical certificate saying that she is fit for surrogacy.

Section 10: The surrogacy clinics must be registered with relevant authorities.

Section 15: The Surrogacy Agreement under this act will be in writing only with the free consent of all involved parties.

Section 20: The Rights of Surrogates. Includes,

• Right to medical care & insurance during the surrogacy process.
• Right to receive compensation related to the surrogacy process.
• Right to confidentiality & anonymity.
• Right to counseling & support during the surrogacy process^[5].

Comparative Perspective:

Ethical Implications:

• Financially weak women may be forced into surrogacy.
• The process of contracting treats children as commercial products.
• Physical risks like hormonal imbalance and delivery.
• Lack of awareness about the educational and emotional consequences.
• Legal battles between intended parents and surrogates over custody.
• Women’s capability of reproduction may be treated as a commodity or service.
• The unacceptable mindset of intended parents when a child is born with a disability.
• Many religious traditions oppose surrogacy^[7].

Social Implications:

• Surrogacy questions conventional notions like biological connections.
• Surrogates may face discrimination in their neighborhood.
• Wealthy couples can only afford Surrogacy.
• In the International Surrogacy, there was legal uncertainty in parentage.
• Surrogacy complexes the concept of the biological mother.
• Psychological stress may be faced by surrogates after giving birth.
• The children who are born through surrogacy face issues regarding identity.
• Concerns about the profit motive in Surrogacy overshadow ethical and social implications^[8].

Recent Reforms and Developments:

On 25 February 2022, the Indian Government issued a set of rules for better implementation of the Surrogacy Act. The objective of the rules is to regulate and simplify the process of surrogacy.

In these rules,  the various concepts in the field of Surrogacy were discussed briefly. We are going to see the important rules as follows:

• Rule 3: The registration of Surrogacy Clinics must include the details of appropriate equipment, personnel and infrastructure.
• Rule 4: The validity of certification is 5 years and must be renewed.
• Rule 5: A Surrogate mother must be a close relative of the intended couple.
• Rule 6: The Surrogate mother must be between the ages of 25 to 35.
• Rule 7: The Surrogate Mother must have a medical fitness certificate for the Surrogacy process.
• Rule 10: The Surrogacy process must be executed under the surrogacy agreement.
• Rule 11: All details of Surrogacy must be included in the Surrogacy agreement.
• Rule 12: Both parties to the surrogacy agreement must attend medical checkups and counseling.
• Rule 14: The surrogacy-related expenses of the surrogate will be paid by the intended couples.
• Rule 15: The appropriate authority should approve the reasonable compensation.
• Rule 16: The identity of intended couples and Surrogates will be kept confidential.
• Rule 17: The records regarding surrogacy must be maintained by the surrogacy clinics.
• Rule 18: The inspection and monitoring of surrogacy clinics must be done by the appropriate authorities.
• Rule 19: The noncompliance of surrogacy clinics will result in the suspension or cancellation of registration^[9].

Proposals for Change:

The following suggestions will help to better regulations and improvement in the industry of Indian Surrogacy:

• Suggest allowing single men to opt for surrogacy.
• Suggest increasing the age limit of Surrogacy to 40.
• Suggest allowing foreign couples to opt for surrogacy in India.
• Suggest creating a national register for Surrogates.
• Suggest allowing Same-sex couples to opt for surrogacy.
• Suggest providing clarity on the rights of children who are born through surrogacy like citizenship, and inheritance.
• Suggest establishing a dispute resolution mechanism regarding surrogacy.

Conclusion:

The family is the abecedarian unit of society, and the birth of a child is a  pivotal aspect of this unit. In India, surrogacy has become a vital means of achieving parenting, with the government feigning  its  significance. Still, despite the enactment of the Surrogacy Act and Surrogacy Rules, the exploitation of surrogates’ rights remains a significant concern in the 21st century.

Surrogate  mothers, who play a vital  part in bringing new life into the world, are  frequently treated as goods rather than  individualities with rights and  quality. Their exploitation is a serious issue that needs to be addressed urgently. The Indian government has  conceded this problem and is likely to take measures to resolve it soon.

It’s essential to fete  the  significance of surrogate  mothers in mortal reality. They earn our respect, support, and protection. Rather than treating them as bare goods, we should prioritize their well- being and  ensure that their rights are  shielded. By doing so, we can bring about a positive change in the lives of these women and promote a  further  indifferent and just society.

Eventually, the protection of surrogate  mothers’ rights is n’t only a moral imperative but also a necessary step towards creating a more compassionate and inclusive society. By supporting and empowering these women, we can  ensure that they’re treated with the  quality and respect they deserve.

References:

• The Surrogacy Regulation Act 2021 pdf.
• The Surrogacy Regulation Rules 2022 pdf.
• Ruth Cook, Surrogate Motherhood: International Perspectives
• Susan Markens, Surrogate Motherhood and the Politics of Reproduction

^[1]Mathur Pinki, Surrogacy in India: A Legal and Ethical Analysis, 123 – 145 (LexisNexis,2017)

^[2] Baby Manji Yamada vs. Union of India (2008) 13 S.C.C. 518

^[3] Jan Balaz vs. Anand Municipality (2009) 3 G.H.C 231

^[4] Union of India vs. Nalini (2010) 13 S.C.C 1

^[5] The Surrogacy (Regulation) Act, 2021, No. 47 of 2021, §4, §5, §10, §15, §20

^[6] Ruth Cook, Surrogate Motherhood: International Perspectives (Hart Publication, 2003)

^[7] Susan Markens, Surrogate Motherhood and the Politics of Reproduction (University of California Press, 2007)

^[8] Id. at 3

^[9] The Surrogacy (Regulation) Rules, 2022, Notification No.G.S.R. 155 (E), dated February 25, 2022