The Impact of New Surrogacy (Regulation) Act, 2021 on Surrogacy Arrangement in India

Surrogacy is a process in which termed as that a person or couple contracts with a surrogate carrier to carry the pregnancy. A surrogate is a woman who carries a child in her womb for another person or couple like a third party is involved in the child-birth process. 

Surrogacy was considered taboo in Indian society as they thought that it was destroying the natural reproductive way. They tend to believe that the child who was born from another lady is “illegitimate” even if it was the couple’s personal choice to make this decision. 

The misogynistic and patriarchal mindset of society disregards a woman’s bodily choice. Sometimes, due to this mindset, many women refuse to be a surrogate mothers as they are exploited by society. Not only surrogate mothers go through this type of exploitation but the couples too and the born child. 

The misogynistic thinking is really dangerous. But our law permits women to make decisions for their bodies. She has full freedom of privacy and bodily freedom, there shouldn’t be any interference from society. 

Everyone has the right to bring a child into their lives and it is not restricted to heterosexuals. Moving forward to the surrogacy act and its impact, we need to know about the types of surrogacy:

1.   Traditional surrogacy: In this surrogacy, the surrogate mother is also the genetic mother and the child is conceived naturally or impregnated by fertility methods.

2.   Gestational surrogacy: In this method, embryos are produced through the IVF process in the lab with the biological father’s sperm and the mother’s egg. Then the complete embryos are implanted into the uterus of a surrogate mother. This method has no biological link between a child with the surrogate mother.

3.  Commercial surrogacy: In this process, an individual or couple have to pay fees or compensation to the surrogate mother for carrying their child and the baby is later given to his/her biological parents through a legal or private adoption process. In this process, the compensation is being provided to the surrogate mother for delivering a child. This method was later banned in India in the New Surrogacy Act, of 2021.

4.    Altruistic surrogacy: In this process, a woman who carries the baby of the couple doesn’t get any monetary reward for delivering the baby. However, the expense related to the baby and pregnancy is taken care of by the intended couple.

The Surrogacy Regulation Act,2021

Surrogacy is all about reproductive techniques and this issue has covered up a lot of controversies. Even the state has interfered in this process of surrogacy to prove this technique “ethical”. 

So that society can normalize the problem of infertility and understand that this technique can fill up colours in the life of a woman and a woman can live her motherhood with all love and care. That’s why Surrogacy Regulation Act, 2021 was passed to protect the reproductive rights of a woman. 

This act aims to ban commercial surrogacy and promote only altruistic surrogacy as many people started using this method to earn money. So, this act enables surrogate mothers can only get the expenses related to the medical facility and the insurance coverage. 

This act objectifies the security of the rights of the children born from the surrogate mother. This act also guarantees the protection of the surrogate mother. It prohibits the practice of commercialization of the child. 

The method of commercial surrogacy was controversial as it seems to put a value on the child who is going to be born from surrogacy. In many cases, it was seen that child trafficking was happening because couples violated the rights of the mother by not giving the full payment.

Key Provision of this Act

In this act, it is said that a woman aged of 35or 45 or a married couple defined as legally married, can use the surrogacy technique if she is suffering from a medical problem that requires this option only to give birth, then only she is eligible to get the benefit of the surrogacy. Commercial surrogacy is banned in India, and if practised then he/she is punishable with imprisonment for 10 years and a fine up to 10 lakhs.

Only a close relative of the couple is eligible to be a surrogate mother. A couple can’t hire anyone else for surrogacy. And the woman who is intended to be a surrogate mother should be of 20 years to 35 years, but can only become a surrogate mother once. A lady who has experienced surrogacy before is not eligible to be a surrogate mother again.

The central and state authority has appointed the authorities to manage the surrogacy arrangements and those authorities take care of the following things; suspending, cancelling, granting, and registration of the surrogacy clinics.

Central and state governments have constituted national surrogacy boards and state surrogacy boards to manage the arrangements. These boards are constituted within 90 days of the passing of the act. These bodies have tasks like investigating breaches, recommending modifications, and enforcing standards of the surrogacy clinics.

Abortion of the child that is inside the surrogate mother requires the consent of the surrogate mother and the authorization of the authority. In this act, the surrogate mother is given the option to withdraw from surrogacy before the implantation of the embryo in her womb.

These are the main provisions of this act and this provision shows a lot of impact of the surrogacy arrangement in India. But for the deep analysis of the impact on the arrangement can be studied by the knowledge of all the sections which were implied in this act which deeply support surrogacy.

Section 2 of this act deals with the definitions of this act. This defines altruistic surrogacy and the benefits of this method. As in this one, only medical expense and insurance coverage is provided to the surrogate mother.

Section 2(g) of this act defines commercial surrogacy which is banned by the Indian government as this method is all about giving the sum of money to the child. Commercialization is banned and the practice of the same is unacceptable and punishable too.

Section 2(h) of this act defines the meaning of the word “couple” which is a legally married man and woman. They must be above 21 years.

Section 2 (r) this section defines the word “intending couple” which says that the couples who are intending to become parents through the procedure of the surrogacy. The age eligibility of the intending couple is from 23 years to 50 years in the case of females and males it is from age 26 years to 55 years.

Section 2 (s) this section defines the meaning of the “intending woman”. It means that a woman who wants to avail the benefits of the surrogacy method. It can be a woman from 35 years to 45 years who is either a widow or divorced and intends to avail[1].

Regulations of Surrogacy Clinics

Section 3 of the act provides the regulation of the clinic. Every clinic must be registered under the act of surrogacy regulation so that the conduction of surrogacy can be maintained properly. 

Commercial surrogacy was banned and in no case it will be practiced in India in any hospital by any gynecologists. All the said procedures will be followed at registered clinics. And in no case, sex selection is allowed in the procedure of surrogacy.

Regulation of Surrogacy and Surrogacy Procedures

Section 4 of this act provides that if the clinic is not registered under the act then, that clinic will not participate in the activities relating to surrogacy. No one would be employed for the procedure, no assistance, no collaboration, no participation if lacks the required qualification. No doctor, gynaecologist, no medical practitioner, no embryologist will promote or associate with commercial surrogacy. Sex selection is strictly prohibited in the procedure of surrogacy.

Written Consent of the Surrogate Mother

Section 6 of the act provides that the surrogate mother will be informed of all the consequences of being a surrogate mother. She should be known with all the facts and no misrepresentation of the facts will not be appreciated. Side effects and all medical knowledge should be given to her and the whole consent should be there from the side of the surrogate mother. Written informed consent will be taken into consideration.

Prohibition Tto Abondon Child

Section 7 of the act provides that the born child from surrogacy can’t be abandoned in any situation. Even on the grounds of birth defect, any genetic defect, or any medical problem, no other problem will be considered as an excuse to abandon the child in India or outside India.

Rights of the Surrogate Child

Section 8 of the act provides that the child born out from the Surrogate mother will be considered as the biological child of the intending couple and the child is eligible to have all the rights as a natural child under the law. After birth, the child will have no connection with the surrogate mother biologically.

Section 10 of the act provides that no organization or no person can force the surrogate mother to abort the child under any condition or any other circumstances[2].

The above provisions of this act showcase the positive impact of the surrogacy act on the surrogacy system in India. But every act has some challenges which can create a negative impact on the arrangement. Let’s discuss about challenges:

Exploitation of the Surrogate Mother And Child

It should be taken care of that there should be no exploitation of poor women under surrogacy and the rights of the children should be protected. However, the act is unable to balance both the interests.

Reinforce Patriarchal Norms

This act reinforces the patriarchal norms of the traditional era. This act doesn’t attribute to the economic value of women’s work and directly affects the fundamental rights of women to reproduce under Article 21 of the constitution.

Denies Legitimate Income of the Surrogate

Banning commercial surrogacy has affected the legitimate resource of the income of surrogates, and it also limited the women to participate in surrogacy. Not everyone is willing to get pregnant just to give birth in return for nothing.

Emotional Complications

As in altruistic surrogacy, there should be a close relative of the couple as a surrogate mother. So this arrangement can create an emotional bond between the child and surrogate mother. 

This can also affect the relationship of the intending couple and the surrogate mother. This method of surrogacy also limits the option for the couple in choosing a surrogate as it is not easy to convince your relative to become a surrogate mother.

No Third Party Involvement

In altruistic surrogacy, there is no involvement of the third party. But in many cases, a third party was helpful as it can help both the intended couple and the surrogate mother to navigate from the complex process. 

As in altruistic surrogacy, all the medical expense is taken care of by the intended couple during the surrogacy process. Third parties can help them financially too but this is not possible in altruistic surrogacy[3].

Case Laws Relating To Surrogacy

1.      Baby Manji Yamada vs Union of India & Anr (2008) 13 SCC 518 at 521, para 4. 10 217 N.J.Super

Baby Manji was of Japanese origin biologically child. The Japanese couple Dr. Yuki Yamada and Dr. Ifumika Yamada visited India in search of a surrogate mother in 2007. And then they found a woman and they performed gestational surrogacy. 

After that the biological parents divorced and the mother went to Japan before birth. After birth, she refused to take responsibility as there was no biological connection. Baby Manji was taken care of by paternal grandmother in Gujrat. But the father still intends to take responsibility for custody. 

In Indian law, a father can’t adopt a girl child. At that time, there were no laws on surrogacy, so the Apex court directed the National Commission for Protection of Child Rights to deal with it. Supreme Court held that the father is the genetic father of the child so the custodial rights were given to him. It was the first case on the surrogacy issue in India and Supreme Court held the surrogacy agreement valid.

2.      Jan Balaz vs Anand Municipality  AIR 2010 GUL 21

In this case, a German couple visited India to hire a surrogate mother. After the whole process, the surrogate mother gives birth to twins. This German couple works in the UK and their kids require an Indian passport to travel. 

The passport officials refused to issue it as they don’t have citizenship. As there were no laws on surrogacy in Germany. The Supreme Court of India permitted them to leave India, as they didn’t want the children to suffer. German authorities allowed them to adopt them and fight for their rights.

3.      Justice K.S Puttuswamy and Anr. Vs Union of India (2017) 10 SCC

The court held that obtaining and showing the infertility certificates violates the right of privacy of the intending couple. Infertility issue is a real private thing between couples and it should remain there only. And making it mandatory to show the certificates to medical boards is against society’s moral and ethical standards and this right to privacy in terms of infertility should be protected[4].

Conclusion

As in India, this surrogacy act is placed in the right direction. This act needs a lot of effort to work properly so that more and more couples can get the happiness of a child in their life. Proper implementation of this act prevents injustice to stakeholders. 

The medical boards have the responsibility to take care of the provisions of this act. The surrogacy act needs more and more support so that society can accept the concept of surrogacy. Clarity over authority is required in India for smooth, effective, hassle-free functioning. 

There is one problem parliament has taken the paternalistic view and completely eradicated commercial surrogacy. They put strict restrictions on commercial surrogacy which created some problems. 

They commercial surrogacy was considered as “ renting wombs”, “outsourced pregnancies”, and “baby farms” (as per Supreme Court of India). But they should have understood that the money that was given to the surrogate mother in exchange for a child helped her to uplift her standard of living and act her livelihood for a while. 

The money rather than the insurance and medical expenses works as a financial help to them. Full restrictions on commercial surrogacy have limited the number of surrogates. But still, surrogacy has helped a lot of childless couples and it makes them experience parenthood. Surrogacy arrangements are managed properly because of the Surrogacy Act, 2021.

Footnotes

[1]https://theleaflet.in/lacunae-in-the-surrogacy-regulation-act-2021/

[2]https://www.scconline.com/blog/post/2021/09/27/reproductive-health-and-surrogacy-in-india/

[3]https://indianexpress.com/article/explained /explained-what-in-art-surrogacy-bills-7653374/[4]https://blog.ipleaders.in/is-surrogacy-legal-in-india/

This article has been contributed by Roshani Chaudhary, a student at  University of Rajasthan, Five Year Law College, Jaipur.