Surrogacy Act

In News

• Recently, the debate arose around The Surrogacy (Regulation) Act. 
  • This Act was passed in parliament in 2021.

Key provisions of the Surrogacy (Regulation) Act:

• Objective: 
  • The Act sought to regulate the surrogacy part of a rather flourishing infertility industry in the country. 
• Defining ‘surrogacy’:
  • It is defined as a practice where a woman undertakes to give birth to a child for another couple and agrees to hand over the child to them after birth. 
• Altruistic surrogacy:
  • The Act allows ‘altruistic surrogacy’ — wherein only the medical expenses and insurance coverage is provided by the couple to the surrogate mother during pregnancy. 
  • No other monetary consideration will be permitted.
• The intending couple:
  • Any couple that has ‘proven infertility’ is a candidate. 
  • 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. 
  • The former will be issued if the couple fulfills three conditions: 
    • A certificate of infertility of one or both from a district medical board; 
    • An order of parentage and custody of the surrogate child passed by a Magistrate’s court;
    • Insurance cover for the surrogate mother.
• Eligibility Certificate:
  • An eligibility certificate mandates that the couple fulfil the following conditions: 
    • They should be Indian citizens who have been married for at least five years; 
    • the female must be between 23 to 50 years and the male, 26 to 55 years; 
    • they cannot have any surviving children (biological, adopted or surrogate); 
    • However, this would not include a ‘child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness.’
• Surrogate mother:
  • Only a close relative of the couple can be a surrogate mother, one who is able to provide a medical fitness certificate. 
    • She should have been married, 
    • with a child of her own, and 
    • must be between 25 and 35 years, 
    • but can be a surrogate mother only once.
• Regulating Body:
  • The Centre and State governments are expected to constitute a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively. 
  • This body is tasked with enforcing standards for surrogacy clinics, investigating breaches and recommending modifications. 
  • Further, surrogacy clinics need to apply for registration within 60 days of the appointment of the appropriate authority.
• Offences:
  • Offences under the Act include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc. 
  • These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakh.

Criticisms

• Too restrictive regulations: 
  • For instance, it does not allow single women, or men, or gay couples to go in for surrogacy.
  • This Deprives homosexuals and single parents.
• Lack of clarity:
  • Bill doesn’t define “close relatives” as it is hard to regulate commercial surrogacy in this context.
• Reproductive rights:
  • Reproductive Rights of women are restricted as State deciding mode of Parenthood.
  • It Restricts basic human right (of Having a Child) and article 14 because of the discriminatory approach on the basis of nationality, marital status and sexual orientation and Violates freedom of Choice and Declaration of Human Rights 1948.
  • The Act doesn’t address issues like Postpartum problems.
• Rights of women surrogates:
  • The act is criticised for curtailing the rights of women surrogates under the garb of curbing exploitation.
  • Prohibition of payment can lead to more exploitation of Women.
  • Eg., Several villages in Gujarat are known for commercial surrogacy. As per reports, Anand, known for Amul’s dairy factory, has also acquired fame as India’s ‘surrogacy capital,’ offering lucrative monetary opportunities for impoverished women.
  • Such practices have now been thrown into a quandary with the passage of this Act.
• Example of the Transplantation of Human Organs Act:
  • Despite a similar, stringent law — the Transplantation of Human Organs Act — organ commerce continues to thrive in the country. 
  • Brokers continue to operate, though with less temerity and more covertly, sometimes with hospital authorities, to pull the wool over the eyes of the appropriate authority and law enforcement officials.

Way Ahead

• Surrogacy is legal in India. But, making it commercial is illegal. It is a humanitarian act and is recognized by law. 
• Surrogacy comes under the reproductive choices of women and it is included as a fundamental right under the purview of Article 21 of the Indian Constitution.
• If a critical mass builds up, amendments might have to be resorted to in order to resolve the grievances and ensure access for all categories of parents.
• Rather than penalising surrogacy, the person providing a womb for surrogacy must be secured with a contract, ensuring proper, insurance and medical checks.
• The issues like middlemen will have to be handled with a stern visage, even as sensitivities of people are factored in.