Before the enactment of the Surrogacy Regulation Act, 2021 (Act), surrogacy in India was largely unregulated, leading to the exploitation of underprivileged women, especially by foreign nationals seeking affordable surrogacy which led to the commercialisation of surrogacy in India. In 2009, the Law Commission of India called for a ban on commercial surrogacy. This led to the drafting of the Surrogacy (Regulation) Bill in 2016, which aimed to ban commercial surrogacy, regulate clinics, and ensure ethical practices.
After multiple rounds of discussions and amendments, the Act was finally passed in 2021. The Act prohibits commercial surrogacy, only allowing altruistic surrogacy, ensuring that surrogacy is undertaken for compassionate reasons rather than financial gain.
Who can opt for surrogacy?
A central feature of the Act is the strict eligibility criteria for those seeking surrogacy. To qualify for surrogacy, a couple must be married, Indian citizens, and meet specific age requirements (the wife between 23 and 50 years old, and the husband between 26 and 55). They must not have any surviving children, whether biological, adopted, or born through a previous surrogacy, unless that child suffers from a severe medical condition. Additionally, surrogacy is permitted only under certain medical conditions, such as the absence or abnormality of the uterus, repeated IVF failures, or multiple miscarriages. Similarly, widows or divorcees between the ages of 35 and 45, are eligible for surrogacy if they have a medical condition that prevents them from carrying a pregnancy.
The government, through an amendment made recently in 2023, has permitted married couples to use an egg or sperm of a donor in case one of the partners is suffering from a medical condition. Earlier, prior to the amendment, a married couple had to use their own egg/sperm for the purposes of surrogacy. Presently, the District Medical Board established under the Act has to certify that either the husband or wife is suffering from a medical condition, necessitating the use of donor egg/sperm.
Who can be a surrogate?
The Act imposes eligibility criteria for the surrogate mother as well. She must be between the ages of 25 to 35 and have had at least one biological child. She must provide informed consent and agree to carry a child altruistically. She cannot receive any monetary compensation apart from medical expenses and insurance.
The ban on commercial surrogacy is strictly enforced, with penalties including imprisonment for up to 10 years and hefty fines. This prohibition safeguards surrogate mothers from being exploited by intermediaries or clinics that may have previously profited from the commercial surrogacy industry.
What are the rights of a surrogate?
The rights of the surrogate mother are a key focus of the Act. She is entitled to medical care, financial support, and insurance. The surrogate mother also retains autonomy over her body, as she cannot be forced to undergo surrogacy or coerced into continuing or aborting the pregnancy. In the case of abortion, it can only be performed with her written consent and the approval of the appropriate authorities. These provisions protect the surrogate mother’s physical and emotional well-being, ensuring that her rights are respected throughout the process.
Where can surrogacy be performed?
To further regulate the practice of surrogacy, surrogacy can only be performed in registered clinics that meet government standards. The law also establishes national and state-level Surrogacy Boards to oversee and regulate the practices of these clinics.
To be continued in Surrogacy Regulation Act, 2021 – A step forward or a step back? (PART II)
