Abstract      

Nowadays, Infertility becomes one of the major problem of couples, who want to become parents. Our science had so many scientific and technological advancements in obstetrics[1] and gynecology[2]. Surrogacy is a process in which a lady (who want to become surrogate with her own will) bears and delivers the child for intending couples. But still surrogacy is not accepted by all. With the passage of time, it is misused by some selfish people for their mean purposes. In India, we have an act for proper arrangement of surrogacy. The act is The Surrogacy (Regulation) Act, 2021 that deals with laws related to surrogacy in India. These laws aim to protect the right of all personalities i.e., surrogate mother, parents who want child through surrogacy, and the child born through surrogacy. This act does not promote commercial surrogacy[3] and permits only altruistic[4] (selfless) surrogacy. The act includes concerns about exploitation and trafficking of women and children. This act looks about for the proper regulation of the surrogacy industry and try to provide better protection for the surrogate mothers and the child legally. It is very peak time to think about problems and regulations of the Act, otherwise surrogacy will become a bane rather than boon for the people, especially for the couples who want child through this technology.  This paper will deal with concept of surrogacy and the regulation act.

Keywords: Surrogacy Regulation Act,2021, Surrogate mothers, intended couples[5], Child born through surrogacy.

                    The Surrogacy (Regulation) Act, 2021- Bane or Boon?

       Introduction                                                

Surrogacy is a way of pregnancy in which a lady agrees to keep up and give birth to a baby for a couple who is inadequate to have children naturally. Infertility becomes a major concern among the people and it affects both men and women, who want to take their relationship to a next step. But due to infertility among them they both are helpless to do so. Now science has elaborated itself so much that there is progress in the artificial reproductive procedures which allowed to embrace parenthood to all the genders and surrogacy is one of them. India has come out as one of the world’s main and major destinations around the world for those who opt surrogacy. But in India, surrogacy has been operating without any rules and regulations, which leads to ill- treatment of surrogate lady and children born through surrogacy. Every new change has some merits as well as demerits, surrogacy has too. This type of exploitation raised the need of some laws, rules and regulations. (Parashar, 2023)

The Surrogacy (Regulation) Act, 2021, was passed by Indian Parliament in August,2021, to protect the surrogacy process in India. This act displaces the previous law on surrogacy enacted in 2019 and ready to take the challenges and concerns relating to surrogacy in India. Some welcomed the act, but on the other hand, others were against the act.

According to this act, the eligibility criteria for surrogate mothers is;

1. Woman must be 25 to 35 years old, married, and have one child of her own,
2. Woman must only be a surrogate once in her life,
3. Woman must have a certificate of medical and psychological fitness for surrogacy by a registered doctor and

The eligibility criteria for intended couples are;

  Couples must have a “certificate of essentiality[6]” and “certificate of eligibility[7]” issued by the proper authority.

The main focus of this act is to help those who wants to become a parent and is not able to do so due to some medical reason. He or she can opt surrogacy but in proper legal way.

Some key points of the Act

1. In section 2 (1) (g), Altruistic surrogacy is defined. According to this act, this the legal kind of surrogacy in which surrogate mother carries the baby without any greed for the parents who are suffering from the infertility. This means surrogate mother does not receive any kind of money and compensation for their service except the medical and insurance expenses.
2. Section 2 (1) (g) defines Commercial surrogacy, which means surrogate mother wants more money and compensation beyond the medical expenses to give birth to a child for the parents who opt surrogacy. Commercial surrogacy leads to sell or buy of human fetus and embryo which results in the misuse of surrogacy. That’s why the act prohibits the commercial surrogacy.
3. Section 3 of this Act includes the management and control of surrogacy clinics. According to this, no surrogacy clinic will be involved or help in any surrogacy process and arrangements of any kind, unless the clinic is registered under this Act.
4. According to section 4 of this Act, except for Altruistic and Gestational surrogacy, not for commercial surrogacy, no place, including surrogacy clinics, shall be used for surrogacy and any process connected therewith.
5. In the section 15 of this Act, for the registration of surrogacy clinics under this Act, there is initiation of National Assisted Reproductive Technology and Surrogacy Registry. 
6. In section 26 of this Act, there is provision of constitution of the State or Union Territory Boards which have the duty to make sure that there should be proper functioning by authorities in the State or Union Territory and there is any misuse or misbehave happened, then there should be proper and required action against them recommended.

So, there are some few and magnificent points mentioned. These points are very intense and the idea of prohibition of commercial surrogacy and execution of altruistic surrogacy is splendid. There should be critical appraisal[8] or throughout evolution of this Act.   

Background

As we all very well aware that, surrogacy is a controversy in its own and especially, in India, it has been a very hot topic for controversy and gossiping, just because there is lack of awareness and knowledge among people and absence of rules and regulations. India has become a quite popular destination in 2015, among people as there is cheap and unregulated[9] surrogacy. Cheap and unregulated surrogacy leads to many legal issues. To resolve and try to resolve these issues, The Surrogacy (Regulation) Act,2021 was passed which intent to manage surrogacy in India, establishing a legal framework for surrogacy arrangements, protect the rights of surrogate mothers and child born through surrogacy.

It also allows single women to avail of surrogacy services. Couples who have a child, are not allowed to opt surrogacy, except in the case, if their child is suffering from life-threatening disease.[10]

Types of surrogacies

There are mainly four types of surrogacies: –

1. Traditional Surrogacy- Traditional surrogacy is a type of process in which the surrogate mother is the one who donates the egg. In the other word we can say that the lady who wants a child, she herself keeps the child in her womb. The surrogate mother and the child had genetic relationship. She conceived with the help of IVF[11] by using sperm of biological father.
2. Gestational Surrogacy- Gestational surrogacy is a kind of process in which embryos are produced by IVF by using the sperm and egg of father and mother respectively, who opts surrogacy and then embryo implants in uterus of surrogate mother. As the traditional surrogacy, there is no genetic relation between the surrogate mother and the child born.
3. Commercial Surrogacy- This type of surrogacy is illegal but opt by many. In this, surrogate mother wants more money and compensation beyond the medical expenses to give birth to a child for the parents who opt surrogacy.
4. Altruistic Surrogacy- This is the legal kind of surrogacy in which surrogate mother carries the baby without any greed for the parents who are suffering from the infertility. This means surrogate mother does not receive any kind of money and compensation for their service except the medical and insurance expenses.

Hence, there is four types of surrogacies which can opt by the couples who are facing infertility problems.  

Effects of The Surrogacy (Regulation) Act, 2021

          The most important impact of this act is that, under this act, Commercial Surrogacy is totally banned, in which surrogate mothers is paid for carrying and delivering a child. This act only allows Altruistic Surrogacy, where intended couples can only repay the medical expenses and the insurance coverage of surrogate mother.

          There is establishment of National Surrogacy Board and State Surrogacy Boards to regulate surrogacy in India, under The Surrogacy (Regulation) Act,2021. The National Surrogacy Board will be responsible for developing policies, guidelines, norms and standards for surrogacy arrangement in India. This board will take proper implementation of act and will also take required action against any violations and exploitations.

          This act also allows the surrogate mother to refuse to abort[12] the child, except if she has any threat to her life or health. (Parashar, 2023)

           This act faced so many criticisms as it has scope of surrogacy to only married couples, not to the other groups such as LGBTQ+ couples, single women and men, people in “live-in-relationship” and widowers, who want child with the help of surrogacy.

            Another impact was that due to the implementation of this act, so many illegal surrogacy clinics have shut down and number of foreign clients also decreased.

Hence, the new act on surrogacy in India is still to be fully implemented, or to be accepted by the citizens. (Parashar, 2023)

Punishment under the Surrogacy Act

1. Under the section 32, there is punishment of imprisonment of 5 years, may extends to 10 years or with fine up to 10 lakhs, may also extends to 25 lakhs or both for the crime of sex selective.
2. Under the section 33, there is punishment for violation of the Act. The punishment for violation is fine of 5 lakh that may be extends to 10 lakh or imprisonment of 3 years up to 8 years with fine.
3. Section 40 includes the punishment for not following the altruistic surrogacy with imprisonment of 5 years and with fine which may extend to 5 lakhs.

Some complications of The Surrogacy (Regulation) Act, 2021

As we all are very well aware about that sometime the Surrogacy Act acts like a boon or sometime acts like a bane. There are some complications which had faced by the Act and this shows that it is difficult to regulate the Act in future. Some complications are mentioned below;

1. Sometimes, intended parents do not want the child born through the surrogacy and they leave the child with surrogate mother and that abandoned child becomes the responsibility of the surrogate mothers. There must be some contract between the intended parents and the surrogate mother regarding the child born through surrogacy.
2. This act only allows altruistic surrogacy but it is very difficult to find the woman for altruistic surrogacy because nowadays no one works without their own profit.
3. We know this Act prohibits the commercial surrogacy but for many poor women, surrogacy is their source of income and because of this prohibition, their bread and butter has been snatched away from them.
4. This act allows surrogacy option for legally married couple but does not take care about the concern of couples who are in live-in-relationship and want to opt surrogacy for child.
5. This act also not allows the surrogacy for homosexual couples, unmarried women to have child through surrogacy.
6. There is also an age limit of 35 to 45 years for becoming mother by surrogacy. The question is arising that why not one can opt surrogacy below the 35 and beyond the 45 years.

Cases related to Surrogacy Act

1. Lior Avi Ben David & Anr. Vs. Union of India & Ors. (2014): The baby Manorama case was about the citizenship of a baby born to an Indian surrogate mother for a German couple. The Indian government refused to give a passport and citizenship to the baby because there is no genetic[13] link between the surrogate mother and German couple. The case highlighted the requirement for proper regulations on citizenship issue for child born through surrogacy.
2. Sreeja Vs. State of Kerala (2016): In this case, the Kerala High Court stated that a single lady could not be allowed to have a child through surrogacy. It is clarified the legal position on surrogacy for single women in India.
3. Baby Manji Yamada v. Union of India (2008): This case is related to a Japanese couple who opt surrogacy and choose an Indian surrogate for their child but the couple divorced before the birth of child. The case call attention to the requirement of proper regulation for the surrogacy process and arrangements, especially in the international surrogacy. This case leads to the concern of exploitation of the surrogate and child.

Hence, there is so many cases, which played important roles in building and molding the whole concept of surrogacy and leads to regulate The Surrogacy (Regulation) Act,2021.

Research Methodology

The research is based on secondary sources of information like articles, YouTube as well as government and non-government websites.

Review of Literature

This act aims to protect and manage the rights of all individuals involved in surrogacy process. A study done by Sharma and Jaiswal analyzed that commercial surrogacy is prohibited by new law and allows only altruistic surrogacy, in which any close relative of intended couples can act as surrogate. The study also told that there are very strict eligibility criteria for intended couples and surrogate mother. This law leads to shut down of many surrogacies’ clinic. (Parashar, 2023)

Suggestions

I would like to suggest that government should take care of concerns of single individuals, same sex couples, and live-in-partners. There should be proper rule for the compensation for surrogates as the act does not provide clear guidelines on how much compensation should be given to surrogates. According to my point of view, there should be rule that intended couples will take care the needs of surrogate mothers after the birth of child also because she gave the reason of their lives. (Parashar, 2023) There should not be the age limit as anyone can opt surrogacy whenever they want to have child. There must be strict provisions for the proper regulation and management of the surrogacy process. There should be establishment of proper authority who will make sure that there should not be any exploitation of the surrogate mothers and the children born through the surrogacy and the authority should take proper and the required step against those who violates the procedure of surrogacy.

Conclusion

The surrogacy (Regulation) Act,2021 is the act to protect the rights of surrogate mothers, child born through surrogacy and intended couples. It aims to regulate the surrogacy process in proper and ethical way. This act had various impacts on surrogacy arrangements in India like prohibition of commercial surrogacy, establishment of National Surrogacy Board, protection of the rights of surrogate mothers and child born through surrogacy, eligibility criteria for intended couples, etc. The act has been met with both support and criticism. The selling and buying of fetus and embryo is also get decreased as the commercial surrogacy is prohibited under this act. This act became boon for some persons as well as bane for others. The act must take the assurance of proper regulation of surrogacy with protecting the fundamental rights of the individual. (Parashar, 2023)

This article is written by – Sarthak Parashar, Institute of Law and Research.

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[1] The area of medicine connected with the birth of children

[2] The study and treatment of the diseases and medical problems of women

[3] When surrogate mothers are paid for surrogacy

[4] Where surrogate does not receive monetary compensation

[5] A couple who cannot conceive on their own and choose surrogacy to build their family

[6] Commonly used in medicine, where a doctor states that their patient requires special                  treatment

[7] Document which enables the intended couples to surrogacy

[8] The process of carefully examine the outcome

[9] Not controlled by laws

[10] A very serious one that can cause death

[11] A process in which egg is fertilized outside the body from a woman and then this egg is put again inside her uterus to develop

[12] To end a pregnancy early in order to prevent a baby from developing

[13] Connected with genes and heredity