The debate around the Surrogacy Act

the story So Far: The petitioners in the Delhi High Court questioned why marital status, age or gender were criteria for commissioning or not surrogacy in India. The woman petitioner submitted that she already has a child but the trauma of the experience of the first child birth and her need to work with the care of the child convinced her that surrogacy would be a better option for the second child. But under the provisions of the Surrogacy Act, she was denied the opportunity to initiate surrogacy.

As per the Surrogacy Act that came into effect from January this year, a married couple can opt for surrogacy only on medical grounds. The law defines a couple as a married Indian “man and woman” and also prescribes an age-criteria in which the age of the woman is between 23 and 50 years and that of the man is between 26 and 55 years. Also, the couple should not have any children of their own. Although the law allows single women to resort to surrogacy, she must be widowed or divorced between the ages of 35 and 45. However, single men are not eligible.

What is Surrogacy Act?

The Surrogacy (Regulation) Bill was introduced in Parliament in November 2016 and passed in the winter session of Parliament in 2021.

The Act sought to regulate the surrogacy part of a flourishing infertility industry in the country. Defining ‘surrogacy’ as a practice where a woman gives birth to a child for another couple and agrees to hand over the child to them after birth, it allows ‘altruistic surrogacy’ – which Only medical expenses and insurance coverage is provided to the surrogate mother during pregnancy. No other monetary consideration will be allowed.

Why Surrogacy Act is needed in India?

India has emerged as a hub for infertility treatment, attracting people from all over the world with its state-of-the-art technology and competitive prices for infertility treatment. Soon, due to prevailing socio-economic inequalities, disadvantaged women had the option to ‘rent their womb’ and thus earn money to take care of their expenses – often to facilitate marriage, education of children. To receive, or to provide for, hospitalization or surgery for someone in the family.

As soon as the information about the availability of such pregnancies was received, the demand also gained momentum. Unscrupulous middlemen got themselves involved in the scene and exploitation of these women started. Several instances began to emerge where women, often under desperate stress, started filing police complaints after not getting the promised amount.

Other issues also began to arise. For example, in 2008 a Japanese couple started the procedure with a surrogate mother in Gujarat, but they separated before the baby was born and refused to have the child. In 2012, an Australian couple employed a surrogate mother, and arbitrarily chose one of the twins born.

Hence, the time was ripe for proper regulation.

Who gives everyone permission to use the services of a surrogate mother?

Any couple who have ‘proved infertility’ is a candidate. The ‘interested couple’ as the Act calls them, will be eligible if they have a ‘certificate of need’ and a ‘certificate of eligibility’ issued by the appropriate authority. The former will be issued if the couple fulfills three conditions: a, a certificate of infertility of one or both from the District Medical Board; second, the order of parenting and custody of the surrogate child passed by a magistrate’s court; Third, insurance cover for the surrogate mother.

An eligibility certificate stating that the couple meets the following conditions: They must be Indian citizens who have been married for at least five years; The age of female should be between 23 to 50 years and that of male should be between 26 to 55 years; They cannot have any surviving children (biological, adopted or surrogate); However, it will not include ‘mentally or physically handicapped or a child with a life-threatening illness or a life-threatening illness’.

Who can become a surrogate mother?

Only one close relative of the couple can be the surrogate mother, who is able to provide a medical fitness certificate. She must be married, have a child of her own, and must be between the ages of 25 and 35, but she can be a surrogate mother only once.

What are the controversies behind the Act?

Even at the bill’s stage, while there was a general murmur of praise, and some strict approval from infertility experts, there was some apprehension about the too restrictive rules. For example, it does not allow single women, or men, or gay couples to go for surrogacy. Representatives of these groups also came forward when Health Minister JP Nadda introduced the bill in the House.

Others, mainly those involved in organ transplantation, pointed out how organ commerce is thriving in the country despite a similar, stringent law – the Human Organ Transplant Act. To blindfold the appropriate authority and law enforcement officers, pimps continue to operate with less austerity and more covert, sometimes with hospital officials. Clearly, this issue has to be handled with a stern approach, even if the sensitivities of the people are taken into account.

what is next?

These apprehensions and the perceived constraints on account of exclusion criteria have already come to the fore in the short period of the Act coming into force. Litigation is probably the way forward, and if there is a significant mass gathering, amendments may have to be resorted to to resolve complaints and ensure access for all categories of parents.