Navigating Surrogacy In India : A guide for OCI and NRI Couples

"The greatest gift you can give someone is the gift of life." – Anonymous

Introduction

Surrogacy in India has undergone a significant legal transformation, particularly with the implementation of the Surrogacy (Regulation) Act, 2021. This legislation introduces stringent guidelines, making surrogacy accessible primarily to Indian citizens, Overseas Citizens of India (OCI) cardholders, and Non-Resident Indians (NRIs). This comprehensive article aims to provide an in-depth overview of surrogacy for OCI cardholders and NRIs, covering eligibility criteria, legal requirements, the surrogacy process, and the current regulatory landscape.

Legal Framework and Eligibility

Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021, seeks to ensure ethical surrogacy practices, protect the rights of surrogate mothers, and prevent exploitation. The Act mandates altruistic surrogacy, prohibiting financial compensation beyond the surrogate's medical expenses and insurance coverage.

Who Can Opt for Altruistic Surrogacy?

For Prospective Parents:

- Must be a married couple.

- The male partner should be between 26 and 50 years old, and the female partner between 23 and 50 years old.

- Must provide a medical certificate from a certified medical professional stating infertility.

For Surrogate Mothers:

- Must carry a child for another couple without financial gain.

- Must be within specified age and marital status parameters.

- Must have at least one child of their own.

- Must have certificates of physical and mental fitness.

Surrogacy for Overseas Citizens of India (OCI)

What is an OCI Cardholder?

OCI status allows individuals of Indian origin to live and work in India indefinitely without needing a visa. Introduced by the Citizenship (Amendment) Act, 2005, the OCI scheme enables foreign nationals of Indian origin to reconnect with their roots while enjoying certain privileges, including the ability to engage in surrogacy under specific conditions.

Eligibility Criteria for OCI Cardholders:

- Must be a married couple.

- Marriage should have lasted for at least two years.

- Must provide a letter from the foreign country’s embassy in India or their country’s foreign ministry recognizing surrogacy and allowing the child born through surrogacy to enter their country.

- Must commit to the responsibility of caring for the child born through surrogacy.

- Must undergo treatment at registered Assisted Reproductive Technology (ART) clinics recognized by the Indian Council of Medical Research (ICMR).

- Must have a duly notarized surrogacy agreement with the surrogate mother.

Surrogacy for Non-Resident Indians (NRI)

Who is an NRI?

Non-Resident Indians (NRIs) are Indian citizens who reside outside India for work, education, or other purposes. They hold an Indian passport and retain their Indian citizenship, which allows them certain privileges, including the option to pursue surrogacy in India under specific conditions.

Eligibility Criteria for NRIs:

- Must be a married couple.

- Marriage should have lasted for at least two years.

- Must provide a medical certificate from a certified medical professional stating infertility.

- Must undergo treatment at registered ART clinics recognized by the ICMR.

- Must have a duly notarized surrogacy agreement with the surrogate mother.

- Must provide a letter from their country’s embassy in India stating that their respective country recognizes surrogacy and allows the child born through surrogacy to enter their country.

The Surrogacy Process in India

Step 1: Eligibility Verification

- Ensuring legal, medical, and nationality criteria are met.

- Obtaining necessary documents, including marriage certificates and infertility certificates and other relevant documents.

Step 2: Legal Documentation

- Preparing and submitting affidavits, agreements, and other required documents for approval.

Step 3: NOC and Court Order

- Obtaining an essentiality certificate from the Appropriate Authority and the Board.

- Securing a court order to proceed with the surrogacy process.

Step 4: Surrogate Verification

- Surrogate undergoes a comprehensive medical and psychological evaluation.

- Verification ensures the surrogate's suitability for carrying the pregnancy.

Steps 5 to 7: IVF Processes till the delivery of the child.

Step 8: Closure of Surrogacy

- Post-delivery, the surrogate signs a No Objection Certificate (NOC).

- Finalising all legal paperwork and ensure the surrogate's health and well-being.

Regulatory Changes and Their Impact

Ban on Commercial Surrogacy

India was once a hub for commercial surrogacy due to its cost-effective services and lack of stringent regulations. However, concerns over unethical practices, exploitation of surrogate mothers, and legal complications led to the introduction of stricter laws. The Surrogacy (Regulation) Act, 2021, along with the Assisted Reproductive Technology (Regulation) Bill, aims to protect the health and rights of women involved in surrogacy and ensure ethical practices.

Key Regulatory Changes:

- Ban on commercial surrogacy: Only altruistic surrogacy is permitted.

- Restriction to Indian citizens and OCI cardholders: Foreign nationals are excluded.

- Increased health insurance coverage for surrogate mothers: Up to 36 months post-delivery.

- Inclusion of divorced or widowed women as potential surrogate mothers: Expands eligibility criteria.

Key Provisions of the Surrogacy (Regulation) Act, 2019

1. Marriage and Age Criteria: Surrogacy is permissible only for intending couples who have been married for at least five years. Women must be between 23 to 50 years old, while men must be between 26 to 55 years old.
2. Medical Conditions for Surrogacy: Intending couples must demonstrate medical infertility, verified by a medical certificate. Surrogacy is also allowed if the pregnancy poses a risk to the woman's life or is likely to result in serious injury or permanent health issues.
3. Ban on Commercial Surrogacy: The Act prohibits commercial surrogacy, where a surrogate mother is compensated beyond medical expenses and insurance coverage. Only altruistic surrogacy is permitted, where the surrogate is a close relative of the intending couple and receives no financial reward except for reasonable medical expenses and insurance.
4. Criteria for Surrogate Mother: The surrogate mother must be a married woman who has previously given birth to a healthy child of her own. She must be a 'close relative' of the intending couple, although the Act does not define the degree of closeness explicitly.
5. Eligibility Certificates: Both the intending couple and the surrogate mother must obtain eligibility certificates from the appropriate authority before proceeding with surrogacy arrangements.
6. Establishment of Regulatory Bodies: The Act mandates the establishment of a National Surrogacy Board at the central level. State Surrogacy Boards and appropriate authorities in States and Union territories will oversee and regulate surrogacy practices at the regional level.

Additional Provisions from the 2019 Bill:

• Surrogacy is only legal for intending couples who have been married for at least five years and meet age criteria.
• It is permissible for those who have tried for five years and are unable to conceive or for whom pregnancy is unsafe.
• Commercial surrogacy, where a surrogate mother is paid beyond reasonable medical expenses and insurance, is prohibited.
• Only altruistic surrogacy, where the surrogate mother is a 'close relative' and receives no financial reward beyond reasonable medical expenses and insurance, is permitted.
• The surrogate mother must be a married woman who has already given birth to a healthy child.
• Both the intending couple and the surrogate mother need eligibility certificates from the appropriate authority.

Implications and Challenges

The Surrogacy (Regulation) Act, 2019, aims to protect the interests of all parties involved in surrogacy while addressing ethical concerns and preventing exploitation. By restricting surrogacy to altruistic arrangements and imposing stringent eligibility criteria, the Act seeks to ensure that surrogacy is pursued for genuine reasons of infertility or medical necessity.

However, the Act has also faced criticism and raised challenges:

• The Act limits surrogacy to heterosexual married couples, excluding single individuals, same-sex couples, and unmarried couples.
• Obtaining eligibility certificates and navigating the regulatory framework can be cumbersome and time-consuming.
• The definition of 'close relative' and the prohibition of commercial surrogacy raises ethical questions about the rights of surrogate mothers and the commodification of reproductive services.

Legal and Ethical Concerns:

- Exploitation of Surrogate Mothers: Stricter regulations aim to prevent financial exploitation and ensure the surrogate’s well-being.

- Citizenship of Newborns: Addressing the legal status of children born through surrogacy to foreign nationals.

- Child’s Best Interests: Ensuring the child’s welfare and ethical considerations in surrogacy arrangements.

Conclusion

Surrogacy in India remains a viable option for married Indian couples, NRIs, and OCI cardholders who meet the strict eligibility criteria and adhere to the regulatory framework. While the process has become more restrictive, it continues to offer hope for those struggling with infertility, provided they navigate the legal and medical requirements carefully. Understanding the detailed steps and adhering to the legal framework ensures a smooth and ethical surrogacy journey in India.

Navigating the legal landscape of surrogacy, demands specialized expertise, especially from a lawyer well-versed in international law. The intricacies involved in cross-border surrogacy arrangements necessitate understanding diverse legal systems, potential conflicts of laws, and international treaties affecting parental rights and surrogate protections. An attorney with international knowledge offers critical insights into ensuring compliance with Indian regulations and the laws governing intended parents in their home countries. This expertise is pivotal in crafting robust legal agreements, obtaining requisite clearances, immigration issues, and addressing potential legal risks inherent in cross-border reproductive services. It ensures a legally secure and ethically grounded surrogacy process, safeguarding the interests and rights of all parties involved amidst the complexities of global legal frameworks.

For further assistance and to discuss your specific case, please contact us.