Reproductive Autonomy and the Impact of Carceral Feminism on Surrogacy Laws
Kajal Kapte
College- Benaras Hindu University
Editor- Subhra Dan
01. INTRODUCTION
The surrogacy industry in India is estimated at around 400 million dollars per year and has witnessed the emergence of over 3000 fertility clinics all over the country. The Surrogacy (Regulation) Bill, 2019 (“the Bill”) was passed by the Lok Sabha on 5th August 2019. The Bill bans commercial surrogacy and permits only altruistic surrogacy i.e., surrogacy with no monetar compensation apart from coverage of medical and insurance related expenses of the surrogate mother. Subsequently, the Rajya Sabha, on 21st November 2019, referred the Bill to a Select Committee which submitted their report on 3 February 2020 (“Select Committee Report”). The 228th Law Commission Report also recommended banning commercial surrogacy and allowing only the altruistic model of surrogacy. Earlier,
the 2016 version of the Bill had been considered by the 102ND Department-related Parliamentary Standing Committee on Health and Family Welfare that submitted its report on 10th August 2017 (“Parliamentary Committee Report”). In 2002, the Indian Council of Medical Research (ICMR) had laid down guidelines for surrogacy, which made the practice legal, but did not give it legislative backing. The Bill has raised a number of constitutional, socio-economic, legal, and women’s rights concerns.
In this article, a detailed analysis of the Bill is presented with special focus on the aspect of constitutionality. The article examines these issues applying the jurisprudence developed through numerous precedents on the subject, in the context of reasoning furnished by the
abovementioned committee reports which give conflicting recommendations on various key provisions of the Bill. The ethical and moral debate on the act of surrogacy itself is outside of the purview of this article. The Surrogacy (Regulation) Act, 2021, while intending to address exploitation in surrogacy, has been criticized for potentially infringing upon reproductive autonomy and potentially exhibiting carceral feminist tendencies. This critique focuses on how the law, by restricting who can access surrogacy and by banning commercial surrogacy, limits women’s reproductive choices and economic opportunities while potentially reinforcing patriarchal structures.
02. MEANING AND TYPE
Surrogacy has been the vogue in the country for more than 12 years. The purpose of the bill is to affirm effective regulation of Surrogacy, prohibit commercial surrogacy, and allows ethical surrogacy. And it will also prevent the exploitation of surrogate mothers and children born through surrogacy. Although the bill was made with the intension of preventing this exploitation, but some of the clauses do not in consonance with the Constitutional Provisions. As the Bill fails to pass the “Golden Triangle” test laid down by the Supreme Court which inspects the constitutional validity of the laws enacted by the Government. This test checks the equality, liberty, and freedom of rights, it aims is to ensure that the basic fundamental rights of individuals are not encroached upon by the State.
Types of Surrogacy: There are four types of surrogacy which are followings;
1. Traditional Surrogacy- In Traditional Surrogacy. The intended father or a sperm donor artificially inseminates the surrogate mother in traditional surrogacy. She is the child's biological mother because the surrogate used her own eggs. The child's genetic ties to the surrogate mother and intended father or sperm donor are thus established. However,when the surrogate mother gives up her parental rights, the intended parents must assume custody of the child.
2. Gestational Surrogacy- In this type of surrogacy, an embryo is produced using the in vitro fertilisation procedure (IVF). The intended couple's eggs and sperm or those from a donor are utilised in the IVF process. The surrogate mother's uterus receives the embryo after it has been created. In this instance, the biological mother is not the surrogate. Genetically,the child is connected to the individuals who donated their sperm and eggs.
3. Commercial surrogacy- When the surrogate mother receives payment in addition to insurance from the intended parents and payment for the costs associated with carrying the child, the procedure is known as commercial surrogacy. It also covers the procurement and exchange of human embryos for surrogacy. Additionally, it covers the purchasing and selling of human embryos for surrogacy.
4. Altruistic surrogacy- This kind of surrogacy takes place when the surrogate mother conceives a child for the intended parents without receiving any payment aside from medical expenses and other required expenses. For carrying the child, she is also covered by insurance. A close friend or family member will typically carry it out. Usually, a close friend or member of the family will carry it out.
Key Features of the Surrogacy Regulation Act:
This analysis provides an overview of the key provisions and implications of the Surrogacy (Regulation) Act, 2021.
1. Avoiding Commercialization: The Act's main goal is to forbid commercial surrogacy and stop the commodification of women's bodies. This clause guarantees that surrogacy is not carried out for financial benefit and guards against the exploitation of weak women.
2. Eligibility and Requirements: The Act specifies a number of requirements and eligibility standards for intended parents, surrogate mothers, and other parties participating in the surrogacy process. Couples wishing to apply must be at least five years into their marriage and be childless. A "certificate of eligibility" and a "certificate of essentiality" issued by the proper authority should also be in their possession. Surrogate mothers must be married, have their own kid, and be a close relative of the intended parents. While protecting the interests of all parties involved, these laws seek to regulate and streamline the surrogacy procedure.
3. National Surrogacy Board and State Surrogacy Boards: The Act creates both State Surrogacy Boards and a National Surrogacy Board at the state and federal levels. These boards are in charge of approving, suspending, or revoke surrogacy clinic licences. They also act as regulatory organisations to monitor how the Act is being applied and to resolve any complaints or disagreements that may come up. By establishing these bodies, effective regulation of surrogacy is monitored and enforced.
4. Establishment of the National Assisted Reproductive Technology and Surrogacy Registry: Under Section 9 of the Act, calls for the creation of the National Assisted Reproductive Technology and Surrogacy Registry, which will serve as a national database for all ART clinics and banks under section 11 of The Surrogacy Act.
5. Designation of the Appropriate Assisted Reproductive Technology and Surrogacy Authority: Section 12 of the Act stipulates the appointment of one or more Appropriate Assisted Reproductive Technology and Surrogacy Authorities for the States and Union territories to grant, suspend, or cancel registration of an ART clinic or bank and to take the necessary legal action against anyone who uses assisted reproductive technology inappropriately under Section 13.
6. The following rights and obligations: The Act recognises the rights and obligations of intended parents, surrogate mothers, and the children born through surrogacy. It places a strong emphasis on safeguarding the surrogate mother's physical and mental health, outlawing her exploitation, and ensuring that she receives the necessary medical care and financial support. The Act also protects a child's right to inheritance, identity, and a safe and caring environment. These clauses set the child's best interests as their first priority and offer a legal foundation for protecting their rights.
7. Genetic Testing: According to Section 25 of the Act, pre-immunization genetic testing must be done to check the human embryo for known, inherited, hereditary, or genetic illnesses. This clause is required and also mandatory provision.
8. Penal Provision and Offenses: The Act imposes stringent penalties for violations, offenses, and non-compliance with its provisions. Engaging in commercial surrogacy, advertising for surrogacy, or exploiting surrogate mothers can result in imprisonment and fines. These penalties act as deterrents and discourage illegal practices in the surrogacy industry.
04. BACKGROUND
India has experienced phenomenal growth in the use of assisted reproductive technologies (ART) and particularly surrogacy. During the first decade of the twenty-first century, the country first had its tryst with surrogacy. With $500 million in revenue, reproductive tourism in India has helped transform the country into a “global baby factory” with its liberal approach to surrogacy, offering a safe haven to couples seeking domestic or transnational surrogacy services (Krawiec 2009; Twine 2015; Kumar 2019). Surrogacy as business process outsourcing has grown due to a plentiful supply of low-cost labor, lax legislation, English-speaking medical practitioners, and cutting-edge medical facilities. In India, one also finds competent hospitals, and expectant mothers who would deliver children at a fraction of the price that their counterparts in wealthy nations would demand. However, as the surrogacy industry grew, concerns relating to exploitation of women, commodification of motherhood, and human rights violations also emerged. The surrogacy issue became widely publicized in 2008 when “Baby Manji Yamada v. Union of India (2008) (13) SCC 518” and “Jan Balaz v. Anand Municipality and others (Gujarat High Court 2009)”1 exposed ethical concerns regarding paternity, citizenship, and other issues. In the past decade, an increasing number of studies have investigated the ethical and legal repercussions of a lack of autonomy, agency, and informed consent arising from the unrestrained commercial use of surrogacy in international trade (Gola 2021; Jaiswal 2012; Pande 2009; Tanderup et al. 2015).
In this regard, the court drew attention to a deficiency in the regulatory framework and remarked that “in India there is no law prohibiting artificial insemination, egg donation, lending a womb or surrogacy agreements” (Srivastava 2021, 7). Furthermore, the court concluded, “in the present legal framework, [we] have no other choice but to hold that the babies born in India to the gestational surrogate are citizens of this country” (Srivastava 2021, 8) despite the fact that both intending parents were foreign nationals.
05. SURROGACY IN INDIA
Major lifestyle changes among humans and the poor conditions of way of life has led to an increase in many diseases and health issues, one of the most common being that of becoming infertile thus increasing a demand in artificial ways to conceive. At the same time with the acceptance of same sex marriages/union and the recognition of the basic human right to have family and children has given rise to surrogacy manifold. With the recent growth in the Intended parents opting for surrogacy here, India has become the much sought-after surrogacy destination. Although there are other options for people to become parents such as adoption – surrogacy has however, become a popular choice for intended parents for various reasons:
1. Through surrogacy even though the womb is someone else’s the genetic material of one or both parents will be present in the unborn child .
2. A part from being genetically linked the parents will also be able to anticipate and if need be mitigate any genetic diseases or other health issues based on their family history.
3. The stigma of adoption will never be put on the child/children or on the parents.
4. The intended parents will have all the information they need about the surrogate including her medical, financial and family .
5. Legal issues tend to crop up during the process of adoption whereas contracts are made and signed beforehand in case of surrogacy thereby bypassing many legal issues from the start over the years there have been many cases where Indian women have agreed to become surrogates for reason that vary from person to person.
06. LEGAL ASPECT OF SURROGACY IN INDIA
As with many other upcoming or developing industries, laws regulating the growing medical industry specially in respect of Assisted Reproductive Technology (ART), surrogacy etc, are in their nascent period. It was only in 2005
the Indian Council of Medical Research (ICMR) under the Ministry of Health and Family Welfare decided the National Guidelines for accreditation, supervision and regulation of Assisted Reproductive Technology (ART) in India. It was not drafted with surrogacy in mind exclusively rather it contained guidelines that were to be followed by ART Clinics in terms of carrying out all surrogacy procedures. Under these guidelines there was no legal bar on a single or unmarried woman from using ART and children borne would have legal rights on the woman or man concerned.
These guidelines however, were solely advisory and not legally binding.
When the Law Commission realised that there was a need for legislation to regulate the ART clinics and to codify the rights and duties of the parties involved, it took Suo Moto action and dealt with surrogacy in its 228th Law Report under the chairmanship of Dr. Justice A.R. Lakshmanan in 2009 and in 2013 the draft for ART (Regulation) Bill was made on the basis of revisions made by the Ministry of Law and Justice.
The timeline of event leading up to the current 2020 Bill being drafted regarding surrogacy laws:
• In 2008 the ART Bill was initially drafted but not presented before the Parliament.
• In 2009 the 228th Law Commission report on the need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy was submitted to the Ministry or Law and Justice.
• In 2010, the Law Commission’s Report a new Bill was formulated Several modifications were made in 2013 and 2014.
• In 2016 The Surrogacy (Regulation) Bill was introduced and passed by the Lok Sabha in 2018. It was however, not placed before the Rajya Sabha.
• In 2019 the bill was reintroduced in the Lok Sabha under the title “Surrogacy (Regulation) Bill, 2019 and was passed in 2019.
• In 2020 the Union Cabinet approved the Bill after considering the changes suggested by the Rajya Sabha.
07. SURROGACY UNDER THE INDIAN CONSTITUTION
Under the Indian Constitution, various fundamental rights, including the Right to Life, Personal Liberty, and Privacy (Article 21), are relevant when considering the legal framework for surrogacy. This article explores the constitutional aspects of surrogacy in India, focusing on the rights of women and the need for effective regulation.
CONSTITUTIONAL RIGHTS AND SURROGACY
1. Right to Life and Personal Liberty (Article 21):
Article 21 of the Indian Constitution guarantees every person the right to life and personal liberty. This right has been expansively interpreted by the judiciary to encompass a wide range of freedoms and entitlements.
In the context of surrogacy, the right to life includes the right to make choices about one's reproductive health and family life. It implies that individuals have the autonomy to decide whether to opt for surrogacy as a means to have a child.
The concept of personal liberty extends to the right to privacy and dignity, which are closely linked to reproductive choices. Surrogacy, as a reproductive option, should be protected as a matter of personal liberty, free from unwarranted interference.
2. Right to Earn a Living:
While the Indian Constitution does not explicitly mention the right to earn a living as a fundamental right, it is a natural extension of the right to life and personal liberty.
Surrogacy, especially when seen as a form of economic labor, implicates a woman's right to earn a livelihood. For many surrogate mothers, participating in surrogacy may provide financial stability and opportunities for their families.
08. LEGAL BASIS FOR SURROGACY IN INDIA
Article 16.1 of the Universal Declaration of Human Rights 1948 states that all men and women, without limitations based on race, nationality, or religion, have the right to marry and establish a family.
The Indian judiciary recognizes reproductive rights as fundamental.
In B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High Court upheld an individual's reproductive autonomy as part of the right to privacy. It concurred with the US Supreme Court in Jack T. Skinner v. State of Oklahoma, which recognized the right to reproduce as a basic civil right.
In Javed v. State of Haryana, although the Supreme Court upheld the two-child norm for Panchayati Raj elections, it refrained from denying the right to procreation as a fundamental human right.
REPRODUCTIVE CHOICES:
The right to reproductive choices is an essential facet of personal liberty. It encompasses the right to decide whether to have children, when to have them, and how to have them.
Surrogacy is one of the methods that individuals or couples may choose to exercise their reproductive rights. Restricting access to surrogacy without a compelling reason could be seen as an infringement on these rights.
REPRODUCTIVE AUTONOMY:
Reproductive autonomy refers to an individual's right to make decisions about their own reproductive health and family planning, free from coercion or interference.
The High Court of Andhra Pradesh, in the case of B.K. Parthasarathi v. Government of Andhra Pradesh, recognized the concept of reproductive autonomy as a fundamental right. This decision reaffirms the importance of an individual's ability to make choices regarding surrogacy.
09. LANDMARK CASES INVOLVING SURROGACY IN INDIA
1. Baby Manjhi Yamada v. UOI (2008)
One of the first cases to come to light regarding surrogacy, where a Japanese couple entered into a contract with an Indian woman to be the surrogate mother for their child. However, there were marital discord between the couple. After the baby was born, the commissioning father Mr. Yamada tried to take his child to Japan for which he applied for visa to Japan. The embassy of Japan in India denied as the Japan civil code did not grant the surrogate child. Mr. Yamada tried to file for Indian visa which requires a birth certificate. The name of the Father and Mother of the child must be there in the birth certificate, but in this case Mr. Yamada was the genetic father of the baby while ambiguity arose in the case of the mother there were three mothers for that child – the commissioning mother, the egg donor and the surrogate mother. Seeing this, authorities refused to give visa to the child as the legal mother was not certain. In the end the Apex court of India had to intercede and the child Manji was allowed to leave the country with her grandmother.
This is considered to be a landmark case as it was in this case that the Supreme Court of India held that surrogacy would be permissible in India, thereby opening the doors for couples to approach India more often for surrogacy procedures.
2. Jan Balaz V. Anand Municipality & Ors (2008)
In this case a childless German couple had twins through the surrogate mother with the help of Anand Infertility Clinic Gujarat. Since the German laws did not recognise the surrogacy as a means of parenthood, twins were not treated to be the German citizens. The German commissioning parents, to avoid the foreseeable hurdle of the Immigration laws, approached the High court of Gujarat to authorise their surrogate twins with Indian Passports. The High Court held that a child born through the surrogate mother will carry the name of the surrogate mother not of the biological mother and the child should be authorized with the Indian Passport and certify him as the Indian citizen. As a result, the surrogate mother in turn had to give the child to the German couple via adoption.
3. Suchita Srivastava v. Chandigarh Administration (2009)
The Court has acknowledged that a woman’s reproductive decisions are an essential component of her personal liberty under article 21. But by restricting access to LGBTQ+ people and single men and only requiring altruistic surrogacy, the law denies them the ability to make very personal choices about becoming parents. The Court’s affirmed values of autonomy and dignity are violated by this restriction.
4. K.S Puttaswamy v. Union of India (2018)
The Supreme Court has upheld that the freedom to make one’s own decisions regarding one’s body and reproductive options is part of the basic right to privacy guaranteed by Article 21. However, this autonomy is taken away when commercial surrogacy is prohibited and surrogacy is restricted to specific groups, depriving people of the freedom to choose how they wish to start their families. These restrictions contradict the Court’s recognition of the fundamental nature of individual liberty and dignity.
5. Navtej Singh Johar v. Union of India
The ruling upheld the fundamental rights of LGBTQ+ people under Article 21 and decriminalized Section 377 of the IPC, marking a significant advancement toward equality. An important achievement for individual liberty was achieved when the Supreme Court maintained their right to privacy, dignity, and the ability to build relationships. This development is countered by the Surrogacy (Regulation) Act, 2021, which limits surrogacy to married heterosexual couples solely, denying LGBTQ+ people and single parents the opportunity to become parents. By ignoring the Courtrecognized fundamental rights, this exclusion perpetuates discrimination. In addition to the wider ramifications of denying people the chance to start a family on their own terms, brings up important issues regarding equality and reproductive autonomy.
Another case was that of an Israeli gay couple coming to India in order to become parents with the help of a surrogate mother. As per Israeli laws they had to conduct a DNA test to prove their paternity and only then was the child’s passport and other documents were cleared.
Because of the above cases the surrogacy bill coming into existence as a consequence. As has been mentioned before, although the concept of a surrogacy may have been introduced in 2008 but it was not before 2016 that a Surrogacy Bill was drafted. The Union Cabinet approved the Surrogacy Regulation Bill in 2016 allowing only Indian married infertile couples to avail surrogacy services. 24 This Bill was passed by the Union Cabinet in 2019 as Surrogacy (Regulation) Bill, 2019.
10. SURROGACY (REGULATION) BILL 2019
One of the most important changes brought about by the 2019 Bill was the absolute restriction on commercial surrogacy that had not only been rampant but legal ever since the 2002 draft of the ART Guidelines that had been approved by the government in 2005.
The 2019 Bill:
• promoted altruistic surrogacy whereby the surrogacy would be performed by a woman who is a close relative of the intended parents.
• prohibited foreign nationals from availing surrogacy services in India.
• sought to restrict surrogacy services to a married couple to the exclusion of
• unmarried/single persons and persons in live-in relationships.
There were however, inadequacies in the Bill:
• impinged upon the rights of equality and right to life of single persons, LGBTQIA+ persons and those in live-in relationships while there is no such restriction on them when it comes to adoption the term ‘close relative’ when conferring to the surrogate mother was not given any parameters thereby making it possible to still carry out commercial surrogacy in the garb of altruistic surrogacy. Changes were suggested by a 23 member Select Committee of the Rajya Sabha which was approved by the Union Cabinet in 2020 thus giving rise to the Surrogacy (Regulation) Bill 2020.
11.THE SURROGACY (REGULATION) BILL 2020:
The 2020 Bill contained major changes:
• Promoted only altruistic surrogacy.
• Allowed a willing woman to be a surrogate mother
• Reduced the term of infertility from 5 years to 1 year
• Established National and State Surrogacy Board to regulate and monitor surrogacy.
• Certificates of essentiality and eligibility mandatory for couples
• Covered live-in persons, divorced, widowed, NRI, Person of India Origins, Overseas Citizenship of India. This Bill also however, had lacunae that needed to be rectified:
• Rights of unmarried or single women and LGBTQIA+ were denied thereby infringing their right to equality (Art. 14)28 and right to life (Article 21).
• Did not cover the financial constraints of poverty-stricken women resorting to provide surrogacy services to survive thereby infringing their livelihood under Art. 21.
• Loss suffered by surrogate other in terms of their wages, suffering, death etc not covered
• No time limit of certificates given
• Provided for consent of surrogate mother for abortion but did not cover the consent of the intending parents’ consent leading to surrogate mothers taking advantage.
In the backdrop of all this the Parliament, in December 2021, passed the Assisted Reproductive Technology (Regulation) Act, 2021 with the aim of regulating and supervising ART clinics, ART banks, prevention of misuse and safe and ethical practices of this service.
The Surrogacy (Regulation)Act, 2021 was passed and came into effect on 25th January 2022. The 2021 Act however, still suffered from the abovementioned controversies.
12. COMMERCIAL SURROGACY
A point of controversy when it comes to surrogacy, and its implementation and regulation is that of commercial surrogacy. It was in 2002 that commercial surrogacy was legalised in India by the Apex Court in the case of Baby Manji Yamada where the child conceived through commercial surrogacy was not only given to her father but was allowed to go back to Japan with her grandmother. The decision created a pathway for promotion for India’s medical tourism thereby making India the “hub of surrogacy”. Although it was legalised, the business of surrogacy was by and large unregulated. Undue advantage was being taken of this loophole by many. Unethical practices became rampant.
Due to a lack of any legal parameters or regulatory laws, the parties could not be aware of the legal necessities. This goes for both the parties if one side is a foreign national and thereby unaware of the laws or the existence of it and the other side is uneducated thereby at a disadvantage. There was no proper procedural mechanism due to which a lot of fake surrogacy agreement documents were possible to make. It was difficult to find a middle way when it came to commissioning parents being foreign nationals specially from countries that did not recognise surrogacy or surrogate children. Apart from this there was no real remedy available if there was any breach of contract from either side.
Women who were surrogates were not treated well; they were exploited beyond capacity. They were forced into bad living conditions, unhealthy or nutrient deficit food, next to no medical treatments, and were given the barest of payment by the agencies and middle men all in the name of the latter making profits out of this business. Low nutrition as a result led to the child to be born malnourished and sickly. No regard was given to either the mother or the child. This opened up a possibility of many of these children being rejected – by the commissioning parents as well as the surrogate – leaving them to vulnerable to other forms of corrupt practices.
Child traffickers also got an opportunity to get children at a minimal amount or free of cost. Other corrupt agencies also found a way to misuse this service in order to make their own profits. In the garb of surrogacy services, they began running organ trafficking rackets, exportin/importing embryos, etc.
However, it was not before 2015 that the government of India completely banned commercial surrogacy from its country. This ban has finally been codified in the form of the Surrogacy (Regulation) Act, 2021 whereby only altruistic surrogacy has been made mandatory.
13. THE SURROGACY (REGULATION) ACT, 2021
Has recently come into the limelight even more not only because of its recent codification but also due to certain events that have taken place. Even though theirs was more a debate mired in conservatism and ignorance it however shed light on many other cases where the public has face difficulty in becoming parents simply because the current law does not allow it.
The Surrogacy Regulation Act of 2021 introduced a comprehensive legal framework to govern surrogacy in India. It establishes eligibility criteria for couples, surrogate mothers, and addresses issues related to commercialization.
Eligibility Criteria for Couples:
• Age: Commissioning parents (the couple seeking surrogacy) must be between 25 and 50 years old.
• No previous child: The couple should not have had a child through natural conception, adoption, or surrogacy.
• Medical and Radiological Reports: The couple must provide clear medical and radiological reports, including genetic anomaly screenings.
• Insurance: An insurance policy covering the surrogate mother's medical needs for 36 months from embryo transfer is mandatory.
• Essentiality Certificate: After validation by a government medical board, the couple receives an essentiality certificate.
• Judicial Approval: The certificate must be submitted to a first-class judicial magistrate to obtain an order, serving as proof of the child's birth.
Eligibility Criteria for Surrogate Mothers:
• Age: Surrogate mothers must be between 25 and 35 years old.
• Married with a child: They should be married and have at least one child of their own.
• First-time surrogate: The surrogate should be a first-time surrogate.
• Mental Fitness: A psychiatrist must certify the surrogate as mentally fit.
Additional Regulations:
• Aadhaar cards: The surrogate, the couple, and the child must have linked Aadhaar cards to ensure traceability.
• Embryo Genetic Connection: The law requires the embryo to be genetically related to at least one member of the commissioning couple.
• Embryo Donation: Surrogacy does not allow for embryo donation.
• Divorcees and Widows: Divorced or widowed women aged 35 to 45 can offer their eggs for surrogacy.
• Non-Recognition of Citizenship: Children born to Indian couples using surrogacy outside the country will not be recognized as Indian citizens.
• Divorcees and Widows: Divorced or widowed women aged 35 to 45 can offer their eggs for surrogacy.
• Non-Recognition of Citizenship: Children born to Indian couples using surrogacy outside the country will not be recognized as Indian citizens.
• Responsibility in Case of Parental Death: If the commissioning couple dies before the child's birth, the nominated individuals in the surrogacy contract must raise the child. Later, they can choose to give up the child for adoption or to an orphanage.
• Right to Information: Children born through surrogacy have the right to know their origins when they turn 18 and can trace the identity of the surrogate mother.
14. ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT 2021
The Assisted Reproductive Technology(ART) (Regulation) Bill 2020 (ART Bill 2020) which seeks to provide for the regulation of Assisted Reproductive Technology services in the country, was introduced in Lok Sabha on 14
September 2020. Similar to the Surrogacy Bill 2020, The ART Bill 2020 was also referred to a Department-Related Parliamentary Standing Committee on Health and Family Welfare on 3 October 2020 (Standing Committee). The said Standing Committee presented the report on ART Bill before Rajya Sabha and Lok Sabha on the same day, i.e., 19 March 2021, wherein they gave suggestions on how to make the ART Bill more comprehensive.
Recognizing the possibility of numerous commercial and profit inducing activities being run through these clinics, several offenses were laid down, for instance sex selection (Section 26), abandoning, or exploiting children born through ART, selling, purchasing, trading, or importing human embryos or gametes, transferring the human embryo into a male or an animal, (Section 33) etc. These offences are punishable with a fine between 5 and 10 lakh Rupees for the first contravention.
Thereafter, the ART (Regulation) Bill 2021 was notified as ART (Regulation) Act, 2021 on 25 January 2022. The Act further disallows any kind of advertisement. For instance, for the said purpose the website may contain a disclaimer that the law does not permit advertisement of any manner regarding facilities of sex selective assisted reproductive technology and that by accessing the website, the person doing so acknowledges and confirms that they are only seeking information of their own accord and that there has been no form of advertisement or inducement, regarding facilities of sex selective assisted reproductive technology.
15. DRAWBACKS OF THE SURRGOACY REGULATION ACT, 2021
Though surrogacy regulation act, 2021 is to prevent exploitation in surrogacy practices it has certain drawbacks which make the act quite restrictive and impractical in many aspects. The following are the drawbacks of the act,
1. Only altruistic surrogacy is allowed by the Act, although it can be challenging to obtain surrogates for altruistic surrogacy on a regular basis.
2. Due to the negative effects on surrogate mothers, the Act forbade commercial surrogacy, nevertheless, it also eliminated the opportunity for underprivileged women to earn money by serving as surrogates.
3. The legislation forbids leaving a surrogate child abandoned, but it makes no provision of what to do if the intended parents decline to take custody because of unforeseen medical issues.
4. The Act necessitates several approvals and rigorous documentation, which prolongs the process and adds to bureaucratic hold-ups.
5. If an altruistic surrogacy agreement is being secretly monetized through indirect payments, there is no reliable way to find out.
6. Doctors and clinics may be discouraged from providing surrogacy services by the severe penalties, which include hefty fines and lengthy prison sentences, out of concern for possible legal consequences.
7. The Act neglects surrogate mothers’ long-term wellbeing by not requiring them to receive financial or psychological help following childbirth.
8. The language of the Act excludes unmarried or living together partners and limits access to services solely to lawfully married couples within specific age ranges. The institution of marriage is favored by this.
9. The law is discriminatory and restrictive since it prohibits foreign nationals, LGBTQ+ people, and single men from choosing surrogacy.
10. Authorities may make arbitrary choices that lead to inconsistencies since the law is unclear about what medical need is for surrogacy.
16. CHALLENGES AND CONCERNS IN THE SURROGACY
While the Surrogacy Regulation Act of 2021 represents a significant step towards regulating surrogacy in India and addressing ethical concerns, it also presents challenges and concerns that need to be addressed.
1.Exclusion of LGBTQIA+ Community:
The Surrogacy Regulation Act of 2021 has raised significant concerns regarding its exclusionary approach towards the LGBTQIA+ community. The Act prohibits homosexual couples from availing altruistic surrogacy services. This exclusion has sparked debates about discrimination and inconsistency with principles of equality and human rights.
Navtej Singh Johar v. The Union of India: In the landmark judgment of Navtej Singh Johar v. The Union of India, the Supreme Court of India declared Section 377 of the Indian Penal Code unconstitutional. This ruling decriminalized homosexuality and recognized the rights of LGBTQIA+ individuals. The Act's exclusion of homosexual couples from surrogacy contradicts the principles established in this case, as it denies them equal access to surrogacy as a means of biological parenthood.
2. Exclusion of Live-In Relationships:
Another pressing concern is the Act's failure to include live-in partners within its regulatory scope. Live-in relationships have been recognized and protected by Indian courts as valid partnerships, and couples in such relationships often raise families together. The Act's exclusion of live-in partners from surrogacy arrangements raises questions about equal access to surrogacy for various sections of society.
S. Khushboo v. Kanniammal: In the case of S. Khushboo v. Kanniammal, the Supreme Court of India ruled that live-in relationships are covered and protected by Article 21 (right to life). This decision affirmed the legal validity of live-in partnerships. The Act's omission of live-in partners from its ambit appears inconsistent with the judicial recognition of these relationships and may be considered discriminatory.
3. Potential Impact on Surrogacy Industry:
The Act imposes a ban on commercial surrogacy and the export of embryos. While these measures aim to prevent the exploitation of surrogate mothers and safeguard ethical surrogacy practices, they also raise concerns about the impact on the surrogacy industry's viability and accessibility.
• Commercial Surrogacy
• Export of Embryos
• Surrogacy in India presents complex legal, ethical, and constitutional issues.
17. CONCLUSION
Surrogacy regulation act, 2021 is a significant legislation aimed at preventing surrogate mothers from abuse and stopping the commercialization of surrogacy in India is the Surrogacy (Regulation) Act, 2021. However, it has certain drawbacks which make the act impractical and quite ineffective to implement. But, ultimately, the aim should be to create a legal framework that upholds the principles of compassion, fairness, and respect, ensuring that surrogacy remains a viable option for those in need while safeguarding the rights and well-being of all individuals involved. A revised and more inclusive approach to the surrogacy regulation would make it more practical and effective and it will also prevent violations of Indian constitutional values of equality, personal liberty, and reproductive choice ensuring that surrogacy remains a safe and better reproductive option for everyone out there.
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