Tackling the Surrogacy Laws in India

Understanding Surrogacy Laws in India: A Comprehensive Overview

India has long been a popular destination for surrogacy, attracting international couples due to its cost-effective options and experienced medical professionals. However, the country has undergone significant changes in its approach to surrogacy in recent years, particularly with the introduction of the Surrogacy (Regulation) Act, 2021, which has reshaped the legal landscape for surrogacy practices.

This article will provide an overview of the key provisions and implications of the surrogacy laws in India, offering insights into the regulatory framework that governs the practice today.

1. The Evolution of Surrogacy Laws in India

Surrogacy in India gained widespread attention in the early 2000s, with many foreign nationals seeking surrogates for assisted reproduction. By 2015, India became a hub for commercial surrogacy, which prompted concerns regarding the ethical and legal implications, especially with the potential for exploitation of surrogate mothers.

In response to growing concerns, the Indian government passed the Surrogacy (Regulation) Bill, 2019, which was later enacted as the Surrogacy (Regulation) Act, 2021. This law was designed to regulate the practice of surrogacy, eliminate exploitation, and ensure the well-being of both surrogate mothers and children born through surrogacy.

2. Key Provisions of the Surrogacy (Regulation) Act, 2021

The new law lays down clear guidelines on surrogacy practices in India, with specific provisions designed to protect all parties involved. Here are some of the crucial aspects:

a) Altruistic Surrogacy Only

The law restricts surrogacy to only altruistic surrogacy, meaning that commercial surrogacy—where the surrogate mother receives compensation beyond medical expenses and insurance—has been banned. The primary goal is to ensure that surrogacy is not treated as a business transaction, minimizing the potential for exploitation.

b) Eligibility Criteria for Intended Parents

Intended parents must meet certain criteria to avail themselves of surrogacy in India:

• They must be Indian citizens.
• They should be a married couple (heterosexual) aged between 23 to 50 years for women and 26 to 55 years for men.
• Only infertile couples or individuals (who are medically certified) are allowed to seek surrogacy.
• Same-sex couples and single individuals are currently not eligible under the new law.

c) Criteria for Surrogate Mothers

To safeguard the well-being of the surrogate mother:

• A surrogate must be between 25 to 35 years of age.
• She must have already had at least one biological child of her own.
• A woman can act as a surrogate only once in her lifetime.
• Surrogates are only permitted to carry a child for an Indian couple (no international surrogacy).

d) No Commercialization of Surrogacy

The ban on commercial surrogacy is a significant part of the 2021 law. This means that surrogacy agencies can no longer charge for the service, and surrogates can only be compensated for medical expenses and insurance. This provision aims to ensure that surrogacy is not driven by financial gain but by the genuine intention of helping couples who cannot conceive.

e) Regulation of Surrogacy Clinics

Surrogacy clinics must be registered under the law to ensure they meet medical and ethical standards. These clinics must undergo strict scrutiny by the National Surrogacy Board to prevent unethical practices and safeguard the interests of all parties involved.

f) Insurance and Legal Protection for Surrogates

Surrogate mothers are entitled to comprehensive health insurance coverage and are legally protected throughout the process. The law mandates that surrogates must undergo thorough health checks and be provided emotional and psychological support.

3. Impact of the 2021 Law on the Surrogacy Industry

While the new surrogacy laws are designed to promote ethical practices, the ban on commercial surrogacy has had a significant impact. Many international couples who previously sought surrogates in India are now restricted, leading to a decline in the number of foreign nationals traveling to India for surrogacy services.

However, the focus on altruistic surrogacy has brought attention to the ethical aspects of the practice. The law emphasizes the importance of protecting the rights of both the surrogate mother and the child born through surrogacy. It aims to prevent the exploitation of women in vulnerable situations and ensure that surrogacy is conducted with respect for human dignity.

4. Ethical Concerns and Criticism

Despite the regulatory changes, the Surrogacy (Regulation) Act, 2021, has faced some criticism:

• Restrictions on Intended Parents: The exclusion of single individuals, same-sex couples, and foreign nationals has sparked debate about the law’s inclusivity and fairness.
• Impact on Women’s Rights: Some critics argue that the law does not sufficiently address the rights of women who wish to become surrogates for altruistic reasons.
• Limited Options for Childless Couples: The law may create more barriers for couples struggling with infertility, especially those unable to meet the strict eligibility requirements.

5. Conclusion: The Way Forward

India’s surrogacy laws have taken significant strides toward creating a safer and more ethical environment for surrogacy. While the ban on commercial surrogacy has been controversial, the emphasis on altruistic surrogacy aligns with international standards aimed at protecting vulnerable women.

As surrogacy practices evolve, it is essential to balance the ethical, social, and legal aspects of this process to ensure that it remains a viable option for those who need it, while minimizing risks and protecting the interests of everyone involved.

For professionals in the field of fertility, law, and healthcare, staying informed about these changes is crucial to understanding the complexities surrounding surrogacy and its evolving role in India.