The debates around the Surrogacy Act

News: Petitioners in the Delhi High Court questioned why marital status, age, or gender were the criteria for being allowed to commission or not commission surrogacy in India.

The female petitioner said that she already had a child, but the trauma of the first childbirth experience and her need to juggle work with child care persuaded her that surrogacy would be a better option for the second child. But under the provisions of the Surrogacy Act, she was denied a chance at commissioning surrogacy.

What is the Surrogacy Act?

The Surrogacy (Regulation) Bill was introduced in Parliament in November 2016, and passed in the Winter session of Parliament in 2021.

The Act sought to regulate the surrogacy part of a rather flourishing infertility industry in the country.

It defines ‘surrogacy’ as a practice where a woman undertakes to give birth to a child for another couple and agrees to hand over the child to them after birth,

The Act allows ‘altruistic surrogacy’ — wherein only the medical expenses and insurance coverage is provided by the couple to the surrogate mother during pregnancy. No other monetary consideration will be permitted.

As per the Surrogacy Act that kicked in from January this year, a married couple can opt for surrogacy only on medical grounds.

The law defines a couple as a married Indian “man and woman” and also prescribes an age-criteria with the woman being in the age group of 23 to 50 years and the man between 26 and 55 years.

Additionally, the couple should not have a child of their own.

Though the law allows single women to resort to surrogacy, she should either be a widow or a divorcee, between the age of 35 to 45 years.

Single men are, however, not eligible.

Why is there a need for a Surrogacy Act in India?

India has emerged as a hub for infertility treatment, attracting people from the world over with its state-of-the-art technology and competitive prices to treat infertility.

Soon enough, due to prevailing socio-economic inequities, underprivileged women found an option to ‘rent their wombs’ and thereby make money to take care of their expenses.

Once information of the availability of such wombs got out, the demand also picked up, and exploitation of these women began. Several instances began to emerge where women, in often desperate straits, started lodging police complaints after they did not receive the promised sum.

Other issues also began to crop up. For instance,

in 2008 a Japanese couple began the process with a surrogate mother in Gujarat, but before the child was born they split with both of them refusing to take the child.

in 2012, an Australian couple commissioned a surrogate mother, and arbitrarily chose one of the twins that were born.

The time therefore, was ripe for proper regulation.

Who all are allowed to make use of the services of a surrogate mother?

Any couple that has ‘proven infertility’ are candidates.

The ‘intending couple’ as the Act calls them, will be eligible if they have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.

The certificate of essentiality will be issued if the couple fulfills three conditions: a), a certificate of infertility of one or both from a district medical board; b), an order of parentage and custody of the surrogate child passed by a Magistrate’s court; c) insurance cover for the surrogate mother.

Who can become a surrogate mother?

Only a close relative of the couple can be a surrogate mother, one who is able to provide a medical fitness certificate. She should have been married, with a child of her own, and must be between 25 and 35 years, but can be a surrogate mother only once.

Source: This post is based on the article “The debates around the Surrogacy Act” published in The Hindu on 7th June 22.

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