A CRITICAL ANALYSIS OF SURROGACY (REGULATION) ACT, 2021: KEY PROVISIONS AND DRAWBACKS
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, 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. 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, Commercial surrogacy In this, the surrogate mother receives financial compensation apart from its medical expenses related to pregnancy. 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