Surrogacy Act – 2021

Introduction:

In recent past, India emerged as one of the top medical tourism destination because of thriving business of commercial surrogacy which attracted willing customers from all over the world. The main attraction were the cheaper cost of surrogacy and the absence of sound legal framework that allowed the parties involved to escape if any disputes arose. The industry had turnover of over $400 million a year, according a UN backed study.

This necessitated the legislative and judicial intervention, and in 2005 the government approved the National Guidelines for the Accreditation, Supervision and Regulation of ART (Assisted Reproductive Technology) Clinics in India. It brought a number of bans, such as ban on surrogacy by foreign homosexual couples and single parents in 2013, Commercial surrogacy in 2015. The entry of embryo was permitted only for research purpose.

In the 228th Report of the Law Commission of India, the guidelines about ART procedures and surrogacy were proposed. Based on these observations and the existing disputes arising out of surrogacy, the Parliament passed two Acts in 2021 – Assisted Reproductive Technologies (ART) Act, and Surrogacy (Regulation) Act.

SURROGACY (REGULATION) ACT, 2021

On December 25, 2021, the Government of India enacted the ART Act & Surrogacy (Regulation) Act, 2021, which came into force in January 2022.

Under the regulatory framework, National and State Surrogacy Boards are going to be set up. The Boards will work as regulatory and supervising bodies over the surrogacy clinics. They are also tasked to carry investigation in case of breach of law. The punishment for breach, such as commercial surrogacy, abandoning a surrogate child may invite 10 years of imprisonment and fine up to Rs 10 lakhs.

Some important definitions given under Section 2 of the Surrogacy Act:

Surrogacy: A practice whereby one woman bears and gives birth to child of intending couple with the intention of handing over such child to intending couple after birth.

Altruistic Surrogacy: It means the surrogacy in which no charges, expenses, monetary incentive of whatever nature, except the medical and prescribed expenses are incurred on surrogate mother. This includes the insurance coverage for the surrogate mother.

Commercial surrogacy: It means commercialisation of surrogacy services or procedures or component services including selling or buying of human embryo or trading in the sale or purchase of human embryo or gamete. In this, other than the medical expenses, other monetary rewards or fee is paid to the surrogate mother or her representative.

Couple: Legally married Indian man and woman above the age of 21 and 18 years respectively.

WHO CAN BE INTENDED COUPLE TO AVAIL SURROGACY:

Only legally married, Indian heterosexual couple, wife in age range of 25-50 years and husband in age range of 26-55 years can avail surrogacy. They should be married for at least five years, must not be having any living child either biological/adopted/surrogate. However, the criteria will not be applicable for a child having mental/physical disorder or life-threatening illness.

Thus, the Act bars a non-Indian or an unmarried person or a homosexual from taking the channel of surrogacy.

Another safeguard is that the intended couple has to procure a certificate of eligibility and essentiality from the District Medical Board as a proof of infertility of either partner.

ELIGIBILITY CRITERIA FOR A SURROGATE:

Only a close relative of the couple who is married, having a child of her own, and age between 25-35 years is allowed to be surrogate. She must possess a medical and psychological fitness certificate as well. Keeping the health and medical complications of the surrogate mother is allowed to surrogate only once in her lifetime. Another reason behind this proviso is to prevent sex-selection through surrogacy.

ART ACT, 2021:

ART technique is the process through which the sperm or eggs cells are handled outside human body and then transferring of embryo into the woman’s reproductive tract. This technique is used in IVF as well as surrogacy.

The Assisted Reproductive Technology Act, 2021 makes it mandatory for ART clinic and bank to be registered under the National Registry of Banks and Clinics of India. Some important guidelines under the Act are the restrictions that the bank can use the semen of donor to one couple only. Female donor can donate upto seven eggs only once in her lifetime. She needs to be married, and having at least one child of her own, aged at least three. The rationale behind these safeguards is to prevent use of technology for commercial purpose, sex-selection.

An important legal provision both under ART and surrogacy is that the once the child is born, it will deem to be biological child of the intended couple for all intents and purposes. Also, the abortion of such foetus is allowed only with the consent of surrogate mother and authorities.

CRITICAL APPRAISAL & CONCLUSION:

The two Acts primarily aim to regularize the surrogacy technology on ethical aspect. The focus in on the check on exploitation of the surrogates and protection of legal rights of the child which should not be lost to the mindset of ‘womb on rent.’

However, the Acts are criticized for a forced ‘altruism’ on the surrogates. It is believed that by taking away the monetary benefits from the surrogates, the rights of surrogates are curtailed as the notion that ban on ‘commercial’ aspect will end exploitation is superfluous. Another criticism is the limited access to surrogacy by making only legally married, heterogenous couples eligible. If we go by the Supreme Court judgments on Right to Marriage as fundamental right under Article 21, then for many having a child completes a family, even for a homosexual couple, but the Surrogacy Act leaves out LGBT+ community and unmarried individuals from the egalitarian benefits of Surrogacy.

A major criticism of the Act is that its stringent regulations defeat the very purpose for which it is intended, because the regulations will only incite the illegal market of egg donation and surrogacy. However, one cannot undermine the noble intention behind the Acts and the initiative to bring to end the commodification of human embryo by bringing a functional legal framework that ensures its fruitification as a scientific advancement beneficial to humankind.

Written By,

Vartika Sharma,

Intern, Chanchlani Law World