Surrogacy has become an essential option for couples struggling with infertility and those unable to conceive naturally. India has seen a significant rise in surrogacy arrangements over the years, leading the government to introduce strict laws to regulate the practice and protect the rights of surrogate mothers and intended parents.
The Surrogacy (Regulation) Act, 2021, came into effect to ensure ethical and legal surrogacy practices in India. In this blog, we will discuss the legal framework governing surrogacy, the rights and responsibilities of surrogate mothers and intended parents, and the eligibility criteria for surrogacy in India.
What is Surrogacy?
Surrogacy is an arrangement in which a woman (the surrogate mother) agrees to carry and give birth to a child for another individual or couple (the intended parents). The process can be classified into two types:
- Traditional Surrogacy: The surrogate mother uses her own egg and is artificially inseminated with the sperm of the intended father or a donor. This means the child is biologically related to the surrogate mother.
- Gestational Surrogacy: An embryo created using the egg and sperm of the intended parents (or donors) is implanted into the surrogate mother’s womb. In this case, the child has no biological relation to the surrogate mother.
Under the Surrogacy (Regulation) Act, 2021, only altruistic gestational surrogacy is permitted in India.
Surrogacy Laws in India
1. The Surrogacy (Regulation) Act, 2021
The Indian government introduced the Surrogacy (Regulation) Act, 2021, to prevent the commercialization of surrogacy and to protect the rights of both surrogate mothers and intended parents. The key highlights of this law include:
- Commercial surrogacy is banned: Only altruistic surrogacy is allowed, meaning the surrogate mother cannot be paid except for medical expenses and insurance coverage.
- Only Indian citizens can opt for surrogacy: Foreign nationals, OCI (Overseas Citizens of India), and NRIs are not eligible.
- Strict eligibility criteria: Only legally married heterosexual couples, single women (widows/divorcees), and people with medical conditions preventing pregnancy can opt for surrogacy.
- Surrogate mothers must be close relatives: The surrogate should be a married woman with at least one biological child and aged between 25 and 35 years.
- Approval from a medical board is required: Both the intended parents and the surrogate must obtain a certificate of medical necessity from a designated authority before proceeding with surrogacy.
- Only one surrogacy per surrogate mother: A woman can be a surrogate only once in her lifetime.
- Legal protection for the child: The child born through surrogacy has the same legal rights as a biological child of the intended parents.
Rights of Surrogate Mothers in India
While surrogacy is an altruistic act under Indian law, the rights of surrogate mothers are protected to ensure they are not exploited.
1. Right to Medical and Financial Support
- The intended parents must cover all medical expenses, hospital bills, and pregnancy-related costs for the surrogate mother.
- Surrogates receive health insurance for a period of 36 months after childbirth.
2. Right to Proper Counseling and Informed Consent
- The surrogate mother must be fully informed about the process, risks, and responsibilities before giving consent.
- She has the right to undergo counseling sessions to understand the psychological and emotional impact of surrogacy.
3. Right to Legal Protection
- Surrogate mothers have legal protection against any form of exploitation.
- They cannot be forced into surrogacy or treated unfairly by the intended parents.
4. No Parental Rights Over the Child
- The surrogate mother has no legal claim over the child born through surrogacy.
- Once the child is delivered, full parental rights are transferred to the intended parents.
5. Protection Against Multiple Pregnancies or Medical Risks
- A surrogate cannot be forced to carry multiple pregnancies unless medically advised.
- She has the right to refuse any medical procedures that pose serious health risks.
Rights of Intended Parents in India
The Surrogacy Act also outlines the rights of intended parents to ensure they have legal recognition as the child’s parents.
1. Right to Full Legal Parenthood
- The child born through surrogacy is legally the child of the intended parents.
- The surrogate mother has no parental rights over the child.
2. Right to Privacy and Confidentiality
- Intended parents have the right to keep their surrogacy arrangement private.
- The birth certificate of the child will mention only the names of the intended parents.
3. Right to Choose a Surrogate
- Intended parents can only opt for surrogacy through a close relative of the couple, as per the law.
- They must ensure the surrogate meets all eligibility criteria.
4. Right to a Legal Agreement
- Before proceeding, both the intended parents and the surrogate must sign a legal agreement outlining the rights, responsibilities, and conditions of the surrogacy process.
5. Protection from Financial Exploitation
- Since commercial surrogacy is banned, intended parents are not required to pay any additional compensation beyond medical expenses.
- They cannot be financially exploited under any circumstances.
Challenges in Surrogacy Laws in India
Despite strict regulations, some challenges exist in the implementation of surrogacy laws:
- Limited Surrogates: The requirement that surrogates must be close relatives makes it difficult for intended parents to find a willing surrogate.
- Exclusion of LGBTQ+ and Unmarried Couples: The law does not allow same-sex couples or unmarried partners to opt for surrogacy.
- Complex Legal Procedures: The requirement for medical board approval and legal documentation makes the surrogacy process lengthy and complex.
- Concerns Over Women’s Rights: Some activists argue that banning commercial surrogacy takes away a woman’s right to choose surrogacy as a means of livelihood.
Conclusion
India’s surrogacy laws aim to strike a balance between ethical medical practices and the protection of all parties involved. While the Surrogacy (Regulation) Act, 2021, ensures that surrogate mothers are not exploited, it also safeguards the rights of intended parents. However, there are challenges in implementing these laws, particularly regarding access to surrogacy for all sections of society.
As medical science advances and society evolves, the Indian government may need to reconsider some restrictions to make surrogacy laws more inclusive while ensuring fairness and safety for everyone involved.