Understanding Surrogacy Laws in India: A Comprehensive Guide

Surrogacy is a process where a woman carries and delivers a baby for another person or couple. Over the years, it has emerged as a viable option for individuals and couples who are unable to conceive a child naturally. However, the practice of surrogacy is surrounded by various ethical, moral, and legal issues. In India, surrogacy laws have evolved to address these concerns, leading to the establishment of regulations that aim to protect the rights of surrogates, intended parents, and the children born through surrogacy.

This guide provides a detailed overview of surrogacy laws in India, recent changes, and essential aspects of the legal framework governing surrogacy.

What is Surrogacy? An Introduction

Surrogacy is an arrangement where a woman, known as the surrogate mother, agrees to carry and give birth to a child for another person or couple, referred to as the intended parents. This arrangement allows people who cannot conceive or carry a pregnancy to have a child. There are two main types of surrogacy:

1. Traditional Surrogacy: In this type, the surrogate mother is artificially inseminated with the sperm of the intended father. Here, the surrogate’s egg is used, making her the biological mother of the child.

2. Gestational Surrogacy: In this type, an embryo created using the eggs and sperm of the intended parents or donors is implanted in the surrogate’s womb. The surrogate mother has no genetic link to the child, as the embryo is formed using the intended parents' or donors' gametes.

Does India Allow Commercial Surrogacy?

No, commercial surrogacy is not allowed in India. The Surrogacy (Regulation) Act, 2021, explicitly bans commercial surrogacy. This decision was taken to prevent the exploitation of surrogate mothers, particularly those from economically weaker sections of society.

• Commercial Surrogacy: This involves paying the surrogate mother for her services, beyond medical expenses and insurance. It was once prevalent in India but has been banned due to concerns over exploitation and ethical issues.

• Altruistic Surrogacy: This is the only form of surrogacy allowed under Indian law. In altruistic surrogacy, the surrogate mother does not receive any monetary compensation other than medical expenses and insurance. The focus is on helping the intended parents out of goodwill.

What are the Recent Surrogacy Laws in India?

The Surrogacy (Regulation) Act, 2021, is the cornerstone of the current legal framework governing surrogacy in India. This Act was enacted to regulate surrogacy practices and to ensure ethical standards are maintained. Here are some key aspects of the Act:

1. Prohibition of Commercial Surrogacy: The Act strictly prohibits commercial surrogacy. Violators can face imprisonment and hefty fines. This measure aims to prevent the exploitation of surrogates.

2. Eligibility for Altruistic Surrogacy: Only married Indian couples who meet specific criteria are allowed to opt for altruistic surrogacy. The couple must have been married for at least five years, and there should be a proven medical reason for requiring surrogacy.

3. Eligibility of Surrogates: A surrogate mother must be a close relative of the intended parents, married, and have at least one child of her own. She can act as a surrogate only once in her lifetime.

4. Surrogacy Clinics Regulation: All surrogacy clinics must be registered and adhere to the regulations laid out by the Act. This includes maintaining ethical standards, providing proper medical care, and ensuring the surrogate's well-being.

Understanding the Surrogacy Regulation Bill 2020

The Surrogacy Regulation Bill, 2020, laid the groundwork for the Surrogacy (Regulation) Act, 2021. The Bill introduced several key reforms to regulate surrogacy practices in India:

• Ban on Commercial Surrogacy: The Bill proposed a ban on commercial surrogacy to prevent the exploitation of surrogate mothers and to maintain ethical standards in surrogacy arrangements.

• Introduction of Altruistic Surrogacy: The Bill allowed only altruistic surrogacy, where the surrogate mother is not paid for her services except for medical expenses.

• Establishment of Surrogacy Boards: The Bill proposed the formation of a National Surrogacy Board and State Surrogacy Boards to oversee and regulate surrogacy practices across the country.

Who Governs Surrogacy in India?

Surrogacy in India is governed by a two-tier system:

1. National Surrogacy Board: This board operates at the central level and is responsible for formulating policies, advising the government, and ensuring the implementation of surrogacy laws across India.

2. State Surrogacy Boards: These boards operate at the state level and are responsible for monitoring surrogacy practices within their respective states. They ensure that surrogacy clinics are registered and adhere to the regulations set forth by the government.

Key Surrogacy Provisions in India

The Surrogacy (Regulation) Act, 2021, outlines several provisions to regulate surrogacy practices:

1. Eligibility of Intended Parents: Only Indian couples who have been married for at least five years and are within the prescribed age limits (23-50 years for women and 26-55 years for men) are eligible for surrogacy. They must have a proven medical condition that necessitates surrogacy.

2. Eligibility of Surrogate Mothers: A surrogate mother must be a married woman between 25-35 years of age, with at least one child of her own. She must be a close relative of the intended parents and can act as a surrogate only once.

3. Surrogacy Agreement: A legal surrogacy agreement must be signed between the surrogate and the intended parents. This agreement outlines the rights and responsibilities of both parties and ensures that the surrogate is not exploited.

4. Insurance Coverage: The surrogate mother must be provided with insurance coverage for any medical complications arising from pregnancy and delivery. This coverage extends to a period after delivery.

Surrogacy Guidelines by ICMR

The Indian Council of Medical Research (ICMR) has set guidelines to ensure ethical surrogacy practices:

• Informed Consent: Surrogates must give informed consent, understanding the medical, legal, and emotional implications of surrogacy. This consent ensures that surrogates are fully aware of what surrogacy entails.

• Medical and Psychological Screening: Surrogates and intended parents must undergo thorough medical and psychological evaluations. This screening ensures that all parties are physically and mentally prepared for the surrogacy process.

• Counseling: Both surrogates and intended parents should receive counseling to help them understand the process, manage expectations, and deal with any emotional challenges that may arise.

Who Can Opt for Surrogacy in India?

To opt for surrogacy in India, intended parents must meet the following criteria:

1. Married Indian Couples: Only married Indian couples are eligible to opt for surrogacy.

2. Duration of Marriage: The couple must have been married for at least five years.

3. Age Limits: The woman should be between 23-50 years of age, and the man should be between 26-55 years of age.

4. Medical Necessity: There must be a proven medical condition that prevents the couple from conceiving or carrying a pregnancy to term.

Who Can Become a Surrogate Mother in India?

The Surrogacy (Regulation) Act, 2021, specifies the eligibility criteria for surrogate mothers:

1. Marital Status: Only married women can become surrogate mothers, ensuring they have family support during the pregnancy.

2. Age Limits: Surrogate mothers must be between 25-35 years of age.

3. Parental Status: Surrogates must have at least one child of their own, ensuring they understand the implications of pregnancy and childbirth.

4. Relation to Intended Parents: The surrogate must be a close relative of the intended parents, ensuring a trustworthy relationship.

5. Frequency: A woman can act as a surrogate only once in her lifetime, preventing repeated exploitation.

Who is Eligible to Donate Eggs?

Egg donation is regulated under the Assisted Reproductive Technology (ART) Regulation Act, 2021:

1. Age Limit: Egg donors must be between 21-35 years of age.

2. Health Requirements: Donors must be physically and mentally healthy, with no history of genetic or hereditary disorders.

3. Informed Consent: Donors must provide informed consent, understanding the process and implications of egg donation.

What are the Rights of the Surrogate Child?

The rights of the child born through surrogacy are well-protected under Indian law:

1. Legal Parentage: The intended parents are recognized as the legal parents of the child from birth. The surrogate has no parental rights over the child.

2. Birth Certificate: The child’s birth certificate will list the intended parents as the legal parents, ensuring their rights and status are protected.

3. Right to Information: The child has the right to know about their surrogacy origins if they wish to do so when they reach a certain age.

Conclusion

Surrogacy laws in India have been established to ensure ethical practices, protect the rights of surrogates, intended parents, and children, and prevent the exploitation of vulnerable women. The Surrogacy (Regulation) Act, 2021, marks a significant step towards regulating surrogacy practices in the country.

For those considering surrogacy in India, understanding the legal requirements, seeking professional legal advice, and adhering to the guidelines set forth by the law are crucial. By doing so, intended parents and surrogates can navigate the surrogacy process with confidence, ensuring a safe, positive, and legally compliant experience