SURROGACY LEGAL IN INDIA?

Table of Contents

INTRODUCTION

Surrogacy is an arrangement between a woman where a surrogate (woman) agrees to carry and give birth to a child of an intended couple/person who could not have children for medical conditions, pregnancy risks, etc.

A surrogate mother is a substitute for the genetic-biological mother. There are two types – traditional and gestational surrogacy.

In traditional- the child is genetically related to the surrogate mother, who provides the egg, and the intended father or anonymous donor.

In Gestational -, the child is genetically related to the woman who donated the egg and the intended father or sperm donor, not the surrogate.

Commercial surrogacy (CS) is a form in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher-income infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents.

Surrogacy is legal in India in the form of Gestational Surrogacy.

Definition as per Indian Law

Section 2 (zd) of the Surrogacy (Regulation) Act, 2021 (The Act) defines It 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.

The definition provided under the Act is different from the general definition because, in India, only couples and not a single person can take the help of surrogacy to have a child. Also, the term intended couple here means a man and a woman above the age of 21 years and 18 years, respectively.

The Bill

The Surrogacy (regulation) bill, 2016 was introduced in Lok Sabha on 21st November, 2016, and on 12th January, 2017 it was referred to the standing committee. Thereafter on 10th August 2017, the committee gave its report on the same to Lok Sabha and on the basis of that report Lok Sabha passed the bill on 19th December 2018.

The Bill, 2016 focuses on the prevention of (CS)* and the promotion of altruistic surrogacy. The bill also safeguards the surrogate mother and child from exploitation. It is a way by which an infertile married couple who are eligible in accordance with the provisions of the bill can now bear a child with the help of a surrogate mother eligible as per provisions of the bill. However, the surrogate mother will not be given any monetary benefit or compensation for renting her womb to the intended couple except for her medical and insurance expenses during pregnancy.

The proposed legislation provides for the registration of surrogacy clinics and the establishment of the National and State surrogacy board and Appropriate Authorities.

Surrogacy Regulation Act, 2021

An important provision of the Act

Section 3 of the Act provides for

1) Compulsory Registration of Surrogacy Clinic,
2) No surrogacy at any other place than a registered clinic, no Specialist or medical practitioner shall perform (CS)
3) No Specialist or medical practitioner to perform without qualification
4) No promotion or aid or advertisement
* of (CS) in any way by a clinic or any person
* That encourages a woman to be a surrogate mother
* Seeks women to Act as a surrogate
* Implies the willingness of women to become a surrogate
5) No abortion without the consent of the mother and Appropriate Authority (such authorization should comply with the provisions of the Medical Termination of Pregnancy Act, 1971)
6) No storage of Human Embryo or Gamete is allowed for this purpose.

Section 4 Regulation of Surrogacy and Surrogacy Procedures

Section 4- Under the following purposes, it is permitted- Infertile, Altruistic (Unselfish) purpose, No commercial surrogacy, No prostitution or sale of a born surrogate child, for any other purpose or disease for which regulation made by the Board allows.

Sec 4(3) Director or In-charge of the clinic and specialist of the clinic are satisfied that the following Conditions are fulfilled-
A certificate is issued by a competent Authority after confirming the below conditions-
1) Certificate of infertility to the couple intending surrogacy by District Medical Board,
2) Order of Court passed by a Magistrate of the first class or above, regarding custody and parentage of child,
3) Insurance of Surrogate mother and child.

Section 6: Written consent of surrogate mother is necessary and she shall be told all the side effects of the birth.

Section 7: No child shall be abandoned (Defined under Section 2(a) of the Act) by the intending parents after birth for any reason or defect or gender. (Child born by surrogacy shall be deemed to be a natural child)

Section 9: No person shall in any way force the surrogate mother to abort the child

Eligibility certificate of surrogate mother by Appropriate Authority

1) Ever married woman having own child (25-35 age).
2) Close relative (Not defined in this Act)
3) One surrogate birth in her lifetime (no limit for attempts)
4) Medical and psychological Fitness certificate of intending surrogate mother.

Eligibility of Intending Couple Appropriate Authority

1) Age women 23 to 50 men 26 to 55,
2) 5 years of marriage,
3) Indian citizen,
4) No child before by any way (exception- child having life-threatening disease or disorder with no cure with certificate of district medical Board)

Punishment for commercial surrogacy in India

Section 38 of the Surrogacy Act provides for offenses and penalties. If any, activity is established, the offense invites imprisonment for up to ten years and a fine, which may extend to ten lakh rupees

Case Laws

Baby Manji Yamada v. Union of India (2008)

The Supreme Court, in this case, was faced with the custody of a child born out of surrogacy. The child, Baby Manji Yamada, was born to Japanese parents who got divorced before the child’s birth. The biological father wanted the child, but as there were no provisions in law dealing with such a scenario, the Supreme Court intervened, and custody was given to the father. This landmark case raised several issues relating to surrogacy, like the rights of a child born through surrogacy.

CS* – Commercial Surrogacy