An Overview of the Surrogacy (Regulation) Act, 2021

The article, 'An Overview of the Surrogacy (Regulation) Act, 2021' delves into the realm of surrogacy, focusing on how the legislation strives to prevent the exploitation of women. It outlines the Act's objectives of safeguarding the rights of surrogate mothers and establishing ethical practices within surrogacy arrangements.

An Overview of the Surrogacy (Regulation) Act, 2021

Reproduction is a fundamental necessity for the survival of all living beings. It stands as one of the most fundamental traits inherent in any organism. To uphold religious customs, preserve familial traditions, and nurture a specific community, each individual possesses an inherent longing for biological lineage. The importance of the inception and birth of a child extends beyond personal fulfilment; it also plays a vital role in the survival and continuation of our society. Raising a child is often seen as a straightforward endeavour for most of the couples. However, numerous circumstances prevent many individuals from realizing their dreams of having a child. The couple without children desires to experience the joys of parenthood, and they are exploring alternative options such as Assisted Reproductive Technologies.

As the jurisprudence of human rights has progressed and evolved, the right to have children has emerged as a fundamental aspect of these rights. Technological advancements in human reproduction and medical science have paved the way for various strategies to help couples conceive children genetically linked to them. These strategies include in-vitro fertilization, surrogacy, artificial fecundation, and other assisted human reproductive technologies. Collectively, these technologies are encompassed under the term Assisted Reproductive Technology.

What is Surrogacy?

Surrogacy is a concept that lacks a specific definition in Indian statutory enactments. The origin of the term "surrogate" can be traced back to the Latin word "surrogates," which refers to a substitute or someone who acts in place of another. According to the Black's Law Dictionary, surrogacy involves the process of carrying and giving birth to a child on behalf of another individual and the "surrogate parent" describes a person who assumes the parental role for a child, despite not being their biological parent.

The New Encyclopaedia Britannica provides a comprehensive definition of "surrogate motherhood," which describes the practice of a woman (the surrogate mother) bearing a child for a couple who are unable to conceive naturally. This could be due to infertility or the wife's inability to undergo pregnancy.

The surrogacy is of two types: traditional surrogacy and gestational surrogacy. In the process of traditional surrogacy, the biological mother is artificially inseminated with the husband's sperm. On the other hand, in gestational surrogacy, the eggs from the wife and the sperm from the husband are combined through in vitro fertilization to create an embryo, which is then implanted into the surrogate mother. Typically, in both procedures, the surrogate relinquishes her parental rights; however, this aspect has encountered several legal controversies.

What are the key features of the Act?

The Act precedes several draft legislations concerning the regulation of surrogacy, namely the Assisted Reproduction Technologies Regulations of 2008, 2010, and 2014, as well as the Surrogacy Regulations of 2016, 2019, and 2020. The Surrogation Regulation Bill of 2019, which the Lok Sabha forwarded for comprehensive examination, discussion, and review by a select committee comprising twenty-three members from the Rajya Sabha, was approved on August 5, 2019. Following the publication of the committee's report on February 26, 2020, the Union Council passed the Surrogacy Regulation of 2020. The President provided approval to the Bill on December 25, 2021, and it officially came into effect in 2022.

The features of the Act can be discussed under the following headings:

a) Regulation of Surrogacy Clinic (Section 11): It is stipulated that any facility involved in surrogacy or supporting surrogacy activities is required to be registered under the Act. Registration is mandatory and prohibits surrogacy clinics from engaging in or providing any assistance regarding surrogacy procedures and treatments without meeting the requirements outlined in the legislation.

b) Prohibition on Commercial Surrogacy and Advertisement (Section 3 r/w 38): There exists a strict restriction which applies to every individual or organization involved in the field of surrogacy, such as surrogacy clinics, paediatricians, gynaecologists, embryologists, registered medical practitioners, and others. This constraint strictly prohibits them from partaking in any type of commercial surrogacy or endorsing, distributing, advocating, promoting, or advertising anything that might encourage a woman to undertake the role of a surrogate mother.

c) Prohibition on Abortion without Consent of Surrogate Mother (Section 10): To ensure the utmost respect for the surrogate mother's rights and well-being, it is strictly mandated that no abortion can be undertaken or instigated within the context of a surrogacy arrangement unless both the surrogate mother and a licensed medical professional, encompassing professionals provide explicit consent.

d) Provides Eligibility Criteria for Surrogate and Intending Couple (Section 4): In the case of Surrogate, she must be a married woman who has already experienced the joy of having her child. Additionally, she should fall within the age of twenty-five to thirty-five years at the time of embryo implantation. The legislation also emphasizes that the surrogate should be a close relative of the couple entering into matrimony.

Moreover, it strictly prohibits the surrogate from contributing to her reproductive cells and restricts her from undertaking such a selfless act more than once in her lifetime. Similarly, in the case of intending couple, the Act stipulates that the intended couple's age on the day of certification shall be between twenty-three to fifty years in the case of a female and between twenty-six to fifty-five years in the case of a man.

Furthermore, it stipulates that the intending partners must have been married for at least five years and be nationals of India. It is also needed that the intending couple has not previously had any children, whether biologically, through adoption, or through surrogacy, who are still living.

e) Right of Surrogate to withdraw Consent (Section 6): Individuals must refrain from pursuing or engaging in surrogacy procedures without fulfilling certain requirements. These requirements include thoroughly informing the surrogate mother about all foreseeable consequences and subsequent outcomes associated with such procedures. Moreover, obtaining written and informed consent from the surrogate mother in a language that she comprehends is crucial. The legislation explicitly states that it grants the surrogate mother the right to revoke her consent for the act of surrogacy before the implantation of the embryo into her uterus.

f) Strict Prohibition to abandon a Child born through Surrogacy (Section 7): It is strictly prohibited to abandon a child born through the procedure of surrogacy, regardless of any reasons such as genetic defects, birth defects, any other medical conditions, the emergence of defects at a later stage, the child's gender, or the occurrence of multiple births for the intended parents, irrespective of whether they are in India or any other location.

g) Child Born through Surrogacy treated as Biological Child (Section 8): The provision affirms that the offspring shall be acknowledged as the intending spouse's biological child and shall receive all the rights and benefits that would typically be granted to a natural child according to the existing laws.

h) Establishment of Boards and Authorities under the Act (Section 17 to 34): To oversee and govern the practice of surrogacy, the law mandates the creation of national and state Surrogacy boards, as well as other relevant authorities. These boards will be responsible for supervising the complete execution of the legislation. The section further outlines the composition, powers and functions of these boards and authorities as outlined in the Act.

i) Prescribes Penal Provisions (Section 38 to 41): It is strictly prohibited for any individual, organization, surrogacy clinic, laboratory, or clinical institution of any kind to partake in commercial surrogacy endeavours. Violations of these provisions are subject to severe consequences, including imprisonment for a maximum period of ten years and a substantial fine of up to ten lakh rupees, as prescribed by the Act. Additionally, the Act categorizes these offences as cognizable, non-bailable, and non-compoundable, leaving no room for leniency or compromise.

What are the concerns regarding the Act?

Despite the Act being implemented with the noble aim of supervising surrogacy and preventing the exploitation of women and surrogates, its provisions, unfortunately, exhibit discrimination towards women. Moreover, there are legitimate concerns that the Act might inadvertently promote the rise of illicit commercial surrogacy. The concerns are:

a) Discrimination against Children with Disabilities: The current legislation unjustly discriminates against children with disabilities as it segregates them from their non-disabled counterparts regarding surrogacy arrangements. Interestingly, while it is illegal for parents without disabled children to engage in surrogacy, the Act explicitly permits parents with disabled children to pursue surrogacy.

b) Excluding certain Individuals from the Definition of Intending Couple/Woman: It is crucial to understand that the term "intending couple" specifically denotes an Indian married couple with a medical need. Furthermore, an Indian woman who is a widow or divorced does not fall into the category of an "intending woman." It reveals that surrogacy is strictly prohibited under the Act for foreigners, homosexual couples, couples cohabitating without being married, and unmarried couples.

c) Provisions are Inconsistent with Fundamental Rights: The specific clauses contained within the Act, exhibit a lack of harmony with the fundamental and inherent rights of individuals. According to Article 13 of the Indian Constitution, fundamental rights hold a significant influence. Article 13(2) explicitly curtails the authority of legislative bodies and other entities responsible for legislation, rendering any law inconsistent with fundamental rights null and void from the very beginning. Moreover, Article 14 of the constitution guarantees equality under the law and equal protection before the law. Consequently, the aforementioned provisions of the act contravene Article 14, as they do not ensure equality.

In addition to this, Article 15 specifies that the state must refrain from discriminating against individuals based on religion, race, caste, gender, or place of birth. Consequently, the provision above demonstrates clear discrimination based on gender.

d) Thrives Commercial Surrogacy Illegally: There are apprehensions that the mere act of banning commercial surrogacy will push the industry into the secretive realm, enabling it to thrive unlawfully.

e) Allows Altruistic Surrogacy but Prohibits Commercial Surrogacy: The presence of altruism in a surrogacy arrangement poses a challenge for the surrogate when trying to distance herself from the child's social environment. Despite the legal requirement that the surrogate mother's decision must be based solely on her voluntary consent, it is inevitable to acknowledge that women in Indian society lack complete autonomy when it comes to making decisions for themselves. Hence it may result in domestic violence against women within the corner of the house.

What are the landmark Supreme Court Rulings?

The Baby Manaji Yamanda v. Union of India, (2008) 13 SCC 518, landmark case marked the formal legalization of commercial surrogacy by the Supreme Court of India. The Court provided a clear definition of commercial surrogacy, stating that it involves compensating a gestational carrier for carrying a child to full term in her womb. The Supreme Court acknowledged the existence of legal loopholes and the unethical practices occurring due to the absence of such laws, referring to surrogacy as a corrupt money-making scheme.

In the landmark judgment, a three-judge bench in the case of Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1, established that the reproductive rights of women encompass their inherent right to fully experience pregnancy, deliver a child, and nurture their children thereafter. Additionally, it was concluded that these rights are an integral component of a woman's right to maintain her privacy, uphold her dignity, and safeguard her bodily autonomy.

In the case of Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, the court expressed the view that a woman's right to decide whether to have a child or terminate her pregnancy is a matter of personal privacy. The court further acknowledged that the importance of marriage, freedom to have children, choosing a family lifestyle, and preserving one's dignity are fundamental to every individual, regardless of their social status or economic situation. The pursuit of happiness is based on the principles of autonomy and dignity, both of which are integral aspects of privacy. Privacy does not discriminate based on the inherent characteristics of different individuals.

What lies ahead?

Surrogacy is a complex web of intricate social, ethical, legal, and technological dilemmas. The issue goes beyond mere legal implications; it demands society as a whole to delve into it as a significant social concern and handle it in a manner that safeguards our ethical values while harnessing the advantages of advancing technology. Governments must factor in the perspectives of relevant stakeholders, as they play a crucial role in formulating appropriate laws. It is imperative to consider the personal experiences of surrogates when developing best practices for surrogacy contracts, aiming to minimize ethical transgressions.

References

[1] Diksha Tekriwal, Lacunae in the Surrogacy (Regulation) Act, 2021, Available Here

[2] Gaurang Narayan, Hara Prasad Mishra, et al., The Surrogacy Regulation Act of 2021: A Right Step Towards an Egalitarian and Inclusive Society?, Available Here

[3] Paramjit S. Jaswal and Jasdeep Kaur, Surrogate Motherhood in India: An Analysis of Surrogacy (Regulation) Act, 2021, Available Here

[4] Ramya Kannan, The debates around the Surrogacy Act, Available Here

[5] The Surrogacy (Regulation) Act, 2021, Available Here