Is Surrogacy Legal in India?

Surrogacy has become a significant aspect of reproductive healthcare worldwide, offering a ray of hope for individuals or couples unable to conceive or carry a child due to medical or biological reasons. India, known for its relatively low-cost surrogacy services, has attracted both domestic and international clients seeking surrogacy options. 

However, the legal landscape of surrogacy in India has undergone substantial changes over the years. Today, surrogacy in India is regulated by strict laws that focus on protecting the rights of surrogate mothers, intended parents, and the children born through surrogacy. In this article, we will explore the legal status of surrogacy in India, its evolution, and the key legal frameworks that govern the practice.

What is Surrogacy?

Surrogacy refers to a reproductive arrangement where a woman (the surrogate mother) carries and delivers a child on behalf of another individual or couple (the commissioning parents). The child born through surrogacy may or may not be genetically related to the surrogate mother, depending on the type of surrogacy. There are two primary forms of surrogacy:

1. Traditional Surrogacy (Genetic or Partial Surrogacy): In traditional surrogacy, the surrogate mother is artificially inseminated with the sperm of the intended father or a sperm donor. Since the surrogate uses her own egg, she is genetically related to the child.
2. Gestational Surrogacy (Host or Full Surrogacy): In gestational surrogacy, the embryo is created through in vitro fertilisation (IVF) using the gametes of the intended parents or donors. The surrogate carries the pregnancy but has no genetic relationship with the child.

Additionally, surrogacy can be classified into altruistic and commercial surrogacy. Altruistic surrogacy involves no financial compensation for the surrogate other than reimbursement for medical expenses, while commercial surrogacy includes financial compensation beyond medical costs.

The Evolution of Surrogacy in India

India’s surrogacy laws have undergone significant changes over the years, particularly in response to concerns about the exploitation of surrogate mothers and ethical issues surrounding commercial surrogacy. Let’s take a closer look at the evolution of surrogacy laws in India:

Early Years: The Rise of Commercial Surrogacy

India became a popular destination for surrogacy due to its low costs and relatively unregulated market. The cost of surrogacy in India was significantly cheaper than in Western countries, with clinics charging between USD 10,000 and USD 28,000 for the entire procedure, including fertilisation, surrogate fees, and delivery. This pricing made India an attractive option for international couples, particularly from the UK and the US.

In the early 2000s, the industry witnessed rapid growth, and by 2012, the surrogacy business in India was estimated to be worth over USD 400 million annually, with over 3,000 fertility clinics across the country. However, the rapid expansion of the industry raised ethical concerns, with reports of exploitation and unsafe practices.

Legal Changes and the Ban on Commercial Surrogacy

The Indian government began to take action to regulate surrogacy more stringently in response to concerns about exploitation and the need for more oversight. In 2013, surrogacy by foreign homosexual couples and single parents was banned. This was followed by a complete ban on commercial surrogacy in 2015, a move aimed at curbing the exploitation of surrogate mothers and preventing the commodification of women’s bodies.

The government’s primary goal was to ensure that surrogacy remained an ethical and non-exploitative practice. At this stage, the focus shifted to altruistic surrogacy, where the surrogate mother would not receive any financial compensation for carrying the child, other than reimbursement for medical expenses and loss of wages during the pregnancy.

In 2016, the Indian government introduced the Surrogacy (Regulation) Bill, which proposed allowing altruistic surrogacy only for heterosexual Indian couples who had been married for at least five years and had medical infertility problems. This bill aimed to completely ban commercial surrogacy in India and ensure that surrogacy arrangements were made for genuine medical reasons. However, the bill lapsed in 2016, and it was reintroduced in 2019.

The Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021, represents the most recent and comprehensive effort by the Indian government to regulate surrogacy in the country. This law is designed to address the issues arising from commercial surrogacy and provide a framework for altruistic surrogacy in a way that ensures the protection of the surrogate mother, the child, and the commissioning parents.

Key Provisions of the Surrogacy (Regulation) Act, 2021

1. Altruistic Surrogacy Only: The Act bans commercial surrogacy and permits only altruistic surrogacy, where the surrogate mother is not paid beyond medical expenses and insurance coverage. The intent behind this provision is to eliminate the commodification of surrogacy and protect surrogate mothers from exploitation.
2. Eligibility Criteria for Intended Parents: The law allows surrogacy only for heterosexual married couples who have been married for at least five years. They must also meet certain medical criteria that make them infertile or incapable of carrying a pregnancy. Additionally, the female partner must be aged between 23 and 50 years, and the male partner must be aged between 26 and 55 years. The couple must also not have any living biological or adopted children, except in cases where the child has a severe medical condition.
3. Eligibility Criteria for Surrogate Mothers:
   Surrogate mothers must be married women aged between 25 and 35 years who have at least one biological child of their own. They should not have been a surrogate mother previously. Furthermore, they must undergo medical and psychological assessments to ensure they are physically and mentally fit to carry a pregnancy.
4. Medical and Legal Requirements: Intended parents and surrogate mothers must obtain various certificates before proceeding with surrogacy. These include a Certificate of Medical Indication from the medical board, Eligibility Certificates from the Appropriate Authority, and a Court Order regarding the parentage and custody of the child. The surrogate mother must also have insurance coverage for a period of 36 months to ensure financial protection during and after the pregnancy.
5. Registered Surrogacy Clinics:Surrogacy arrangements can only be carried out through Registered Surrogacy Clinics that meet the ethical and medical standards set by the government. These clinics are responsible for ensuring that the surrogacy process is conducted in a safe and legal manner, with all parties fully informed and protected.
6. Penalties for Violations: The Surrogacy (Regulation) Act imposes severe penalties for violations of the law. Offenders can face up to 10 years of imprisonment and fines of up to Rs. 10 lakh for engaging in commercial surrogacy or violating other provisions of the law.
   

Judicial Oversight in Surrogacy Cases

India’s judiciary has played a crucial role in shaping the legal framework for surrogacy. There have been several landmark cases that have clarified the legal status of children born through surrogacy and the rights of surrogate mothers.

Baby Manji Yamada v. Union of India (2008)

In this case, a baby born through surrogacy faced legal challenges regarding nationality, as the child held neither Indian nor Japanese nationality. The case was brought before the Supreme Court of India, which intervened by directing the government to issue a travel certificate to the baby. This case highlighted the need for clearer guidelines regarding the legal status of children born through surrogacy, particularly when the parents are foreign nationals.

Jan Balaz v. Anand Municipality and Ors. (2009)

This case involved the citizenship of twin babies born through compensated surrogacy by a German national. The Gujarat High Court granted Indian citizenship to the babies, ruling that the rights of the children were paramount. This case also brought to light the complexities of citizenship for children born through surrogacy, particularly in cases where the intended parents are foreign nationals.

Conclusion

Surrogacy in India is legal, but it is now tightly regulated under the Surrogacy (Regulation) Act, 2021. The Act bans commercial surrogacy and permits only altruistic surrogacy for eligible heterosexual Indian couples. This shift aims to prevent the exploitation of surrogate mothers while providing a viable option for couples facing infertility issues.