Surrogacy in india

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-

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.

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-

These rights are part of women's right to privacy, dignity, and bodily integrity.

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.

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.

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.