Surrogacy in India – Procedures, Laws, Challenges, Way Forward

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  • A landmark ruling by the Supreme Court on October 18, 2023, permitted a woman suffering from Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, a condition that prevents egg production, to undergo surrogacy using donor eggs. This decision marked a significant deviation from the existing rules​​​​.
  • The Supreme Court raised concerns over the insistence that only the eggs and sperm of intending couples can be used for gestational surrogacy, deeming this restriction against Rule 14(a) of the Surrogacy (Regulation) Rules, 2022​​.
  • In March 2023, a government notification amended the law, banning the use of donor gametes, which mandated that “intending couples” must use their own gametes for surrogacy. This amendment was challenged in the Supreme Court as a violation of a woman’s right to parenthood​​.
surrogacy in india mind map

What is Surrogacy?

Surrogacy, an important method of assisted reproduction, involves a surrogate carrying and giving birth to a child for another person or couple, known as the intended parents. This process has garnered attention in India due to its effectiveness and the relatively lower costs compared to other countries. Here are key points about surrogacy in India:

  • Types of Surrogacy:
    • Traditional Surrogacy: The surrogate uses her own egg, making her the biological mother. This type is less common.
    • Gestational Surrogacy: More common, where the surrogate carries a child conceived using an egg and sperm from the intended parents or donors, with no genetic link to the surrogate​​.
  • Cost and Medical Facilities:
    • Known for affordability and advanced medical infrastructure, India has been a preferred destination for surrogacy.
    • However, ethical concerns like potential exploitation of surrogates and commodification of children are prevalent​​.
  • Surrogacy Process:
    • Involves initial consultation, choosing a surrogate, legal formalities, medical procedures, and post-birth care.
    • Legal contracts are crucial, defining rights, responsibilities, and financial arrangements.
    • Medical steps include ovum retrieval, sperm collection, embryo creation and transfer, and monitoring the surrogate’s pregnancy​​.
  • Advantages and Challenges:
    • Advantages: Cost-effectiveness, medical expertise, a diverse surrogate pool, and a supportive legal framework.
    • Challenges: Ethical concerns, lack of uniform regulations, potential for exploitative practices, emotional complexities, and international legal considerations​​.

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Historical Background & Evolution of Surrogacy in India

The history and evolution of surrogacy in India reflect a journey from informal practices to a more regulated framework:

  • Early History: Surrogacy in India has traces of being a century-old practice. India’s first IVF baby, Kanupriya alias Durga, was born in 1978 in Kolkata, marking the beginning of assisted reproductive technology (ART) in India. Initially, there were no legal recognitions or codified laws for surrogacy, with only ART guidelines informally guiding the process. India became a popular international destination for surrogacy due to its affordability and lack of stringent regulations​​.
  • Fertility Issues and Surrogacy: The primary reasons favoring surrogacy in India have been fertility problems in intended parents, medical complications, recurrent abortions, and repeated failure of IVF procedures. These factors, coupled with affordable rates, contributed to the booming surrogacy industry in India​​.
  • Regulatory Beginnings (2005-2015): Until 2005, no specific guidelines or regulations governed the practice of surrogacy in India. The Indian Council of Medical Research (ICMR) and National Academy of Medical Sciences (NAMS) introduced guidelines in 2005 to supervise and regulate ART clinics. By 2009, the Law Commission of India recognized the need for legislation to regulate ART clinics and surrogacy, leading to a recommendation to ban commercial surrogacy. This resulted in the Ministry of Home Affairs banning commercial surrogacy for foreigners in 2015, addressing concerns of exploitation of surrogate mothers and commodification of children​​.
  • The Surrogacy (Regulation) Act, 2021: The first Surrogacy (Regulation) Bill was introduced in 2016 but lapsed. A revised bill was introduced in 2019 and passed by the Lok Sabha.

What are the provisions of the Surrogacy (Regulation) Act, 2021?

The Surrogacy (Regulation) Act, 2021 aims to regulate surrogacy practices in India, protect the rights of surrogate mothers and children born through surrogacy, and provide a legal framework for intended parents. Here are the key provisions of the Act:

  1. Prohibition of Commercial Surrogacy: The Act prohibits commercial surrogacy and exploitation of surrogate mothers and children born through surrogacy.
  2. Charitable Surrogacy: The Act exclusively permits charitable surrogacy, preventing those with financial means from abusing and taking advantage of the surrogacy option. It prohibits commercial surrogacy, as well as the trade of human gametes and embryos.
  3. Eligibility Criteria: The Act sets out specific eligibility criteria for surrogate mothers and intending parents. A surrogate mother is prohibited from providing her own gametes for surrogacy and cannot receive any compensation for carrying the child in her womb other than the necessary insurance and medical costs. Insurance must cover any difficulties arising from the delivery of the baby, including postpartum complications and even death, for a period of 36 months.
  4. Medical Indication: Surrogacy procedures can only be used when there is a medical indication. The District Medical Board must issue this indication certificate in favor of the commissioning party when the intended parents are of Indian origin, the intended mother is a divorcee or widow, the surrogacy is for charitable purposes, and it is not being done for financial gain.
  5. Rights of Surrogate Child: A child born out of a surrogacy procedure is deemed to be a biological child of the intending couple.
  6. Regulation of Surrogacy Clinics: The Act prohibits and regulates surrogacy clinics.
  7. National and State Surrogacy Boards: The Act requires the creation of a surrogacy board at the national and state levels. These boards will be responsible for overseeing surrogacy arrangements and ensuring that they comply with the provisions of the Act. The boards will also have the authority to issue licenses to infertility clinics and other medical facilities that offer surrogacy services.
  8. Custody and Care of Surrogate Children: The Act requires that the intended parents be recognized as the legal parents of a child born through surrogacy, and that the surrogate mother have no legal rights or obligations towards the child. However, the Act also requires that intended parents provide for the welfare and upbringing of the child, and that the surrogate mother be provided with medical and financial assistance during the pregnancy and post-delivery.
  9. Limitations: The Act only allows for surrogacy by married couples, potentially excluding single individuals or same-sex couples from pursuing surrogacy as a means of starting a family. However, the Act allows for surrogacy by single women.

What are the amendments made to the Act?

The Surrogacy (Regulation) Act, 2021 in India has undergone amendments in 2022 and 2023. Key provisions of these amendments include:

  1. Insurance coverage: The Surrogacy (Regulation) Amendment Rules, 2022, mandate that the intending woman or couple must purchase general health insurance coverage for the surrogate mother for a period of 36 months.
  2. Definition of “Couple of Indian Origin”: The Surrogacy (Regulation) Amendment Rules, 2023, introduced a new clause defining “Couple of Indian Origin” as a couple where both the husband and wife are Overseas Citizens of India (OCI) cardholders. The couple must also fulfill various criteria outlined in the Surrogacy (Regulation) Act, 2021.
  3. Ban on donor gametes: A government notification in March 2023 amended the law, banning the use of donor gametes. It stated that “intending couples” must use their own gametes for surrogacy.
  4. Qualifications of Andrologists: The Surrogacy (Regulation) Amendment Rules, 2023, updated the qualifications of Andrologists involved in surrogacy procedures. They must hold an MCh/DNB in urology or MS in General Surgery or FNB/MCh/DM in reproductive medicine, have a minimum of 2 years of experience, and hands-on experience in surgical sperm retrieval procedures.

These amendments aim to regulate surrogacy arrangements in India and ensure the well-being of all parties involved. However, the ban on donor gametes and the exclusion of certain sections of society, such as LGBTQIA+ individuals, from opting for surrogacy remain contentious issues.

What are the Recent Changes Made by the Supreme Court?

The Supreme Court of India has recently made significant rulings regarding the Surrogacy (Regulation) Act, 2021, particularly in relation to the use of donor gametes and the rights of women with specific medical conditions. These changes mark a progressive shift in the legal approach to surrogacy in India.

  • Interpretation of Genetic Relation: The Supreme Court contested the government’s argument that surrogacy should only involve children genetically related to the intending couple. The Court interpreted the law to mean that the child would be considered genetically related to the husband under certain conditions, allowing the gestational surrogacy process to proceed​​.
  • Case of MRKH Syndrome: In a landmark ruling on October 18, 2023, the Supreme Court allowed a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, which prevents her from producing eggs, to undergo surrogacy using a donor egg. This decision provides an exception to the existing restrictions and acknowledges the right of women with certain medical conditions to parenthood through surrogacy​​​​.
  • Concern Over Restriction on Donor Gametes: The Supreme Court raised concerns over the restriction that only the eggs and sperm of intending couples can be used for gestational surrogacy. This restriction was deemed prima facie against Rule 14 (a) of the Surrogacy (Regulation) Rules, 2022, highlighting the need for more inclusive regulations​​.
  • Upholding Women’s Right to Parenthood: In its decision, the Supreme Court emphasized the importance of safeguarding a woman’s right to parenthood, especially in cases involving medical conditions. This stance signifies a protective measure against laws that could hinder a woman’s aspirations to become a mother through surrogacy​​.

These recent Supreme Court rulings reflect a more inclusive and compassionate approach to surrogacy in India, addressing the needs and rights of women with specific medical conditions and challenging overly restrictive interpretations of the surrogacy regulations.

Criticisms & Challenges in Indian Surrogacy

  1. Exploitation of Women: The surrogacy industry in India has been criticized for exploiting women, particularly those from lower socio-economic backgrounds. These women often become surrogates due to financial need, and there are concerns about their treatment and the health risks they face.
  2. Health Risks: Surrogate mothers often face significant health risks, including the potential for serious complications from the hormones and medical interventions used in the surrogacy process. There have been reports of surrogate mothers suffering from conditions such as thyroid diseases, high blood pressure, diabetes, and even cancer.
  3. Lack of Legislation and Transparency: The surrogacy industry in India has been criticized for its lack of proper legislation and transparency. This has led to situations where both surrogate mothers and intended parents can be exploited, with profits often going to middlemen and commercial agencies.
  4. Ethical Concerns: There are numerous ethical concerns associated with surrogacy in India, including issues related to consent, the rights of the surrogate mother, and the rights of the intended parents. There have also been concerns about the potential for surrogacy to become a commercial racket.
  5. Negative Incidents: The surrogacy industry in India has been marred by several negative incidents, including the death of egg donors and surrogate mothers, visa troubles affecting children born from surrogacy, and the abandonment of surrogate children by clients. These incidents have led to increased scrutiny and controversy.
  6. Restrictive Regulations: The Surrogacy (Regulation) Act, 2021, which only permits altruistic surrogacy and restricts access to surrogacy for certain groups, has been criticized for potentially driving the practice underground and for excluding certain groups, such as single individuals and LGBTQ+ couples.
  7. Social Stigma: Despite growing acceptance in some circles, there remains a social stigma associated with surrogacy in India, for both intended parents and surrogates.
  8. Alternatives to Surrogacy: Critics argue that the focus on surrogacy overlooks other potential solutions for childless couples, such as adoption. However, adoption procedures in India are often complicated and lengthy, which can discourage potential parents.

Comparison of surrogacy laws in various countries

CountryType of Surrogacy AllowedKey Legal Provisions
IndiaAltruistic OnlySurrogacy allowed for married couples and single women (widows/divorcees), with strict eligibility criteria. Commercial surrogacy banned for foreign intended parents since 2015​​.
AustraliaAltruistic OnlyCommercial surrogacy is a criminal offense. All jurisdictions allow altruistic surrogacy, with potential penalties for international commercial surrogacy​​.
BrazilAltruistic OnlyCommercial surrogacy is banned, but altruistic surrogacy is allowed. Nevertheless, commercial practices are performed illegally​​.
CanadaAltruistic OnlyOnly altruistic surrogacy is permitted, with gestational carriers reimbursed for approved expenses. Quebec law renders all surrogacy contracts unenforceable​​.
ChinaForbiddenSurrogacy is banned, with fines for medical professionals violating this. Despite this, a commercial surrogacy market exists underground​​.
CubaAltruistic OnlyOnly altruistic surrogacy is allowed, following a new family law referendum in 2022​​.
Czech RepublicUnregulatedSurrogacy is not legally regulated, thus generally considered legal​​.
FinlandIllegalAll surrogacy arrangements, both commercial and altruistic, are illegal​​.
FranceIllegalAll surrogacy arrangements, both commercial and altruistic, are illegal​​.
GermanyIllegalAll surrogacy arrangements are illegal, but there’s a political push to allow altruistic surrogacy​​.
GreeceLegalSurrogacy is fully legal with legal protection to intended parents. The surrogate has no rights over the child​​.
Hong KongCommercial IllegalCommercial surrogacy is criminal, but it’s unclear if altruistic surrogacy is allowed​​.
IcelandIllegalAll surrogacy arrangements are illegal​​.
IranLegalAll surrogacy arrangements are legal and popular, especially among Middle Eastern couples​​.
ItalyIllegalAny form of surrogacy is prohibited and punishable by law​​.
JapanMostly UnregulatedProposed ban on surrogacy in 2008, but otherwise remains unregulated​​.
KenyaUnregulatedNo legal regulations or laws governing surrogacy​​.
MexicoLegalSurrogacy and gamete donation are legal. A donor or gestational carrier has no parental rights over the child​​.
MalaysiaProhibitedSurrogacy is prohibited by a fatwa issued in 2008​​.
NetherlandsAltruistic LegalOnly altruistic surrogacy is legal, with strict rules for hospital admissions​​.
New ZealandAltruistic LegalAltruistic surrogacy is legal​​.
NigeriaLegalSurrogacy is legal and contracts are enforceable in courts. Gestational surrogacy is practiced under specific guidelines​​.
PhilippinesUnregulatedNo legal framework for surrogacy, with legal barriers in transferring parental rights​​.
PolandMostly UnregulatedSurrogacy is mostly unregulated, with legal motherhood defined as the woman who gives birth​​.
PortugalLegal with RestrictionsSurrogacy allowed for heterosexual and lesbian couples under certain conditions. Some aspects of the law were considered unconstitutional in 2018​​.

What is the Way Forward?

  1. Inclusion of Marginalized Groups: The Surrogacy (Regulation) Act of 2021 should be amended to include marginalized groups such as LGBTQIA+ individuals who are currently excluded from opting for surrogacy.
  2. Financial Compensation for Surrogate Mothers: The Act should consider the economic aspects and financial compensation for the surrogate mother. This could help women from poor backgrounds find a job and alleviate poverty.
  3. Regulation of Commercial Surrogacy: While commercial surrogacy has been criticized for exploiting women, it also provides a sense of involvement for the intended parents and support for the surrogate mother. Therefore, it should be regulated rather than completely banned.
  4. Transparency and Legal Support: There should be more transparency in the surrogacy process to avoid legal problems. Surrogate mothers and intended parents should be provided with legal counseling and psychological screening.
  5. Protection of Surrogate Child’s Rights: The surrogacy arrangement should provide for financial support for the surrogate child in case the commissioning couple dies before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
  6. Regulation of Surrogacy Agencies: There should be strict regulation of surrogacy agencies to prevent exploitation of surrogate mothers and intended parents by middlemen and commercial agencies.
  7. Public Awareness and Education: There should be efforts to increase public awareness and education about surrogacy to debunk myths and misconceptions, and to promote acceptance of surrogacy as a valid option for childbirth.
  8. Simplification of Adoption Procedures: The adoption procedure should be simplified to provide an alternative to surrogacy. This could help reduce the rates of surrogacy and provide homes for orphaned children.
  9. Prohibition of Sex-Selective Surrogacy: Sex-selective surrogacy should be prohibited, and abortions should be governed by the Medical Termination of Pregnancy Act 1971.
  10. International Surrogacy Regulations: For foreigners or NRIs seeking surrogacy, there should be a written guarantee of citizenship for the child from their government, and they should also appoint a local guardian who would be legally responsible for taking care of the surrogate during and after the pregnancy till the child is delivered to the foreigner couple or reaches their country.

Practice Question for Mains

Analyze the ethical and social implications of the recent changes in India’s surrogacy laws. (250 words)

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