THE LAWWAY WITH LAWYERS JOURNAL 

VOLUME:-19 ISSUE NO:- 19 , JANUARY 10, 2024

 ISSN (ONLINE):- 2584-1106 

Website: www.the lawway with lawyers.com 

Email: thelawwaywithelawyers@gmail.com 

AUTHORED BY :-  AKSHAYA S

CO AUTHORED 1. :- SIVASAKTHI.A

CO AUTHORED 2. : SUSHMITHA R

 

A CRITICAL ANALYSIS OF SURROGACY (REGULATION) ACT, 2021: KEY PROVISIONS AND DRAWBACKS

 

ABSTRACT

Surrogacy is the process where a woman accepts to become pregnant and gives birth to a child on behalf of another couple who will legitimately be the child’s parent after birth. Usually surrogacy is pursued by the people who are dealing with infertility, medical complications or any condition which makes pregnancy unsafe. Before 2015 commercial surrogacy has been practiced in India but it frequently resulted in exploitation of vulnerable and underprivileged women, and many surrogate moms had medical risks and inadequate postpartum care. Therefore in order to curb this, Surrogacy (Regulation) act was passed in the year 2021. This act completely prohibits commercial surrogacy and it permits only altruistic surrogacy which does not include any monetary payment apart from the cost of surrogate mother’s parental care and insurance coverage. However this act also had few shortcomings such as exclusion of unmarried and homosexual couples, widow men and so on. This paper deeply analyzes the key provisions of the Surrogacy (Regulation) Act, 2021 and it highlights the landmark cases of surrogacy and this paper also examines the loopholes of the act. 

Keywords: Surrogacy (Regulation) Act, 2021, Drawbacks, Altruistic surrogacy, Commercial surrogacy, Landmark judgment.

INTRODUCTION:

The Britannica dictionary defines Surrogacy as “the practice by which woman i.e. the surrogate mother becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children.” According to OHCHR, “Surrogacy refers to a form of third party reproductive practice in which intending parent(s) contract a surrogate mother to give birth to a child.”  

Surrogacy is considered by the couple for the following reasons,

• Past history of hysterectomy (uterine removal surgery) for certain medical conditions like cervical or endometrial cancer
• Women who have tried unsuccessful reproductive treatments and have numerous fibroids
• Congenital or acquired uterine abnormalities
• Women who experience repeated failures of implantation
• Absence of uterus like in Mayer-Rokitansky-Kuster-Hauser syndrome (a disorder with the absence of uterus at birth)
• Severe medical conditions like heart or renal diseases make pregnancy risky and are contraindication of pregnancy
• The inability to conceive biologically
• Women who experience multiple miscarriage

These are the general reasons for which the couple considers surrogacy to have a child and to form a family.

In India there are two main types of surrogacy, they are as follows,

1. Traditional surrogacy

In this type, the intended father’s sperm is artificially inseminated into the surrogate mother. As a result, in this type of surrogacy the surrogate mother will be the genetic mother of the child to whom she gives birth and it can also be stated that the surrogate mother will be the biological mother to the child.

1. Gestational surrogacy

In this gestational surrogacy, fertility specialists use sperm from the intended father to fertilize eggs from the intended mother through the use of an In-Vitro Fertilization (IVF) procedure. Since the fertilized eggs are subsequently placed in the surrogate’s uterus, the surrogate merely serves as the carrier and has no biological connection to the surrogate child. 

 

Few other types of surrogacy on Compensated basis are as follows,

1. Commercial surrogacy

In this, the surrogate mother receives financial compensation apart from its medical expenses related to pregnancy.

1. Altruistic Surrogacy

In this, the surrogate mother does not receive any financial compensation. In the majority of instances, altruistic surrogates are helping an individual they know, like a close friend or relative, and they will probably only be compensated for medical expenses

HISTORY OF SURROGACY LAW IN INDIA 

Surrogacy has been practiced in India since ancient times. The first IVF kid, Kanupriya alias Durga, was successfully delivered in Kolkata on October 3, 1978, indicating an important turning point in the development of assisted reproductive technology (ART) and providing hope for surrogacy as a substitute method of reproduction. However surrogacy became quite prominent in 2000s when commercial surrogacy was legalized in India. The country became the destination for foreign nationals seeking surrogacy treatment as it offered a more favorable environmental condition and affordable medical expense. In this period, commercial surrogacy attained drastic growth in India, but it also led to the exploitation of vulnerable women and it also gave rise to various social, medical and legal concerns. Therefore, in 2015, the Indian government banned commercial surrogacy and only allowed the entry of embryos for scientific study. In 2016, the Lok Sabha, introduced and passed the Surrogacy (Regulation) Bill, which aimed to outlaw commercial surrogacy by allowing only heterosexual Indian couples who have been married for at least five years and are experiencing infertility issues to use altruistic or unpaid surrogacy. But the bill lapsed at that time and it was again reintroduced in the year 2019. The bill received the President’s assent on 25th December 2021 and it officially came into effect on 25th January 2022 as the Surrogacy (Regulation) Act, 2021.

SURROGACY (REGULATION) ACT, 2021

Surrogacy regulation Act,. 2021 was enacted to with the intention of “establishing the National Assisted Reproductive Technology and Surrogacy Board, State Assisted Reproductive Technology and Surrogacy Boards, and designating suitable authorities for the regulation of the practice and process of surrogacy and for matters related or incidental thereto. The object of the act is to prohibit commercial surrogacy and to permit only altruistic surrogacy, to protect the rights of surrogate mother and intended parents essentially seeking to guarantee moral and open surrogacy practices while avoiding the exploitation of women who might be lured into business agreements.  The following are the key provisions of the act,

• Section 2(zd) defines surrogacy as a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth;

• Altruistic surrogacy has been defined under section 2(b). As per the provision Altruistic surrogacy refers to surrogacy in which the surrogate mother or her representative receives no monetary compensation or incentives, except for medical expenses and insurance coverage.
• Section 2(g) defines commercial surrogacy as Commercialization of surrogacy services or procedures, or their component services or procedures, such as the sale or purchase of human embryos or the trading in the sale or purchase of human embryos or gametes, or the sale or purchase or trading of surrogate motherhood services by providing payment, reward, benefit, fees, remuneration, or monetary incentives in cash or kind to the surrogate mother, her dependents, or her representative, except medical costs and other costs that the surrogate mother is required to incur and insurance coverage for the surrogate mother.
• Section 3 of the act provides for prohibition and regulation of surrogacy clinics. This section states that no surrogate clinic can operate without being registered under the act, surrogacy clinic, paediatrician, gynecologist, embryologist and any other, medical practitioner are strictly prohibited from conducting, promoting, or availing of commercial surrogacy. This section prohibits any form of advertisement related to surrogacy particularly enticing women to become surrogate mother or ads promoting commercial surrogacy. It also prohibits storing of embryos or gametes for surrogacy except for legal purposes like IVF and medical research. As per section 3, abortion during surrogacy is permitted only with the written consent of the surrogate mother and approval from appropriate authority in compliance with the Medical termination of pregnancy act, 1971. Conduction or facilitation of sex selection for surrogacy in any form is illegal.
• Section 4 of the act provides regulation of surrogacy and surrogacy procedures. As per this provision only the registered surrogacy clinics are allowed to conduct surrogacy procedures subject to the conditions of the act. The surrogacy procedure is allowed only for gestational surrogacy and it must be for altruistic surrogacy; A Certificate of Essentiality, which includes a District Medical Board medical recommendation, a court order verifying the parentage and custody of the surrogate child, and insurance coverage for the surrogate mother for a minimum of 36 months to cover postpartum complications, must be obtained by the intended couple from the relevant authority. An eligibility certificate must be obtained by the surrogate mother, who must be a married woman between the age range of 25 and 35 with at least one child of her own. She must not utilize her own gametes for surrogacy and be willing to serve as a surrogate mother, as requested by the intended couple. Furthermore, a woman is only permitted to serve as a surrogate once in her lifetime, with a specific limit on the number of attempts. A certified medical professional must also provide her with a certificate of medical and psychological soundness. A separate Eligibility Certificate, certifying that the woman is between the ages of 23 and 50 and the man is between the ages of 26 and 55, must be obtained by the intended pair. They cannot have a living biological, adopted, or surrogate kid unless the child has a condition that is approved by the relevant authorities and is considered life-threatening. 
• Section 7 strictly prohibits the abandonment of a child born through surrogacy, whether within India or outside. A child cannot be abandoned by the intended spouse or woman for any reason, including though not limited to birth problems, genetic defects, medical conditions, defects developing subsequently, the child’s sex, or the conception of multiple children. 
• Section 8 provides right to surrogate child. This provision makes a child born via surrogacy the biological child of the intending couple or intending mother, giving them full legal recognition. According to current legislation, such a child is entitled to all the rights and benefits that a natural-born child would have. 
• To control and monitor surrogacy facilities, Section 15 mandates the establishment of the National Assisted Reproductive Technology and Surrogacy Registry. This register is in charge of keeping track of documents and making sure that all surrogacy clinics abide by the Act’s rules. Any clinic performing surrogacy treatments must register with this organization to support ethical, accountable, and transparent practices in assisted reproductive technologies and surrogacy services.
• Section 35 of the act provides for the appointment of an appropriate authority to control and monitor surrogacy practices in India. Within 90 days of the Act’s enactment, the Central Government is required to designate one or more suitable authorities for Union Territories, and State Governments are required to do the same for their individual states. An eminent woman representing a women’s organization, an officer from the Law Department (not lower than the rank of Deputy Secretary), an eminent registered physician, a chairperson who is an officer of or above the rank of Joint Secretary in the Health and Family Welfare Department, and a vice-chairperson who is an officer of or above the rank of Joint Director in the Health and Family Welfare Department constitute the appropriate authority for an entire State or Union Territory.
• Commercial surrogacy and associated practices, such as the use of brokers, ads, trading of embryos or gametes, sex selection, and the importation of embryos or gametes, are expressly prohibited by Section 38 of act. Abandoning, disowning, or taking advantage of the surrogate mother or kid is likewise prohibited. Contraventions carry a maximum penalty of 10 years in prison and a fine of up to 10 lakh rupees.
• Any intended couple, woman, medical practitioner, or surrogacy clinic that violates the laws governing altruistic surrogacy for commercial purposes faces a maximum sentence of five years in prison and a fine of up to ₹5 lakh for the first violation. Subsequent offences may lead to a fine of up to ₹10 lakh and a maximum sentence of ten years in prison as per section 40 of the act.

These are the key provisions of Surrogacy regulation act, 2021. These provisions under the act ensure ethical and legal surrogacy practices in India by permitting only altruistic surrogacy and prohibiting commercial surrogacy to prevent exploitation. 

 

DRAWBACKS OF THE SURRGOACY REGULATION ACT, 2021

Though surrogacy regulation act, 2021 is to prevent exploitation in surrogacy practices it has certain drawbacks which make the act quite restrictive and impractical in many aspects. The following are the drawbacks of the act,

• Only altruistic surrogacy is allowed by the Act, although it can be challenging to obtain surrogates for altruistic surrogacy on a regular basis.
• Due to the negative effects on surrogate mothers, the Act forbade commercial surrogacy; nevertheless, it also eliminated the opportunity for underprivileged women to earn money by serving as surrogates.
• The legislation forbids leaving a surrogate child abandoned, but it makes no provision of what to do if the intended parents decline to take custody because of unforeseen medical issues.
• The Act necessitates several approvals and rigorous documentation, which prolongs the process and adds to bureaucratic hold-ups.
• If an altruistic surrogacy agreement is being secretly monetized through indirect payments, there is no reliable way to find out.
• Doctors and clinics may be discouraged from providing surrogacy services by the severe penalties, which include hefty fines and lengthy prison sentences, out of concern for possible legal consequences.
• The Act neglects surrogate mothers’ long-term wellbeing by not requiring them to receive financial or psychological help following childbirth.
• The language of the Act excludes unmarried or living together partners and limits access to services solely to lawfully married couples within specific age ranges. The institution of marriage is favored by this.
• The law is discriminatory and restrictive since it prohibits foreign nationals, LGBTQ+ people, and single men from choosing surrogacy.
• Authorities may make arbitrary choices that lead to inconsistencies since the law is unclear about what medical need is for surrogacy.

These are the major drawbacks of the act which makes the act impractical and hinder the act’s effectiveness. The absence of explicit guidelines for surrogate welfare and certain weaknesses may result in uncontrolled or covert surrogacy operations. 

CRITCISM OF THE ACT

This act has been widely criticized stating that the act violates Article 21 of the constitution. Article 21 of the Indian Constitution guarantees the fundamental right to life and personal liberty, which includes the freedom to choose one’s reproductive path.  Only heterosexual married couples and specific types of women are permitted to use surrogacy, according to the Act’s stringent restrictions. This prevents males who are single, members of the LGBTQ+ community, and those who live together from enjoying the happiness that comes with parenthood. By limiting reproductive options, the law violates everyone’s fundamental right to start their own family and ignores the different realities of contemporary families. By outlawing commercial surrogacy, the law restricts a woman’s autonomy and financial independence by denying her the ability to make decisions about her own body. The Supreme Court’s opinion that reproductive rights are a fundamental component of individual liberty under Article 21 is clearly in conflict with this. 

The legislation unjustly denies surrogacy rights to widows, divorced women, LGBTQ+ people, and unmarried males, thereby excluding those who want to enjoy the joys of motherhood. The fundamental equality principle enshrined in Article 14 of the Constitution is violated by this prejudice.

JUDICIAL PRECEDENTS

1. Suchita Srivastava v. Chandigarh Administration

The Court has acknowledged that a woman’s reproductive decisions are an essential component of her personal liberty under article 21. But by restricting access to LGBTQ+ people and single men and only requiring altruistic surrogacy, the law denies them the ability to make very personal choices about becoming parents. The Court’s affirmed values of autonomy and dignity are violated by this restriction.

 

1. K.S Puttaswamy v. Union of India 

The Supreme Court has upheld that the freedom to make one’s own decisions regarding one’s body and reproductive options is part of the basic right to privacy guaranteed by Article 21. However, this autonomy is taken away when commercial surrogacy is prohibited and surrogacy is restricted to specific groups, depriving people of the freedom to choose how they wish to start their families. These restrictions contradict the Court’s recognition of the fundamental nature of individual liberty and dignity.

 

1. Baby Manji Yamada v. Union of India (2008)

A Japanese couple in one instance sought surrogacy in India, but their plans took an unexpected turn once they got divorced. Legal limitations stopped a single guy from adopting a girl kid, despite the father’s desire to raise the child, who was a baby girl. Consequently, the Supreme Court awarded the child’s grandmother custody. This case made clear how urgently a well-organized legal framework for surrogacy is needed to protect the rights and welfare of all parties—especially the kid.

 

1. Jan Balaz v. Anand Municipality 

The surrogate mother of a German couple who chose surrogacy in India gave birth to twins. However, as the twins were not acknowledged as Indian citizens, issues developed when they need Indian passports in order to travel. As a result, getting travel documents became legally challenging. The Supreme Court stepped in and allowed them to depart the nation. Later, the intended parents were able to adopt them. This case demonstrated how crucial it is for surrogacy to have clear legal frameworks and international recognition in order to safeguard the rights of both parents and children worldwide.

 

1. Navtej Singh Johar v. Union of India 

The ruling upheld the fundamental rights of LGBTQ+ people under Article 21 and decriminalized Section 377 of the IPC, marking a significant advancement toward equality. An important achievement for individual liberty was achieved when the Supreme Court maintained their right to privacy, dignity, and the ability to build relationships. This development is countered by the Surrogacy (Regulation) Act, 2021, which limits surrogacy to married heterosexual couples solely, denying LGBTQ+ people and single parents the opportunity to become parents. By ignoring the Court-recognized fundamental rights, this exclusion perpetuates discrimination. In addition to the wider ramifications of denying people the chance to start a family on their own terms, brings up important issues regarding equality and reproductive autonomy.

CONCLUSION

Surrogacy regulation act, 2021 is a significant legislation aimed at preventing surrogate mothers from abuse and stopping the commercialization of surrogacy in India is the Surrogacy (Regulation) Act, 2021. However, it has certain drawbacks which make the act impractical and quite ineffective to implement. But, ultimately, the aim should be to create a legal framework that upholds the principles of compassion, fairness, and respect, ensuring that surrogacy remains a viable option for those in need while safeguarding the rights and well-being of all individuals involved. A revised and more inclusive approach to the surrogacy regulation would make it more practical and effective and it will also prevent violations of Indian constitutional values of equality, personal liberty, and reproductive choice ensuring that surrogacy remains a safe and better reproductive option for everyone out there.

 

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