SURROGACY LAWS IN INDIA, RULES AND REGULATIONS CONCERNING THE SURROGACY PROCESS
Category: Constitutional
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INTRODUCTION
Surrogacy is a process in which a woman who is also known as the surrogate agrees to carry and deliver a child for another person or a couple). A surrogate, also called to as a gestational carrier, who is a woman who becomes pregnant, carries, and gives birth to a child for someone else.
The Surrogacy (Regulation) Act, 2021, governs surrogacy matters in India, rights, and regulations are provided under this Act. Surrogacy is available to widows or divorcees aged 35-45, or to a legally married partner with valid medical reasons for it. The parents must be an Indian couple, with the male aged 26-55 and the female aged 25-50, and must not have any biological, adopted, or surrogate children.
The law also prohibits commercial surrogacy which includes surrogacy or related procedures conducted for financial gains, and as a punishment 10 years in prison and a fine of up to Rs 10 lakhs is mentioned. It only permits altruistic surrogacy, where no transaction is made, and the surrogate is somewhat related to the intended parents. It also requires both the appropriate authority’s approval and surrogate mother’s written agreement to abort the child.
BACKGROUND
Surrogacy is a highly debated topic in India, raising social, moral, and legal concerns. When it comes to the legal status in India, it is governed by the guidelines of Indian Council of Medical Research (ICMR) and Court rulings. And we also have an Act named The Surrogacy (Regulation) Act, 2021, and this law was the need of hour. The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare, in Lok Sabha on July 15, 2019, and it was passed by both the houses Lok Sabha and Rajya Sabha in the year 2021. The intending couple must have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority to avail this.
Well surrogacy is although an old concept and many countries all the world already has legal support regarding this, in India it was not before 2016 when it was first drafted and after 5 years in 2021 finally passed by our legislature to control this. And it came into force on January 25, 2022.
In October 2023, the Supreme Court mandated that surrogacy must involve both gametes from the couple, and recent amendment of 2022 to this Act also supports that. And in B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High Court upheld reproductive autonomy as part of the right to privacy.
Eligibility for Couples:
Age: Commissioning parents must be between 25 and 50 years old.
No Previous Child: The couple should not have a child through natural conception, adoption, or surrogacy.
Medical Reports: Clear medical and radiological reports, including genetic screenings, are required.
Insurance: An insurance policy covering the surrogate's medical needs for 36 months is mandatory.
Essentiality Certificate: After approval by a government medical board, the couple receives this certificate.
Judicial Approval: The certificate must be submitted to a first-class judicial magistrate to confirm the child's birth.
Eligibility for Surrogate Mothers:
Age: Surrogates must be between 25 and 35 years old.
Married with Children: They must be married and have at least one child.
First-time Surrogate: The surrogate should be carrying a child for the first time.
Other Regulations:
Aadhaar Cards: The surrogate, couple, and child must have linked Aadhaar cards for traceability.
Embryo Genetic Link: The embryo must be genetically related to at least one member of the commissioning couple.
Embryo Donation: Embryo donation is not permitted in surrogacy.
Divorcees and Widows: Women aged 35 to 45, who are divorced or widowed, can donate eggs for surrogacy.
Citizenship: Children born through surrogacy abroad to Indian couples are not recognized as Indian citizens.
Parental Death: If the commissioning couple dies before the child’s birth, nominated individuals must raise the child, with the option to adopt or send the child to an orphanage.
Right to Information: Children born via surrogacy have the right to learn about their origins at age 18, including the identity of the surrogate mother.
Mental Fitness: A psychiatrist's certification of mental fitness is required.
KEY ASPECTS
The Surrogacy (Regulation) Act, 2021, governs surrogacy matters in India.
Rights and Regulations are prescribed in this act along with the punishment.
Surrogate mother must give their consent for this, and only three attempts is limited.
And the guidelines of the India Council of Medical Research are various court rulings are respected and promoted for its implementation and function.
It comes under the Ministry of Health and Family welfare.
Commercial surrogacy is prohibited and there is punishment for 10 years or 10 lakhs fine or both for committing this offence.
The main aim of this Act is to promote ethical and regulated surrogacy services.
It also mandates the rights of the surrogate mother and child.
It also prevents exploitation and human trafficking, and treat surrogate mothers with respect.
For its termination surrogate mother should follow the guidelines in the Medical Termination of Pregnancy Act, 1971.
And a health insurance for the surrogate mother must be provided for a minimum of 36 months.
Surrogacy clinic must be registered with the government and pay the required fees.
CONCLUSION
To conclude, The Surrogacy (Regulation) Act, 2021, aims to regulate and promote ethical surrogacy in India while protecting the rights of surrogate mothers and children. It prohibits commercial surrogacy and enforces punishments for violations. The Act requires clear medical, legal, and insurance protocols. It also safeguards against exploitation and ensures the child’s rights. Overall, the law promotes to create a fair, regulated framework for surrogacy in India.
