The Impact Of The Surrogacy (Regulation) Act 2021 In India - A Comprehensive AnalysisOf Pros And Cons
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THE IMPACT OF THE SURROGACY (REGULATION) ACT
2021 IN INDIA: A COMPREHENSIVE ANALYSIS
OF PROS AND CONS
Tanushree, Research Scholar, University of Lucknow (U.P.) Dr. Mahendra Kumar Baishya, Assistant Professor, Sri Jai Narain P.G. College, Lucknow (U.P.)
ABSTRACT
The new Surrogacy (Regulation) Act of 2021 regulates surrogacy arrangements and establishes a framework for surrogacy’s legal and ethical conduct in India. Surrogacy continues to grow in popularity as a solution for infertile couples. However, the absence of regulations in India had sparked concerns about the surrogate’s exploitation and the commercialization of the process. Only Indian couples who have been married for five years or more and are unable to conceive are allowed to apply for the surrogacy service, according to the new law. In addition, the surrogate mother needs to fit specific age and health requirements and be a close relative of the intended parents. Furthermore, commercial surrogacy is prohibited by law, meaning that surrogacy is no longer a viable financial venture.
The intended parents, the surrogate mother, and the surrogate child are among the parties whose rights are supposed to be safeguarded by these restrictions. The National Surrogacy Board regulates the process; the act prohibits commercial surrogacy and only permits altruistic surrogacy. The act deals with issues related to trafficking in women and children, the exploitation of women, and the rights and obligations that intended parents and surrogates have under the law. Concerns have been expressed, meanwhile, over how the act may affect women’s rights and the surrogacy industry as a whole. Keywords: Surrogacy, Impact, Surrogacy (Regulation) Act, Surrogate mother, intended parents, Surrogate
INTRODUCTION
In surrogacy, a woman consents to bear a child on behalf of a person or couple who is not able to conceive naturally. This technique has grown in favor as a workable choice for single people and couples dealing with infertility issues. In Indian society, surrogacy was frowned upon since it was seen as reducing natural reproduction. Even if the couple decided to have the child born to someone else, society thought that the child was “illegitimate”. A woman’s physical decision is overlooked by society due to its chauvinist and patriarchal beliefs. Because they are taken advantage of by society, many women occasionally reject to be surrogate moms as a result of this mentality. This kind of exploitation affects not just surrogate moms but also the couples who use them as well as the born kid. It can be quite dangerous when one acts misogynistically.
However, women have the legal right to make decisions about their bodies. She shouldn’t have to deal with social intervention because she has complete autonomy over her body and privacy. 1 There are four types of surrogacies:
1. Traditional surrogacy: In this type of surrogacy, the child is either naturally conceived or
by in vitro fertilization. The surrogate mother is also the child’s genetic mother.
2. Gestational surrogacy: With this approach, the mother’s egg and the biological father’s
sperm serve as fertilizers in an in vitro fertilization (IVF) process to create embryos. After that, the whole embryos are placed into a surrogate mother’s uterus. There is no biological connection between the child and the surrogate mother in this approach.
3. Commercial surrogacy: In this procedure, a person or couple must pay the surrogate mother
fees or other compensation in exchange for her carrying their kid, who is then adopted legally or privately to become the child’s biological parents. Through this technique, the surrogate mother receives payment for giving birth to a child. In India, this technique was later outlawed by the New Surrogacy Act of 2021.
4. Altruistic surrogacy: A woman who bears the couple’s child through this process is not
compensated financially for giving birth. Nonetheless, the intended couple pays for all 1 K Patel, ‘Surrogacy in India: A study of legal and ethical issues’ (2020) 1(1) Indian Journal of Legal and Constitutional Studies 23.
pregnancy and baby-related expenses. In August 2021, the Indian Parliament enacted the Surrogacy (Regulation) Act, 2021, which established regulations for the surrogacy sector in India. The legislation takes the place of the old surrogacy law, which was passed in 2002 and was deemed antiquated and insufficient to address the issues and problems facing India’s surrogacy sector. While some have welcomed the new act as a step in the right direction toward guaranteeing the secure and moral execution of surrogacy agreements in India, others have expressed concerns about its potential effects on both the surrogacy industry and individual surrogacy rights. Since many people began utilizing commercial surrogacy as a way to make money, the act aims to ban it and encourage solely altruistic surrogacy.
Thus, this law permits surrogate mothers to receive only the costs associated with the hospital and insurance. Commercial surrogacy has drawn criticism because it appears to place a value on the child born through surrogacy. It was observed that child trafficking frequently occurred as a result of couples violating the mother’s rights by withholding payment in full. 2 Union of India and Anr v Jan Balaz and Ors3 case led to the Indian government prohibiting commercial surrogacy for foreigners, which was viewed as a step in the right direction against the exploitation of women and children for surrogacy. The case also demonstrated the necessity of laws to safeguard the legal rights of surrogates and the offspring they carry.
ORIGIN OF SURROGACY
Although the name “surrogacy” is relatively new, the practice of surrogacy has a long history. Evidence of surrogacy dates back thousands of years in India. The Bhagvata Purana, which tells the story of Kans, Devaki, and Vasudeva, provides proof of the surrogacy practiced throughout the Mahabharata time. The ruthless ruler Kans of Mathura had his sister Devaki and her husband Vasudeva imprisoned because the heavens had given warnings that Devaki and Vasudeva’s eighth son would destroy Kans. Afterwards, shortly after giving birth, Kans killed each of the six sons of Devaki by slamming their skulls on the ground. God intervened in the conception of the seventh son in order to protect his life. They summoned Goddess Yogamaya and asked her to transfer the embryo from Devaki’s womb to Rohini’s.
Rohini was 2 M Chawla, ‘Surrogacy: Ethical and Legal Issues in India’ (2018) 24(1) Asian Journal of Women’s Studies 44.
3 2015 4 RCR (Cri) 807.
Vasudeva’s other wife, who lived in the Gokula cowherd community across the Yamuna river with her brother Nanda. As a result, the child born in one womb was raised in and delivered by another.4 Surrogacy laws were not explicitly enacted in India until 2021. For parents who would desire to pursue surrogacy, the Assisted Reproductive Technology (Regulation) Bill and the Surrogacy (Regulation) Bill were only two helpful tools. Both measures were waiting before the Indian Parliament because of a protracted dispute. Finally, the laws are modified to better meet the needs of modern India and are passed into law as the Surrogacy (Regulation) Act of
2021 and the Assisted Reproductive Technology (Regulation) Act, 2021. In India, commercial
surrogacy was permitted from 2002 to 2015. During this legalized period, commercial surrogacy businesses blossomed in lieu of the large number of impoverished women who were willing to rent their wombs in order to make a decent life. 5 Unfortunately, intermediaries took advantage of this necessity to establish a connection between women and the healthcare system, which led to the latter’s oppression. The number of certified couples that looked for surrogate moms in India during this period of legalization is unknown. Both the surrogate and the child were at risk of exploitation because of the enormous financial divide and inequality among those who participated in the commercial surrogacy. This demonstrated the urgent necessity to expedite the surrogacy regulations.
The Indian government was forced to intervene and introduce the Surrogacy Regulation Bill of 2015 because to the rising demand and fraudulent practices that resulted in the mistreatment of vulnerable populations. Simultaneously, there was a need for guidelines to safeguard the rights of the commissioning parents. The matter was brought up in the Lok Sabha on December 4, 2015, when the government decided to prohibit commercial surrogacy. As a result, the Surrogacy (Regulation) Bill was drafted in 2016 and, after going through several revisions, was approved by the Lok Sabha in 2018. A committee was established by the Rajya Sabha to review the Surrogacy (Regulation) Bill 2019 with different stakeholders. The committee’s findings resulted in additional revisions, which were ultimately implemented on December 25, 2021, when the bill was signed into law.
4 Devdutt Pattanaik, ‘Infertility, Artificial Insemination and Surrogate Mother in Hindu Mythology’ (2014) accessed on 11 May 2024.
5 KS Jayaraman, ‘Surrogacy Tourism to Rise’ (2012)
accessed on 09 May 2024.
On December 25, 2021, the Indian Parliament passed the Surrogacy (Regulation) Act, 2021. The Act is a social welfare law that was enacted with the intention of defending the legal rights of surrogate mothers and surrogate children. The National Assisted Reproductive Technology and Surrogacy Board, State Assisted Reproductive Technology and Surrogacy Boards, and the appointment of suitable authorities for the regulation of surrogacy practices and procedures, as well as for matters related or incidental thereto, are expressly addressed in this Act. The Surrogacy (Regulation) Bill 2016 prohibited commercial surrogacy and allowed only “altruistic” surrogacy within family members in an effort to lessen the exploitation of lowincome and illiterate indigenous women.
SURROGACY (REGULATION) ACT, 2021
The major parties in gestational altruistic surrogacy are listed in Chapter 1 of the 2021 Act. The conditions that must be met in order for them to qualify for altruistic surrogacy in the Indian subcontinent are outlined in Chapter 3. According to the new Surrogacy Act of 2021, a woman must be 35 or 45 years old, or a married couple who is lawfully married, to utilize the surrogacy technique. If the woman has a medical condition that makes using a surrogate necessary just for childbirth, then she alone is eligible to benefit from the surrogacy. In India, commercial surrogacy is illegal and those who engage in it risk a 10-year prison sentence and a fine of up to Rs. 10 lakhs. 6 Strong checks and balances are maintained by the Act to prevent the exploitation of women. It tries to eliminate the middleman who capitalizes on others.
It preserves and honors the significance of motherhood together with any potential parental rights for the child. But the prohibition on commercial surrogacy turns the emphasis from a needbased approach to a right-based one. Individuals should make the decision regarding their ability to have children and how many children they wish to have, not the government. 7 According to the Act, only cases that fit into the following categories would be eligible for opting surrogacy where there is a medical need. When: a) the intending parents are of Indian descent; or b) the intended mother is a widow or divorcee, the District Medical Board is required to provide this indication certificate in the commissioning party’s favor. c) The
6 Section 39, Surrogacy (Regulation) Act 2021.
7 Gaurang Narayan, Hara Prasad Mishra, ‘The Surrogacy Regulation Act of 2021: A Right Step Towards an Egalitarian and Inclusive Society?’ accessed on 10 May 2024.
surrogacy is being done for altruistic reasons. d) There is no intention of making money from it.8 A couple’s close relative is the only person qualified to serve as a surrogate mother. No one
else may be hired by a couple to be a surrogate. The intended surrogate mother should be between the ages of 20 and 35, and she may only serve as a surrogate mother once. A woman who previously engaged in surrogacy is not eligible to do it again. The authorities designated by the central and state authorities to oversee the surrogacy agreements handle the following tasks: granting, cancelling, suspending, and registering the surrogacy clinics. 9 To oversee the arrangements, the federal and state governments have established national and state surrogacy boards. Within ninety days after the act’s passage, these boards were to be established. These organizations are responsible for monitoring surrogacy clinic standards, proposing changes, and looking into violations. 10 Both the surrogate mother’s agreement and the authority’s approval are needed to abort the child that is inside her.
This act gives the surrogate mother the choice to end the surrogacy arrangement before the embryo is implanted in her womb. Key Features of the Act
1. Regulation of Surrogacy Clinic: The Act’s Section 3 lays down the clinic’s regulations. To
conduct surrogacy properly, each clinic must be licensed under the surrogacy regulations act. Commercial surrogacy has been banned and no gynecologists will ever perform it at an Indian hospital. At licensed clinics, all of the procedures mentioned above will be followed. Furthermore, sex selection is never permitted during the surrogacy process.11
2. Regulation of Surrogacy and Surrogacy Procedures: According to Section 4 of the Act, a
clinic is not permitted to engage in surrogacy-related operations if it is not registered under the act. If the necessary qualifications are not met, then no one can be employed for the procedure, and there won't be any help, collaboration, or involvement. No physician,
8 ibid.
9 Section 4, Surrogacy (Regulation) Act 2021.
10 JA Gupta, R Mahajan, ‘Making Babies in the Indian Way: Surrogacy, Bioethics, and Reproductive Justice’ (2018) 25(2) Indian Journal of Gender Studies 188.
11 Section 3, Surrogacy (Regulation) Act 2021
obstetrician, medical professional, or embryologist will support or collaborate in commercial surrogacy.12
3. Written Consent of the Surrogate Mother: According to Section 6 of the act, the surrogate
mother will be made aware of every consequence associated with her role as a surrogate mother. It is important that all the details are known to her, and any false information will not be acceptable. She should be informed of any side effects and medical information, and the surrogate mother’s full consent should be obtained. Written informed consent will be taken into consideration.13
4. Prohibition to Abandon Child: According to Section 7 of the Act, a child born through
surrogacy cannot be abandoned under any circumstances. Not even a genetic flaw, birth defect, or health issue will be accepted as a justification for leaving the child behind, whether in India or abroad.14
5. Rights of the Surrogate Child: According to Section 8, the child born to the surrogate
mother will be regarded as the intended couple’s biological child and will be entitled to all legal protections accorded to a natural child. The child will not have any biological relationship with the surrogate mother after birth. 15
6. No group or individual can compel the surrogate mother to abort the child under any
circumstances, according to Section 10 of the Act.16 Defects of the Act
1. This act upholds the traditional era’s patriarchal standards. The act directly impacts
women’s fundamental rights to reproduce under Article 21 of the Constitution and has no bearing on the economic worth of women’s labor.17 The Act forbids both commercial surrogacy and compensating surrogates with money. The ruling in Suchita Srivastava v
12 Section 4, Surrogacy (Regulation) Act 2021
13 Section 6, Surrogacy (Regulation) Act 2021.
14 Section 7, Surrogacy (Regulation) Act 2021.
15 Section 8, Surrogacy (Regulation) Act 2021.
16 Section 10, Surrogacy (Regulation) Act 2021.
17 S Sharma, ‘Surrogacy in India: A Critical Evaluation of Legal and Ethical Issues’ 12(1) The Indian Journal of Law and Technology 29.
Chandigarh Administration18, which held that the right to choose one’s own reproductive options is protected by Article 2119, is in conflict with this restriction. The ban on commercial surrogacy keeps women from exploiting their reproductive capacities for financial benefit by neglecting the psychological, physical, and emotional toll that pregnancy takes as well as the associated medical expenses. In its 102nd report in the year 2016, the Parliamentary Standing Committee on Health and Family Welfare called for adequate compensation for surrogates rather than the repeal of the ban on commercial surrogacy. This argument, as well as Article 23 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Economic, Social, and Cultural Rights, which mandate a fair payment in exchange for human labour, are ignored by the Surrogacy Act.
2. The financial resource of surrogates has been impacted by the ban on commercial
surrogacy, which has also restricted the number of women who are willing to serve as surrogates. Not everyone is ready to conceive for the sole purpose of giving birth to a child for nothing.20
3. In altruistic surrogacy, the couple’s close relative should serve as the surrogate mother.
Therefore, the child and surrogate mother may develop an emotional attachment as a result of this arrangement. The intended couple’s bond with the surrogate mother may also be impacted by this. Because it can be difficult to persuade a relative to become a surrogate mother, this kind of surrogacy also restricts the couple’s options for selecting a surrogate.21
4. Some important ethical concerns, including the possibility of women’s bodies being
exploited and turned into commodities, are not addressed by the legislation.22
5. There is no third party involved in altruistic surrogacy. However, a third party was often
beneficial since they could guide the intended couple and the surrogate mother through the
18 2009 AIR SCW 5909.
19 Article 21, The Constitution of India, 1950.
20 Rudra Pal, ‘Impact of The New Surrogacy (Regulation) Act, 2021 on Surrogacy Arrangements in India’ (2023) accessed on 9 May 2024. 21 M Chawla, ‘Surrogacy: Ethical and Legal Issues in India’ 24(1) Asian Journal of Women’s Studies 44. 22 K Singh, N Sharma, ‘Surrogacy (Regulation) Act, 2021: A Critical Analysis of Ethical Implications on Surrogate Mothers’ 10(4) International Journal of Reproduction, Contraception, Obstetrics and Gynecology 1184.
difficult procedure. In altruistic surrogacy, the intended couple covers all medical costs associated with the surrogacy procedure. They can also receive financial assistance from third parties, although altruistic surrogacy does not allow this.
6. The act limits the use of surrogacy services to married couples who are unable to conceive
naturally and have been married for at least five years. It is not possible for single people, same-sex couples, or live-in partners to use surrogacy services. 23 It perpetuates a stereotype of a family by assuming that women lack autonomy and perpetuating a heteronormative household dynamic, For or a child to mature fully, both parents must be of different sexes, according to Indian law, society norms, and religious teaching. Aware of this, the Indian judiciary views the freedom to procreate as a fundamental right. In B K Parthasarthi v Government of Andhra Pradesh24, for example, the Andhra Pradesh High Court upheld that “the right to reproductive autonomy” is inclusive within the “right to privacy” and acknowledged that the choice to procreate is a legitimate civil right.
In a landmark decision in National Legal Services Authority v Union of India25, the Apex Court acknowledged transgender individuals as belonging to the third gender. However, equal rights for members of the third gender are not included in the 2021 Act. Similarly, S Khushboo v Kanniammal26, the Apex Court ruled that a live-in relationship is covered and protected by Article 21. In Payal Sharma v Superintendent Nari Niketan27, the Allahabad High Court declared that - “a man and a woman, even without getting married, can live together if they choose”. Thus, it is evident from the courts that not all socially objectionable action has to be considered illegal. Nevertheless, it is unclear and has to be addressed why these couples do not have the same parental freedom. 28
EFFECTS OF THE ACT
The Indian surrogacy market has been greatly impacted by the Surrogacy (Regulation) Act,
2021. In addition to offering legal rights for surrogates and children born through surrogacy,
23 S Sharma, ‘Surrogacy in India: A Critical Evaluation of Legal and Ethical Issues’ 12(1) The Indian Journal of Law and Technology 29.
24 1999 SCC OnLine AP 514.
25 (2014) 5 SCC 438.
26 2010 (5) SCC 600.
27 AIR 2001 All 254.
28 Gaurang Narayan, Hara Prasad Mishra, ‘The Surrogacy Regulation Act of 2021: A Right Step Towards an Egalitarian and Inclusive Society?’ accessed on 10 May 2024.
the act has addressed many of the ethical issues surrounding commercial surrogacy and given much-needed oversight to the sector. One of the biggest amendments brought about by the Surrogacy (Regulation) Act of 2021 is the ban on commercial surrogacy. The surrogacy sector, which was mostly fueled by commercial surrogacy, has been profoundly impacted by this. 29 Significant effects are also arising from the restriction on surrogacy services to married couples, which has prevented single people, same-sex couples, and live-in partners from using surrogacy services. This has proven to be a contentious part of the legislation, with opponents claiming that it violates people’s right to reproductive autonomy and is discriminatory. Legal safeguards are also offered by the act to surrogates and the offspring conceived via surrogacy.
To serve as a surrogate, surrogates must provide written consent, and they are free to change their minds at any point before the embryo is transferred. The act also calls for the setting up of a Surrogacy Regulation Authority, whose job will be to supervise the act’s enforcement and guarantee the ethical and equitable execution of surrogacy agreements. Another significant milestone is the creation of the National Surrogacy Board, which serves as a central authority for regulating the surrogacy sector. 30 The board is in charge of overseeing surrogacy agreements to make sure they comply with the act, creating guidelines and regulations for surrogacy clinics, and keeping a national database of intended parents and surrogates.
More details regarding surrogacy arrangements in India will become available with the formation of the National Surrogacy Board and the mandate for surrogacy clinics to keep track of surrogates and intended parents. This might guarantee that surrogacy agreements are carried out properly and ethically and help stop the exploitation of women and children in the surrogacy sector. 31 There are doubts that the new law might have unforeseen repercussions, though. For instance, some experts think that the outlawing of commercial surrogacy would encourage the growth of unlicensed and illicit surrogacy agreements, which might be even more abusive than commercial surrogacy.
Furthermore, the need for altruistic surrogacy agreements might make it harder for Indian women to find surrogates because they might not 29 Rudra Pal, ‘Impact of The New Surrogacy (Regulation) Act, 2021 on Surrogacy Arrangements in India’ (2023) accessed on 9 May 2024.
30 ibid.
31 V Muthuswamy, ‘Surrogacy in India: The Current Scenario’ (2017) 5(4) International Journal of Humanities and Social Science Research 35.
agree to serve as surrogates without exchange for any compensation.32
CONCLUSION
With regard to regulating the surrogacy sector in India and resolving many of the ethical issues surrounding commercial surrogacy, the Surrogacy (Regulation) Act, 2021 is a noteworthy step forward. In addition to bringing much-needed legal protections for surrogates and the children delivered via them, the act has improved accountability and transparency within the Indian surrogacy sector. But the act has also drawn criticism for prohibiting commercial surrogacy and limiting surrogacy services to married couples. Some people have viewed these limitations as discriminatory, which has raised questions about the violation of women’s reproductive rights. While still making sure that surrogacy arrangements are carried out properly and ethically, policymakers should think about granting other groups (singles, same-sex couples, and live-in partners) more access to surrogacy services.
Furthermore, the act overlooks the problem of international surrogacy and solely governs surrogacy agreements made within India. This has raised worries that the surrogacy market would just relocate to another country with fewer restrictions. Legislators should think about tackling the problem of international surrogacy to guarantee that surrogacy agreements are fulfilled in a moral and safe manner wherever they take place. The act is a crucial first step in regulating the surrogacy market in India, but lawmakers still need to keep an eye on it and make improvements to make sure the regulations are balanced with the protection of individual reproductive rights. 32 N Kapoor, H Kaur, ‘Surrogacy in India: Need for Regulation’ (2019) 7(1) Journal of South Asian Studies 143.