Surrogacy in India: Evolving Legal Landscapes

What is Surrogacy?

Surrogacy is a reproductive arrangement where a woman (the “surrogate mother”) carries and gives birth to a child for another individual or couple (the “intending parents”). The fundamental intention is for the child to be handed over to the intending parents after birth. Critically, any child born through a surrogacy procedure in India is legally considered the biological child of the intending parents and is entitled to all the rights and privileges available to a child born through natural pregnancy under Indian law.

The Current Legal Framework

The enactment of the Surrogacy (Regulation) Act, 2021, and its accompanying rules, marks a significant step towards regulating surrogacy in India. Before this, the landscape was less defined, leading to various ethical concerns. However, the journey is far from over. As the Act and Rules are put into practice, various difficulties and challenges faced by intending couples have come to the forefront. These practical impediments, along with ongoing legal challenges to certain provisions, indicate that India’s surrogacy law is still in its formative and evolving stages. The Central Government has already introduced several amendments to address shortcomings, highlighting the dynamic nature of this legislation.

Prohibiting Commercial Surrogacy

One of the most significant changes introduced by the Surrogacy Regulation Act, 2021, is the outright prohibition of commercial surrogacy. This means that any arrangement where the surrogate mother receives payment beyond her genuine medical expenses and insurance coverage is now illegal. The Act specifies stringent penalties for engaging in commercial surrogacy, including imprisonment and substantial fines.

The law exclusively permits altruistic surrogacy. In altruistic surrogacy, the surrogate mother receives no monetary incentive, remuneration, or fees. Her involvement is purely for compassionate reasons, with only her medical expenses and insurance coverage for the duration of the pregnancy being covered by the intending parents. This shift aims to prevent the exploitation of vulnerable women and uphold the ethical integrity of surrogacy.

Who Can Opt for Surrogacy in India? Eligibility Criteria

The Act sets forth strict eligibility requirements for individuals or couples who wish to commission surrogacy in India:

• For Married Couples of Indian Origin:
  • The male partner must be between 26 and 55 years of age.
  • The female partner must be between 23 and 50 years of age.
  • They must be legally married.
• For Single Women:
  • She must be a widow or a divorcee.
  • She must be between 35 and 45 years of age.
• Medical Necessity:
  • Crucially, there must be a certified medical indication that prevents the intending individual or couple from carrying a child through natural pregnancy. This medical necessity, which should make gestational surrogacy essential, requires a recommendation certificate from a designated authority.

Exceptions for Couples with Existing Biological Children

Under the current legal framework, intending couples generally cannot opt for surrogacy if they already have a surviving biological child, adopted child, or child born through a previous surrogacy, unless there is a specific exception. This exception applies only if their existing child suffers from a mental or physical disability, a life-threatening disorder, or a fatal illness for which there is no permanent cure. This provision underscores the law’s focus on assisting those genuinely unable to have a child otherwise.

Medical Indication and Surrogacy Deeds

The law strictly mandates that a clear medical reason must necessitate gestational surrogacy for the intending parent(s). This is to ensure that surrogacy is a last resort for individuals facing genuine fertility challenges, rather than a matter of convenience. A certificate of recommendation from a designated authority is essential in this regard.

In India, a “surrogacy deed” or “surrogacy agreement” is a mandatory legal document that forms the backbone of any altruistic surrogacy arrangement. Governed by the Surrogacy (Regulation) Act, 2021, and its subsequent Rules, this deed meticulously outlines the rights, responsibilities, and obligations of all parties involved: the intending parents and the surrogate mother. It specifies details such as medical procedures, the surrogate mother’s consent, coverage of her medical expenses and insurance, and the legal parentage and custody of the child to be born. This crucial document is designed to ensure transparency, prevent exploitation, and legally bind the parties, providing a robust framework for a secure and ethical surrogacy journey.

The Surrogate Mother: Who Can Volunteer?

The criteria for a woman to be a surrogate mother are also clearly defined to ensure her well-being and prevent exploitation:

• She must be a woman between 25 and 35 years of age.
• She must be married, a widow, or a divorcee.
• She must have a child of her own.
• She must not have been a surrogate previously.
• She must obtain a certificate of medical and psychological fitness for the surrogacy procedure.
• Her written consent, in a language she fully understands, is mandatory. This consent is crucial for her informed decision-making throughout the process.

The Surrogacy Process: Medical and Legal Steps

The entire surrogacy procedure in India is highly regulated to ensure ethical practices and protect the rights of all parties involved:

• Registered Clinics Only: Surrogacy procedures can only be performed at clinics officially registered under the provisions of the Surrogacy (Regulation) Act, 2021. This ensures that the procedures are conducted in a safe and regulated environment.
• Court Order for Parentage and Custody: Before commencing the surrogacy process, the intending couple or woman must obtain a court order from a First Class Magistrate or a higher court, concerning the parentage and custody of the child to be born. This legal step solidifies the rights and responsibilities of the intending parents.
• Insurance Coverage: The intending parents are required to provide comprehensive health insurance coverage for the surrogate mother for a period of 36 months. This insurance must cover any postnatal delivery complications and other prescribed expenses.
• Limited Surrogacy Attempts: A surrogate mother cannot undergo the surrogacy procedure more than three times in her lifetime. This is a measure to protect her health and prevent repeated physical strain.
• Medical and Psychological Fitness: Both the intending parents and the surrogate mother must undergo medical and psychological evaluations to ensure their fitness for the surrogacy process.
• Prohibition of Abandonment: The intending couple or woman is strictly prohibited from abandoning the child born through surrogacy for any reason whatsoever. This includes cases of genetic defects, birth defects, other medical conditions, the child’s sex, or the conception of more than one baby. The child’s welfare is paramount.
• Donor Gametes: A Recent Amendment:Previously, the law had a stricter stance on donor gametes. However, following petitions to the Supreme Court of India, an important amendment was introduced. Now, while the use of two donor gametes is still prohibited, an intending couple may use a donor gamete as long as at least one gamete (either sperm or egg) comes from one of the intending parents. This amendment was crucial as it addressed situations where one partner had a medical condition preventing them from contributing their own gamete.
  • Important Note: As per the current law, a single intending mother (widow or divorcee) is generally required to use her own eggs and donor sperm. The use of two donor gametes is not permissible for her.

Surrogacy for Indians Residing Abroad

Historically, surrogacy for Non-Resident Indians (NRIs) and Overseas Citizens of India (OCI cardholders) was primarily governed by Ministry of Home Affairs guidelines. A significant change occurred with a 2015 notification that largely restricted foreign nationals, including OCI cardholders, from commissioning surrogacy in India.

However, the Surrogacy (Regulation) Act, 2021, has notably included OCI cardholders within the class of persons of Indian origin who are permitted to commission surrogacy in India. Other categories of Indian origin persons who do not hold a valid OCI card generally remain disqualified from undergoing surrogacy in India under the current law.

Seeking Legal Remedies

Despite the comprehensive nature of the new surrogacy laws, there may still be situations where intending couples face difficulties or perceived injustices in proceeding with surrogacy. In such circumstances, they have the legal recourse to approach the Constitutional Courts (High Courts and the Supreme Court of India). These courts possess the power to issue appropriate directions to concerned authorities, granting relief to intending couples in demonstrably unfair or unequal situations, based on principles of equity and fundamental rights.

It is worth noting that the surrogacy law in India has already undergone significant amendments, many of which have been a direct result of provisions being challenged in Constitutional Courts on the grounds of violating fundamental rights enshrined in the Constitution of India. This continuous engagement with the judiciary reflects the dynamic process of refining a sensitive and complex area of law.

FAQs

Q1: Is commercial surrogacy legal in India?

No, commercial surrogacy is strictly prohibited and criminalized under the Surrogacy (Regulation) Act, 2021. Only altruistic surrogacy is permitted.

Q2: Who is considered an “intending couple” under the Surrogacy Act?

An “intending couple” refers to a legally married Indian couple where the husband is between 26-55 years and the wife is between 23-50 years, and they have a certified medical condition necessitating surrogacy.

Q3: Can a single man commission surrogacy in India?

No, the current law allows only married couples of Indian origin and single Indian women (widow or divorcee) to commission surrogacy. Single men are not eligible.

Q4: What is the maximum number of times a woman can be a surrogate mother in India?

A woman can undergo the surrogacy procedure not more than three times in her lifetime.

Q5: Is it mandatory to get a court order for surrogacy?

Yes, a court order from a First Class Magistrate or above, confirming the parentage and custody of the child to be born through surrogacy, is a mandatory requirement before commencing the procedure.

Conclusion

India’s journey with surrogacy laws reflects a clear intent to regulate this practice ethically and prevent exploitation, particularly of surrogate mothers. The Surrogacy (Regulation) Act, 2021, and the Surrogacy (Regulation) Rules, 2022, represent a monumental step towards providing a structured and legally sound framework. While the road ahead may involve further amendments and interpretations by the courts, the current laws prioritize altruistic intent, the well-being of the surrogate mother, and the rights of the child born through surrogacy. For anyone considering this path to parenthood, a thorough understanding of these regulations and seeking expert legal and medical advice are absolutely essential.

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