Surrogacy Law Faces Challenge in Court : Daily Current Affairs

Relevance: GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Key Phrases: Surrogacy (Regulation) Act, 2021, Married couple, surrogacy, Medical grounds, Assisted Reproductive Technology (Regulation) Act, 2021, In-vitro-fertilisation, Gestational surrogacy.

Why in News?

  • A 31year old married woman has approached the Delhi High Court, along with another male petitioner, to question why marital status, age or gender should be the criteria for prohibiting someone from commissioning a surrogacy.

Context:

  • Under the Surrogacy (Regulation) Act, 2021 a married couple can opt for surrogacy only on medical grounds. The law defines a couple as a married Indian “man and woman” and prescribes an age band of 23 to 50 for the woman and 26 to 55 for the man to opt for surrogacy.
  • The petitioner has challenged in the court the surrogacy law and the Assisted Reproductive Technology (Regulation) Act, 2021 which provides a regulatory framework for surrogacy.

What is Surrogacy under the Surrogacy (Regulation) Act, 2021?

  • The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand it over to them after the birth. It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease. Surrogacy is prohibited for commercial purposes including for sale, prostitution or any other forms of exploitation.
  • Moreover, once the child is born, it will be deemed to be the biological child of the couple for all intents and purposes. Abortion of such a foetus is allowed only with the consent of the surrogate mother and the authorities and must adhere to the provisions of the Medical Termination of Pregnancy Act.
  • Altruistic surrogacy: It involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.
  • Commercial surrogacy: It includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

Assisted Reproductive Technology

  • ART is defined as all techniques used to obtain a pregnancy by handling the sperm or egg cell outside the human body and transferring the embryo into the woman’s reproductive tract. These include –
    • Sperm donation
    • In-vitro-fertilisation (IVF) (where the sperm is fertilized in a lab)
    • Gestational surrogacy (child is not biologically related to surrogate).

Surrogacy is of Two Major Types:

  1. Traditional surrogacy and
  2. Gestational surrogacy.

Traditional surrogacy is where the surrogate mother is also the biological mother of the child, whereas in gestational surrogacy, the surrogate gets implantation of an embryo in her womb for the intending couple, but the child is not genetically related to her. The 2021 Act only allows for gestational surrogacy as the Act prohibits any woman from acting as a surrogate by providing her gametes(reproductive cells).

Who can avail of Surrogacy?

  • Under the Act, a couple should procure certificates of eligibility and essentiality in order to have a child via surrogacy.
  • The couple is deemed ‘eligible’ if they have been married for five years, the wife is aged between 25-50 years and the husband is between 26-55 years. The couple must not have any living child (biological, adopted or surrogate.) A child with mental or physical disabilities, or one suffering from a life-threatening disorder or illness has been exempted from the above criterion.
  • The couple can get an ‘essential’ certificate if suffering from proven infertility of either partner certified by a District Medical Board, and an order of parentage and custody of the surrogate child, passed by a Magistrate’s court. They must also have insurance coverage for 16 months for the surrogate mother, covering any postpartum complications.

Do you know?

  • The Surrogacy (Regulation) Act 2021 came into effect from 25th January 2022.
  • In countries like Britain, America, Australia, the Netherlands and Denmark altruistic surrogacy is legal.
  • In countries such as France, Germany, Italy, Spain, Portugal and Bulgaria all forms of surrogacy is prohibited.

Issues raised related to Surrogacy (Regulation) Act, 2021:

  • Some people have contended that they stand ousted from availing the benefit of surrogacy as a reproductive choice which is discriminatory and in violation of Articles 14 and 21 of the Constitution.
  • Currently, the laws do not allow single men to have child through surrogacy, which violation of Articles 14 and 21 of the Constitution.
  • Married women can only avail surrogacy services if they are unable to produce a child due to medical conditions.
  • Women can only offer surrogacy if they are aged between 25 and 35 and married with at least one biological child.
  • The laws also require a surrogate to be genetically related to the couple who intend to have a child through this method.
  • It is argued that the best eligibility criteria to maximise the chances of finding the best surrogate mother would be any healthy woman above the age of majority and the needless conditions of being genetically related, of a particular age, married and already having at least one child only constrict the universe of available candidates who may otherwise become healthy surrogate mothers.
  • The personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution. Thus, the right of privacy of every citizen or person to be free from unwarranted governmental intrusion into matters fundamentally affecting a decision to bear or beget a child through surrogacy cannot be taken away.

Commercial Surrogacy in India- some Facts

  • Several villages in Gujarat are known for commercial surrogacy. As per reports, Anand, known for Amul’s dairy factory, has also acquired fame as India’s ‘surrogacy capital,’ offering lucrative monetary opportunities for impoverished women.
  • Dr. Nayana Patel, who runs the Akanksha Infertility Clinic in Anand, says, “A surrogate makes anywhere between Rs. 3 to 5 lakhs per pregnancy, depending on the commissioning parents, and the total cost of ”making a baby” is roughly Rs. 10 lakhs.”
  • Similarly in Hyderabad, IVF, surrogacy and egg donation have become a thriving business. Aspiring surrogate mothers are flocking to Hyderabad from places such as Rajahmundry, Srikakakulam, Mahabubnagar, West Godavari and Visakhapatnam.
  • In Mumbai, couples pay Rs. 12 to 15 lakh for one surrogacy, of which the surrogate mother earns Rs. 3 to 4.5 lakhs.
  • Such practices have now been thrown into quandary with the passage of surrogacy law and the Assisted Reproductive Technology (Regulation) Act, 2021.

Who Regulates Surrogacy?

  • The Centre and State governments are expected to constitute a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively, within 90 days of the passing of the Act.
  • This body is tasked with enforcing standards for surrogacy clinics, investigating breaches and recommending modifications.
  • Further, surrogacy clinics need to apply for registration within 60 days of the appointment of the appropriate authority.

Way Forward

  • As India is one of the major hubs of these practices, the Act is certainly a step in the right direction. There, however, needs to be a dynamic oversight to ensure that the law keeps up with rapidly evolving technology, demands of morality and societal changes.

Source: The Hindu

Mains Question:

Q. What do you understand by Assisted Reproductive Technology? Discuss the issues regarding the Surrogacy (Regulation) Act, 2021.