In India, infertility is typically regarded as a societal taboo, however because of the tremendous progress made in medical technology, infertility can now be treated. Surrogacy is one of a crucial procedure for the infertility but for a few decades already, commercialization of surrogacy has affected India.
Since surrogacy is a relatively new term in the country, there was neither statutory legislation to regulate it nor awareness that there should be one. To add to the discussion, surrogacy was not even socially acceptable in the nation, which encouraged unethical, uneducated, and exploitative marketing.
India now has regulations to illuminate the benefits of surrogacy and to prevent its unethical commercialization and hazards. Indian Council for Medical Research has given guidelines in 2002, approved by the government in 2005, regulating Assisted Reproductive Technology procedures (herein referred as “ART”). Thereafter, the Law Commission of India submitted the 228th Report on ART procedures discussing the importance and need for surrogacy, and also the steps taken to control surrogacy arrangements. The new law’s objectives are to “control” and “supervise” ART facilities and surrogacy, as well as to “curb” unethical behaviors including sex selection and surrogate mother exploitation, by enforcing monetary fines and imprisonment terms for violators.
Evolution in Surrogacy Law- Legal Insights
- Assisted Reproductive Technology Bill, 2013
The Assisted Reproductive Technology Bill, 2013 was pending for quite a while which did not allow commercial surrogacy that involves exchange of money for anything other than paying for medical expenses for the mother and the child. The bill also prohibited couples already having one child, foreigners or Overseas Citizens of India (OCI), holders as well as live-in-Partners, single people, homosexuals and widows for opting surrogacy.
- Surrogacy (Regulation) Bill, 2016 and 2019
In 2016, a Surrogacy (Regulation) Bill was introduced and passed in Lok Sabha, the lower house of the Indian parliament, proposing to permit only Indian heterosexual couples married for at least 5 years with infertility problems to access altruistic or unpaid surrogacy and thereby banning commercial surrogacy. The 2016 bill lapsed owing to the adjournment of the parliament session. The bill was reintroduced and passed by the Lok Sabha in 2019.
- Surrogacy (Regulation) Act, 2021
This Act explains surrogacy as a practice in which if a couple is incapable of producing a child of their own due to infertility or any disease, they are eligible for surrogacy process with certain guidelines. It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease.
Altruistic surrogacy includes no money related pay to the surrogate other than the clinical costs and protection inclusion during the pregnancy. In Vitro treatment (IVF) is the most widely recognized and powerful sort of ART. The ART Regulation 2021 gives a framework to the execution of the law on surrogacy by setting up of the National Assisted Reproductive Technology and Surrogacy Board.
In order to improve the facilities provided in surrogacy clinic the Ministry of Health and Family Welfare came up with Surrogacy (Regulation) Rules, 2022 on 21st June 2022 under the ministry of Mansukh Mandaviya, which elaborates the requirement of number of persons employed and the qualifications that they must possess. In addition to that it also provides for the form and manner in which the registration will take place and the procedure to pay the fees for surrogacy clinic.
Circumstances for opting Surrogacy
- When a woman has no uterus or missing uterus or abnormal uterus or the uterus is surgically removed due to any disease.
- Failed to conceive even after multiple In vitro fertilization or Intracytoplasmic sperm injection attempts.
- In case of multiple pregnancy losses, and the medical reason is unexplained.
- If pregnancy is impossible due to some illness.
Analysis of Key Points of Surrogacy (Regulation) Rules, 2022
- Central Government by issuing a notification declared the eligibility criteria and number of persons required at a registered surrogacy clinic. Further, the details for the minimum equipment required at such clinics are also specifically mentioned.
- The composition of such clinics as per the notification is, that any such clinics shall have at least one gynecologist, anesthetist, embryologist and counselor and the clinic may employ additional staff by the ART Level 2 clinics.
- Gynecologist at surrogacy clinics shall be a medical post-graduate in gynecology and obstetrics and should have record of performing 50 ovum pickup procedures and at least 3 years of working experience in an ART clinic under supervision of a trained ART specialist.
- ART is defined as “assisted reproductive technology” with its grammatical variations and cognate expressions, means all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the reproductive system of a woman”. Henceforth, it is very essential for a gynecologist to have expertise in this technology.
- Form 1 in the notification specifies the application form for Couple of Indian Origin which means “The couple where both husband (male) and wife (female) are Overseas Citizens of India cardholders in accordance with the Acts, Rules, Instructions, or Guidelines being followed by the Ministry of Home Affairs from time to time subject to fulfilment of various criteria as per the Surrogacy (Regulation) Act, 2021” as introduced in the Surrogacy (Regulation) Amendment Rules, 2023, or an Intending woman for availing surrogacy to receive a certificate of recommendation from the board.
- To safeguard the rights of the surrogate mother the provision for insurance coverage has been introduced, which mandates the intending couple or woman to purchase a health insurance for the surrogate mother for 36 months.
- An affidavit before a Metropolitan Magistrate or a Judicial Magistrate of the first-class shall be signed by the woman or couple with intention of giving guarantee under section 2 of the Surrogacy (Regulation) Act, 2021.
- The maximum number of attempts of surrogacy procedure shall not be more than 3 times.
- The surrogate mother shall give her free consent as per the specifications provided in Form.
- It has been decided the gynecologist shall implant only 1 embryo, with an exception of 3 embryos in special cases.
- In case where a surrogate mother wants to abort the child then abortion process is to be followed as per Medical Termination of Pregnancy Act, 1971.
Registration Process of Surrogacy Clinic
- Surrogacy Clinics shall mandatorily register themselves with appropriate authority accompanied with prescribed fees, as it involves declaration of qualified staff, equipment, and procedure type undertaken by the Surrogacy Clinics.
- If the application is accepted by the authority then they will grant a certificate of registration as per Form 4 to the applicant. The applicant thereafter, have to display the certificate of Registration at a conspicuous place at its place of business.
- After the rejection or cancellation or suspension of the application under section 13 and such communication made under section 14 the applicant has option to make an appeal within 30 days of such communication, as per form of appeal specified in Form 5.
- National Board or National Registry or State Board or Appropriate Authority or any other person authorized are empowered and the surrogacy clinics shall allow them to inspect the place, equipment and records. The inspection can take place at any time within working hours without any notice. However, such search shall not endanger gametes or embryos stored.
CASE STUDY (Case No. 8448/2022 – KARAN BALRAJ MEHTA & ANR. v. UNION OF INDIA)
A petition was filed by Karan Balraj Mehta and Dr. Pankuri Chandra with Delhi High Court, challenging the banishment of a single unmarried man and a married woman having a kid from surrogacy and requested the decriminalization of commercial surrogacy under Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021.
The Petitioner Karan Mehta contended that it’s an individual choice of a single unmarried man about having a child through surrogacy and they stand barred from using surrogacy as a reproductive option, which is discriminatory and against the Constitution’s Articles 14 and 21.
Further, Petitioner no. 2 Dr. Pankuri Chandra has been made ineligible under the Act because she lacks a medical condition that would require surrogacy and is unable to find and receive consent from a qualified surrogate mother.
The petition contends that one aspect of the right to privacy protected by Article 21 of the Constitution is the right to reproductive autonomy. Therefore, the right of protection of each and every resident or individual to be liberated from unjustifiable legislative interruption into issues generally influencing a choice to bear or sire a kid through surrogacy can’t be removed.
This petition is listed for further hearing.
As India is one of the significant center points of these practices, the Act is surely a positive development but there are few aspects on which the laws on Surrogacy stands contradictory. According to Article 21, “Right to Life” is a fundamental aspect and right to reproduction has been embraced under it. The right for women to have children and the right to bring a pregnancy to term are all included in their reproductive rights. Therefore, it is clearly a violation of Articles 21 and 14 to limit surrogacy while denying reproductive options.
However, it is very crucial to maintain certain standards in the professions where risk to life of a person is involved, with the same motive the central government issued the guidelines to establish quality surrogacy clinics and explained the pre-requisites that the surrogacy clinics shall comply with before providing the services. In addition to that certain guidelines are also provided for an intending couple or woman who are opting for surrogacy. With these measures a protective process for a surrogate mother is created.