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  • Nidhi Dutia

Decoding Surrogacy in India: A Legal Perspective

Updated: Feb 12

Nidhi Dutia,

Bharati Vidyapeeth, New Law College, Pune

DECODING SURROGACY IN INDIA

INTRODUCTION

Surrogacy is a legal agreement between parents who want to conceive a child and a surrogate mother. Surrogacy is widely acceptable in Indian society, and it is mentioned in ancient works such as the Mahabharata. Most commonly, surrogacy is sought due to physical risks or dangers to the prospective mother's body.

For example, a woman who has undergone a hysterectomy (uterine removal) is unable to carry a pregnancy, yet she may still wish to have a biological child. In such circumstances, a surrogate mother may carry a fertilized embryo made from the woman's egg and her partner's sperm.

DEFINITIONS

The term 'surrogate' comes from the Latin word 'surrogatus,' which means a substitute or someone designated to act on behalf of another person.

According to the Black's Law Dictionary, surrogacy is the process of carrying and delivering a child for another person.[i] 

The Britannica[ii] defines ‘surrogate motherhood’ as

“the practice in which a woman bears a child for a couple unable to produce children in the usual way…”

A standard definition of ‘surrogacy’ is offered by the American Law Reports[iii] in the following manner:

“…a contractual undertaking whereby the natural or surrogate mother, for a fee, agrees to conceive a child through artificial insemination with the sperm of the natural father, to bear and deliver the child to the natural father, and to terminate all of her parental rights subsequent to the child's birth.”

TYPES OF SURROGACIES

There are two types of surrogacy practices in India:

(i)              Traditional/natural/partial surrogacy

●      Traditional surrogacy, sometimes referred to as "straight surrogacy," is a procedure th at commences with artificial or natural insemination and lasts until delivery.

●      Indian law has not yet given traditional surrogacy any legal standing.

●      This effectively means that India forbids the custom of traditional surrogacy. In actuality, it is forbidden.

(ii)            Gestational surrogacy

●      The procedure is finished when the embryo is created by IVF (in vitro fertilization) technology and placed into the surrogate.

●      In 1986, the first case of gestational surrogacy—also known as host surrogacy—occurred.[iv]

(iii)          Altruistic surrogacy

●      This type of surrogacy takes place when the surrogate mother gets no money in exchange for carrying the kid to her biological parents, except for necessary medical expenses.

(iv)           Commercial surrogacy

●      This occurs when the surrogate mother receives compensation that exceeds the required medical costs.

●      Any type of commercial surrogacy is forbidden by gynecologists', embryologists, surrogacy clinics, and other medical professionals.

●      The 2021 Act restricts surrogacy to acts of altruism.

THE SURROGACY REGULATION ACT, 2021[v]

This Bill was approved in early December 2021. The Act's essential characteristics include the following:

●      All clinics that provide surrogacy treatment and services must be registered under this Act, and the personnel who work in those clinics must meet the criteria outlined in the bill.

●      Any facility engaging in surrogacy procedures is required to register within sixty days of the appointment of the competent authority, and the registration must be renewed every three years.

●      For a woman to become a surrogate mother, she must be between the ages of 35 and 45, and she is allowed to be a surrogate only once in her lifetime.

●      The prospective couple must be legally married under Indian law and meet specific age criteria: the female should be between 25 and 50 years old, while the male should be between 26 and 55 years old. Additionally, they should not have any other adopted or biological children through surrogacy or natural conception.

●      The National/State Assisted Reproductive Technology and Surrogacy Board must give a ‘Certificate of Essentiality/Infertility’ to an intended couple who has a medical need for surrogacy.

●      The surrogate mother must be informed of all known harmful effects and consequences of the surgery. Furthermore, the surrogate mother must offer written informed consent in the language she is aware of.

●      According to this Bill, a Registry called the National Assisted Reproductive Technology will be established to handle the registration of clinics that provide surrogacy therapy.

●      The law allows any couple who obtains a kid through commercial surrogacy may face a fine of up to 50,000 rupees and a 5-year prison sentence. Furthermore, if the same offense is done many times, the fine will increase to 1 lakh rupees and the prison sentence to 10 years. Any individual, company, or clinic found to be involved in the exploitation of surrogate mothers or children born through surrogacy faces a maximum sentence of ten years in prison and a Rs. 10 lakhs fine.

THE SURROGACY REGULATION RULES, 2022[vi]

The Surrogacy Regulation Rules, 2022, which set forth the fundamental specifications and guidelines for licensed surrogacy clinics, were announced by the national government.

●       Surrogacy clinics must register with the appropriate authority and pay the necessary costs. Additional personnel may be hired from ART Level 2 clinics.

●       At least one gynaecologist, anaesthetist, embryologist, and counsellor must work in these clinics. The gynaecologist must possess a postgraduate degree in gynaecology and obstetrics and previous experience performing ART surgeries.

●       The applicant has the right to appeal within 30 days using the approved appeal form if their application is denied, cancelled, or suspended.

●       Upon approval, a certificate of registration is granted, which needs to be prominently displayed within the clinic premises.

●       As long as no stored gametes or embryos are harmed, authorized entities are permitted to conduct surprise inspections of surrogacy clinics, including their facilities, furnishings, and records.

●       The number of surrogacy attempts is restricted to three. The surrogacy procedure requires the surrogate mother's voluntary consent, as specified in the guidelines.

●       The gynaecologist will usually implant a single embryo, but in dire circumstances, three embryos may be approved.

●       The prospective couple or woman must have health insurance that covers the surrogate mother for 36 months.

●       If the surrogate mother wishes to terminate the pregnancy, she must follow the guidelines outlined in the Medical Termination of Pregnancy Act of 1971[vii].

JUDGEMENTS

Jan Balaz v. Anand Municipality[viii]:

This is a significant case in Indian surrogacy legislation. In 2008, the Petitioner, a German national, engaged in a surrogacy agreement with an Indian woman to have a child. The child was born in Gujarat, India, and the Petitioner secured a birth certificate for them. However, when the Petitioner attempted to leave India with the child, he was stopped by authorities. The petitioner filed a plea with the Gujarat High Court for permission to leave India with the child.

The Court first rejected the case, citing worries about the child's well-being and the legality of commercial surrogacy in India. However, the court ultimately allowed the Petitioner to depart with the child, subject to specific conditions. The case highlighted the issue of commercial surrogacy in India, as well as the need for clearer laws and regulations governing surrogacy arrangements. It also emphasized the importance of ensuring the safety and well-being of children born through surrogacy arrangements.

Baby Manji Yamada v. Union of India[ix]:

In this case, a surrogate child was born to a Japanese couple via an Indian surrogate mother. The couple eventually divorced, and the mother refused to take custody of the child, while the father was unable to secure a visa to visit India and collect the child.

The case raised problems concerning surrogate children's legal status and rights, as well as the responsibility of surrogacy clinics and intended parents.

Finally, the Supreme Court authorized the Japanese consulate in India to give travel permits for the kid so that she may be brought to Japan, and it urged that the Indian government establish legislation governing surrogacy in India.

CONCLUSION

In India, surrogacy is a legal agreement between parents and a surrogate mother. The Surrogacy Regulation Act, 2021, and the Surrogacy Regulation Rules, 2022 provide guidelines for surrogacy clinics and intended parents. Courts have emphasized the need for clearer laws on surrogacy and protecting the well-being and rights of children born through surrogacy. By focusing on inclusivity, ethics, and medical advancements, India can create strong laws for surrogacy that respect everyone's rights, ensure the well-being of all involved, and support those using assisted reproductive technologies to start families.

REFERENCES

[i] Oliphant RE. New York: Aspen Publishers; 2007. Surrogacy in Black Law Dictionary, family law; p. 349.

[ii] Surrogate motherhood | Definition & Facts, Britannica, https://www.britannica.com/topic/surrogate-motherhood.

[iii] American Law Reports, Validity and Construction of Surrogate Parenting Agreement, 77 A.L.R. 4 70. (1989).

[v] The Surrogacy Regulation Act, 2021

[vi] The Surrogacy Regulation Rules, 2022

[vii] Medical Termination of Pregnancy Act, 1971

[viii] Jan Balaz v. Anand Municipality, AIR 2010 Gul 21

[ix] Baby Manji Yamada v. Union of India, AIR 2009 SC 84

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