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Surrogacy in India

• To curb the exploitation faced by women due to the prevalence of commercial surrogacy, the parliament passed the Surrogacy Act in December 2021.
• According to the new act, surrogacy means a practice whereby one woman bears and gives birth to a child for an intending couple to hand over the child to the intending couple after birth.

Case laws on surrogacy-

• Baby Manjhi Yamada vs Union of India (2008)
• Japanese couples contracted some women for surrogacy.
• However, before the baby was born, the couple divorced. The father asked for custody of the child, but as per Indian law, a single father cannot adopt a girl child. Thus, the custodial rights of the child were given to the grandmother.

• Jan Balaz vs. Anand municipality(2009)
• Suchita Srivastava vs. Chandigarh administration(2009)-
• The supreme court held that the right to make reproductive choices fall under the right to life and personal liberty guaranteed under article 21 of the constitution and includes-
• Women's entitlement to carry a pregnancy to its full term
• To give birth
• These rights are part of women's right to privacy, dignity, and bodily integrity.

• Justice K.S.Puttaswamy vs. union of India(2018)- 
• Obtaining a 'certificate of infertility' from the district medical board violates the right to privacy, which has been recognized as a fundamental right.

K.Kalaiselvi vs Chennai Port Trust (2013)

• The supreme court held that "Sometimes the only choice for parents who want to produce a kid who is biologically linked to them is to use a surrogate."

Key provisions of the act-

• The act prohibits commercial surrogacy, but it allows altruistic surrogacy. Altruistic surrogacy means that the prime objective of surrogacy must be to help someone.
• The act has defined certain purposes for which surrogacy is permitted-
• Proven infertility- if the intending couple is suffering from proven infertility.
• It must be done only for altruistic purposes. It is not allowed to be done for commercial purposes.
• It is not to produce children for sale, prostitution, or exploitation.
• Any condition or disease specified through regulations
• Eligibility criteria for intending couples- the intending couple should have a 'certificate of essentiality' for proving that it is essential for them to have that baby and a certificate of eligibility for proving that they are eligible to have a baby. Such a certificate needs to be issued by the appropriate authority. 
• When the following requirements are met, the prospective couple will get a certificate of eligibility-
• The couple is an Indian citizen and has been married for at least five years.
• The wife should be between 26 to 50 years old, and the husband should be between 26 to 5 years.
• They must not have any surviving child who is biological, adopted, or surrogate; this would not include a child who is mentally or physically challenged or suffers from a life-threatening disorder or fatal illness.
• Eligibility criteria for surrogate mothers-
• She ought to be a close family member of the intended couple.
• She should be married and have a child of her own.
• The age of the surrogate mother should be between 25 and 35 years.
• A woman can become a surrogate mother only once in her lifetime.
• She needs to have a certificate proving her physical and mental health in order to be a surrogate.  

National and state surrogacy boards- the central and state governments should constitute the national and state surrogacy boards, respectively. 

• Functions of the national surrogacy board include-
• advising the central government on issues of surrogacy policy.
• Laying down the code of conduct for surrogacy clinics and
• supervising the functions of the state surrogacy board.
• Functions of the state surrogacy board-
• Monitoring the implementation of the provision of this act.
• Reviewing the activities of appropriate authorities at the state/union territory level.

Further, the surrogate mother can withdraw from the surgery before the embryo is implanted in her womb.

Need for surrogacy act 2021-

• Due to ongoing socio-economic disparities, disadvantaged women found a way to "rent their wombs" and earn money to cover their bills. As a result, India has become a global hotspot for infertility treatment.
• Regulating surrogacy in the nation had become necessary as, by 2012, India had been identified as the 'surrogacy capital' with an estimated value of $500 million in annual surrogacy tourism.
• The commercial surrogacy industry had grown unchecked due to a lack of particular legislation. As a result, proper laws were necessary to combat unethical practices relating to sex selection and surrogate exploitation.
• Surrogacy results in the commoditization of children, raising ethical concerns. Renting the womb interferes with nature and destroys the mother-child relationship.
• Legal issues- 
• An Australian couple hired a surrogate mother in 2012 and arbitrarily picked one of the twins.
• A Japanese couple started the process with a Gujarati surrogate mother in 2008, but they split up before the baby was born, and the infant had no takers.
• The 228th report of the Law Commission of India recommended prohibiting commercial surrogacy.

Critical analysis of the above act- 

• The provision that states that couples can adopt for surgery only on medical ground have been criticized because of the following reasons-
• Firstly it ignores the reproductive choices of women. As there might be women out there who are thought fit to produce a child, they must not want to produce their child through traditional means.
• The supreme court in the K.S. Puttaswamy judgment has also ruled that the reproductive choices of a woman are their constitutional right under the right to life and personal liberty enshrined under article 21 of the constitution.
• The provision stating that couples should be married for five years and should not have a living child ignores the aspirations of single unmarried parents, as some people do not want to get married but still want to be a parent.
• The provision for the surrogate mother to be a close relative of the couple and a married woman poses a severe challenge to the couple's privacy.
• The act defines couples as legally married Indian men and women above the age of 21 years and 18 years, respectively, thus ignoring the rights of the LGBTQ community.